Chapter I: State Territory (3)

(3) Military, are those State servitudes which are acquired for military purposes, such as the right to keep troops in a foreign fortress, or to let an armed force pass through foreign territory, or to demand that a town on foreign territory shall not be fortified, and the like.

(4) Economic, are those servitudes which are acquired for the purpose of commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign territorial waters, to build a railway on or lay a telegraph cable through foreign territory, and the like.

[Sidenote: Validity of State Servitudes.]

§ 207. Since State servitudes, in contradistinction to personal rights (rights _in personam_), are rights inherent to the object with which they are connected (rights _in rem_), they remain valid and may be exercised however the ownership of the territory to which they apply may change. Therefore, if, after the creation of a State servitude, the part of the territory affected comes by subjugation or cession under the territorial supremacy of another State, such servitude remains in force. Thus, when the Alsatian town of Hüningen became in 1871, together with the whole of Alsace, German territory, the State servitude created by the Treaty of Paris, 1815, that Hüningen should, in the interest of the Swiss canton of Basle, never be fortified, was not extinguished.[391] Thus, further, when in 1860 the former Sardinian provinces of Chablais and Faucigny became French, the State servitude created by article 92 of the Act of the Vienna Congress, 1815, that Switzerland should have temporarily during war the right to locate troops in these provinces, was not extinguished.[392]

[Footnote 391: Details in Clauss, pp. 15-17.]

[Footnote 392: Details in Clauss, pp. 8-15.]

It is a moot point whether military State servitudes can be exercised in time of war by a belligerent if the State with whose territory they are connected remains neutral. Must such State, for the purpose of upholding its neutrality, prevent the belligerent from exercising the respective servitude--for instance, the right of passage of troops?[393]

[Footnote 393: This question became practical when in 1900, during the South African war, Great Britain claimed, and Portugal was ready to grant, passage of troops through Portuguese territory in South Africa. See below, vol. II. §§ 306 and 323; Clauss, pp. 212-217; and Dumas in R.G. XVI. (1909), pp. 289-316.]

[Sidenote: Extinction of State Servitudes.]

§ 208. State servitudes are extinguished by agreement between the States concerned, or by express or tacit[394] renunciation on the part of the State in whose interest they were created. They are not, according to the correct opinion, extinguished by reason of the territory involved coming under the territorial supremacy of another State. But it is difficult to understand why, although State servitudes are called into existence through treaties, it is sometimes maintained that the clause _rebus sic stantibus_[395] cannot be applied in case a vital change of circumstances makes the exercise of a State servitude unbearable. It is a matter of course that in such case the restricted State must previously try to come to terms with the State which is the subject of the servitude. But if an agreement cannot be arrived at on account of the unreasonableness of the other party, the clause _rebus sic stantibus_ may well be resorted to.[396] The fact that the practice of the States does not provide any example of an appeal to this clause for the purpose of doing away with a State servitude proves only that such appeal has hitherto been unnecessary.

[Footnote 394: See Bluntschli, § 359 b. The opposition of Clauss (p. 219) and others to this sound statement of Bluntschli's is not justified.]

[Footnote 395: See below, § 539.]

[Footnote 396: See Bluntschli, § 359 d, and Pradier-Fodéré, II. No. 845. Clauss (p. 222) and others oppose this sound statement likewise.]

XI

MODES OF ACQUIRING STATE TERRITORY

Vattel, I. §§ 203-207--Hall, § 31--Westlake, I. pp.
84-116--Lawrence, §§ 74-78--Phillimore, I. §§ 222-225--Twiss, I.
§§ 113-139--Halleck, I. p. 154--Taylor, §§ 217-228--Wheaton, §§
161-163--Bluntschli, §§ 278-295--Hartmann, § 61--Heffter, §
69--Holtzendorff in Holtzendorff, II. pp. 252-255--Gareis, §
76--Liszt, § 10--Ullmann, § 92--Bonfils, No. 532--Despagnet, No.
378--Pradier-Fodéré, II. Nos. 781-787--Mérignhac, II. pp.
410-412--Rivier, I. § 12--Nys, II. pp. 1-3--Calvo, I. §
263--Fiore, I. Nos. 838-840--Martens, I. § 90--Heimburger, "Der
Erwerb der Gebietshoheit" (1888).

[Sidenote: Who can acquire State Territory?]

§ 209. Since States only and exclusively are subjects of the Law of Nations, it is obvious that, as far as the Law of Nations is concerned, States[397] solely can acquire State territory. But the acquisition of territory by an existing State and member of the Family of Nations must not be confounded, first, with the foundation of a new State, and, secondly, with the acquisition of such territory and sovereignty over it by private individuals or corporations as lies outside the dominion of the Law of Nations.

[Footnote 397: There is no doubt that no full-Sovereign State is, as a rule, prevented by the Law of Nations from acquiring more territory than it already owns, unless some treaty arrangement precludes it from so doing. As regards the question whether a neutralised State is, by its neutralisation, prevented from acquiring territory, see above, § 96, and below, § 215.]

(1) Whenever a multitude of individuals, living on or entering into such a part of the surface of the globe as does not belong to the territory of any member of the Family of Nations, constitute themselves as a State and nation on that part of the globe, a new State comes into existence. This State is not, by reason of its birth, a member of the Family of Nations. The formation of a new State is, as will be remembered from former statements,[398] a matter of fact, and not of law. It is through recognition, which is a matter of law, that such new State becomes a member of the Family of Nations and a subject of International Law. As soon as recognition is given, the new State's territory is recognised as the territory of a subject of International Law, and it matters not how this territory was acquired before the recognition.

[Footnote 398: See above, § 71.]

(2) Not essentially different is the case in which a private individual or a corporation acquires land with sovereignty over it in countries which are not under the territorial supremacy of a member of the Family of Nations. The actual proceeding in all such cases is that all such acquisition is made either by occupation of hitherto uninhabited land, for instance an island, or by cession from a native tribe living on the land. Acquisition of territory and sovereignty thereon in such cases takes place outside the dominion of the Law of Nations, and the rules of this law, therefore, cannot be applied. If the individual or corporation which has made the acquisition requires protection by the Law of Nations, they must either declare a new State to be in existence and ask for its recognition by the Powers, as in the case of the former Congo Free State,[399] or they must ask a member of the Family of Nations to acknowledge the acquisition as made on its behalf.[400]

[Footnote 399: See above, § 101. The case of Sir James Brooke, who acquired in 1841 Sarawak, in North Borneo, and established an independent State there, of which he became the Sovereign, may also be cited. Sarawak is under English protectorate, but the successor of Sir James Brooke is still recognised as Sovereign.]

[Footnote 400: The matter is treated with great lucidity by Heimburger, pp. 44-77, who defends the opinion represented in the text against Sir Travers Twiss (I. Preface, p. x.; also in R.I. XV. p. 547, and XVI. p. 237) and other writers. See also Ullmann, § 93.]

[Sidenote: Former Doctrine concerning Acquisition of Territory.]

§ 210. No unanimity exists among writers on the Law of Nations with regard to the modes of acquiring territory on the part of the members of the Family of Nations. The topic owes its controversial character to the fact that the conception of State territory has undergone a great change since the appearance of the science of the Law of Nations. When Grotius created that science, State territory used to be still, as in the Middle Ages, more or less identified with the private property of the monarch of the State. Grotius and his followers applied, therefore, the rules of Roman Law concerning the acquisition of private property to the acquisition of territory by States.[401] As nowadays, as far as International Law is concerned, every analogy to private property has disappeared from the conception of State territory, the acquisition of territory by a State can mean nothing else than the acquisition of _sovereignty_ over such territory. It is obvious that under these circumstances the rules of Roman Law concerning the acquisition of private property can no longer be applied. Yet the fact that they have been applied in the past has left traces which can hardly be obliterated; and they need not be obliterated, since they contain a good deal of truth in agreement with the actual facts. But the different modes of acquiring territory must be taken from the real practice of the States, and not from Roman Law, although the latter's terminology and common-sense basis may be made use of.

[Footnote 401: See above, § 168. The distinction between _imperium_ and _dominium_ in Seneca's _dictum_ that "omnia rex imperio possidet, singuli dominio" was well known, and Grotius, II. c. 3, § 4, quotes it, but the consequences thereof were nevertheless not deduced. (See Westlake, Chapters, pp. 129-133, and Westlake, I. pp. 84-88.)]

[Sidenote: What Modes of Acquisition of Territory there are.]

§ 211. States as living organisms grow and decrease in territory. If the historical facts are taken into consideration, different reasons may be found to account for the exercise of sovereignty by a State over the different sections of its territory. One section may have been ceded by another State, another section may have come into the possession of the owner in consequence of accretion, a third through subjugation, a fourth through occupation of no State's land. As regards a fifth section, a State may say that it has exercised its sovereignty over the same for so long a period that the fact of having had it in undisturbed possession is a sufficient title of ownership. Accordingly, five modes of acquiring territory may be distinguished, namely: cession, occupation, accretion, subjugation, and prescription. Most writers recognise these five modes. Some, however, do not recognise prescription; some assert that accretion creates nothing else than a modification of the territory of a State; and some do not recognise subjugation at all, or declare it to be only a special case of occupation. It is for these reasons that some writers recognise only two or three[402] modes of acquiring territory. Be that as it may, all modes, besides the five mentioned, enumerated by some writers, are in fact not special modes, but only special cases of cession.[403] And whatever may be the value of the opinions of publicists, so much is certain that the practice of the States recognises cession, occupation, accretion, subjugation, and prescription as distinct modes of acquiring territory.

[Footnote 402: Thus Gareis (§ 70) recognises cession and occupation only, whereas Heimburger (pp. 106-110) and Holtzendorff (II. p. 254) recognise cession, occupation, and accretion only.]

[Footnote 403: See below, § 216. Such alleged special modes are sale, exchange, gift, marriage contract, testamentary disposition, and the like.]

[Sidenote: Original and derivative Modes of Acquisition.]

§ 212. The modes of acquiring territory are correctly divided according as the title they give is derived from the title of a prior owner State, or not. Cession is therefore a derivative mode of acquisition, whereas occupation, accretion, subjugation, and prescription are original modes.[404]

[Footnote 404: Lawrence (§ 74) enumerates conquest (subjugation) and prescription besides cession as derivative modes. This is, however, merely the consequence of a peculiar conception of what is called a derivative mode of acquisition.]

XII

CESSION

Hall, § 35--Lawrence, § 76--Phillimore, I. §§ 252-273--Twiss, I. §
138--Walker, § 10--Halleck, I. pp. 154-157--Taylor, § 227--Moore,
I. §§ 83-86--Bluntschli, §§ 285-287--Hartmann, § 61--Heffter, §§
69 and 182--Holtzendorff in Holtzendorff, II. pp. 269-274--Gareis,
§ 70--Liszt, § 10--Ullmann, §§ 97-98--Bonfils, Nos.
364-371--Mérignhac, II. pp. 487-497--Despagnet, Nos.
381-391--Pradier-Fodéré, II. Nos. 817-819--Rivier, I. pp.
197-217--Nys, II. pp. 8-31--Calvo, I. § 266--Fiore, II. §§
860-861, and Code, No. 1053--Martens, I. § 91--Heimburger, "Der
Erwerb der Gebietshoheit" (1888), pp. 110-120.

[Sidenote: Conception of cession of State Territory.]

§ 213. Cession of State territory is the transfer of sovereignty over State territory by the owner State to another State. There is no doubt whatever that such cession is possible according to the Law of Nations, and history presents innumerable examples of such transfer of sovereignty. The Constitutional Law of the different States may or may not lay down special rules[405] for the transfer or acquisition of territory. Such rules can have no direct influence upon the rules of the Law of Nations concerning cession, since Municipal Law can neither abolish existing nor create new rules of International Law.[406] But if such municipal rules contain constitutional restrictions on the Government with regard to cession of territory, these restrictions are so far important that such treaties of cession concluded by heads of States or Governments as violate these restrictions are not binding.[407]

[Footnote 405: See above, § 168.]

[Footnote 406: See above, § 21.]

[Footnote 407: See below, § 497.]

[Sidenote: Subjects of cession.]

§ 214. Since cession is a bilateral transaction, it has two subjects--namely, the ceding and the acquiring State. Both subjects must be States, and only those cessions in which both subjects are States concern the Law of Nations. Cessions of territory made to private persons and to corporations[408] by native tribes or by States outside the dominion of the Law of Nations do not fall within the sphere of International Law, neither do cessions of territory by native tribes made to States[409] which are members of the Family of Nations. On the other hand, cession of territory made to a member of the Family of Nations by a State as yet outside that family is real cession and a concern of the Law of Nations, since such State becomes through the treaty of cession in some respects a member of that family.[410]

[Footnote 408: See above, § 209, No. 2.]

[Footnote 409: See below, §§ 221 and 222.]

[Footnote 410: See above, § 103.]

[Sidenote: Object of cession.]

§ 215. The object of cession is sovereignty over such territory as has hitherto already belonged to another State. As far as the Law of Nations is concerned, every State as a rule can cede a part of its territory to another State, or by ceding the whole of its territory can even totally merge in another State. However, since certain parts of State territory, as for instance rivers and the maritime belt, are inalienable appurtenances of the land, they cannot be ceded without a piece of land.[411]

[Footnote 411: See above, §§ 175 and 185.]

The controverted question whether permanently neutralised parts of a not permanently neutralised State can be ceded to another State must be answered in the affirmative,[412] although the Powers certainly can exercise an intervention by right. On the other hand, a permanently neutralised State could not, except in the case of mere frontier regulation, cede a part of its neutralised territory to another State without the consent of the Powers.[413] Nor could a State under suzerainty or protectorate cede a part or the whole of its territory to a third State without the consent of the superior State. Thus, the Ionian Islands could not in 1863 have merged in Greece without the consent of Great Britain, which exercised a protectorate over these islands.

[Footnote 412: Thus in 1860 Sardinia ceded her neutralised provinces of Chablais and Faucigny to France. See above, §207.]

[Footnote 413: See above, § 96, and the literature there quoted.]

[Sidenote: Form of cession.]

§ 216. The only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war, and the cession may be one with or without compensation.

If a cession of territory is the outcome of war, it is the treaty of peace which stipulates the cession among its other provisions. Such cession is regularly one without compensation, although certain duties may be imposed upon the acquiring State, as, for instance, of taking over a part of the debts of the ceding State corresponding to the extent and importance of the ceded territory, or that of giving the individuals domiciled on the ceded territory the option to retain their old citizenship or, at least, to emigrate.

Cessions which are the outcome of peaceable negotiations may be agreed upon by the interested States from different motives and for different purposes. Thus Austria, during war with Prussia and Italy in 1866, ceded Venice to France as a gift, and some weeks afterwards France on her part ceded Venice to Italy. The Duchy of Courland ceded in 1795 its whole territory to and voluntarily merged thereby in Russia, in the same way the then Free Town of Mulhouse merged in France in 1798, the Congo Free State in Belgium in 1908, and the Empire of Korea in Japan in 1911.

Cessions have in the past often been effected by transactions which are analogous to transactions in private business life. As long as absolutism was reigning over Europe, it was not at all rare for territory to be ceded in _marriage contracts_ or by _testamentary dispositions_.[414] In the interest of frontier regulations, but also for other purposes, _exchanges_ of territory frequently take place. _Sale_ of territory is quite usual; as late as 1868 Russia sold her territory in America to the United States for 7,200,000 dollars, and in 1899 Spain sold the Caroline Islands to Germany for 25,000,000 pesetas. _Pledge_ and _lease_ are also made use of. Thus, the then Republic of Genoa pledged Corsica to France in 1768, Sweden pledged Wismar to Mecklenburg in 1803; China[415] leased in 1898 Kiaochau to Germany,[416] Wei-Hai-Wei and the land opposite the island of Hong Kong to Great Britain,[417] and Port Arthur to Russia.

[Footnote 414: Phillimore, I. §§ 274-276, enumerates many examples of such cession. The question whether the monarch of a State under absolute government could nowadays by a testamentary disposition cede territory to another State must, I believe, be answered in the affirmative.]

[Footnote 415: See above, § 171, No. 3. Cession may also take place under the disguise of an agreement according to which territory comes under the "administration" or under the "use, occupation, and control" of a foreign State. See above, § 171, Nos. 2 and 4.]

[Footnote 416: See Martens, N.R.G. 2nd Ser. XXX. (1904), p. 326.]

[Footnote 417: See Martens, N.R.G. 2nd Ser. XXXII. (1905), pp. 89 and 90.]

Whatever may be the motive and the purpose of the transaction, and whatever may be the compensation, if any, for the cession, the ceded territory is transferred to the new sovereign with all the international obligations[418] locally connected with the territory (_Res transit cum suo onere_, and _Nemo plus juris transferre potest, quam ipse habet_).

[Footnote 418: How far a succession of States takes place in the case of cession of territory has been discussed above, § 84.]

[Sidenote: Tradition of the ceded Territory.]

§ 217. The treaty of cession must be followed by actual tradition of the territory to the new owner State, unless such territory is already occupied by the new owner, as in the case where the cession is the outcome of war and the ceded territory has been during such war in the military occupation of the State to which it is now ceded. But the validity of the cession does not depend upon tradition,[419] the cession being completed by ratification of the treaty of cession, and the capability of the new owner to cede the acquired territory to a third State at once without taking actual possession of it.[420] But of course the new owner State cannot exercise its territorial supremacy thereon until it has taken physical possession of the ceded territory.

[Footnote 419: This is controversial. Many writers--see, for instance, Rivier, I. p. 203--oppose the opinion presented in the text.]

[Footnote 420: Thus France, to which Austria ceded in 1859 Lombardy, ceded this territory on her part to Sardinia without previously having actually taken possession of it.]

[Sidenote: Veto of third Powers.]

§ 218. As a rule, no third Power has the right of _veto_ with regard to a cession of territory. Exceptionally, however, such right may exist. It may be that a third Power has by a previous treaty acquired a right of pre-emption concerning the ceded territory, or that some early treaty has created another obstacle to the cession, as, for instance, in the case of permanently neutralised parts of a not-permanently neutralised State.[421] And the Powers have certainly the right of _veto_ in case a permanently neutralised State desires to increase its territory by acquiring land through cession from another State.[422] But even where no right of _veto_ exists, a third Power might intervene for political reasons. For there is no duty on the part of third States to acquiesce in such cessions of territory as endanger the balance of power or are otherwise of vital importance.[423] And a strong State will practically always interfere in case a cession of such a kind as menaces its vital interests is agreed upon. Thus, when in 1867 the reigning King of Holland proposed to sell Luxemburg to France, the North German Confederation intervened, and the cession was not effected, but Luxemburg became permanently neutralised.

[Footnote 421: See above, § 215.]

[Footnote 422: See above, §§ 209 and 215.]

[Footnote 423: See above, § 136.]

[Sidenote: Plebiscite and option.]

§ 219. As the object of cession is sovereignty over the ceded territory, all such individuals domiciled thereon as are subjects of the ceding State become _ipso facto_ by the cession subjects[424] of the acquiring State. The hardship involved in the fact that in all cases of cession the inhabitants of the territory lose their old citizenship and are handed over to a new Sovereign whether they like it or not, has created a movement in favour of the claim that no cession shall be valid until the inhabitants have by a plebiscite[425] given their consent to the cession. And several treaties[426] of cession concluded during the nineteenth century stipulate that the cession shall only be valid provided the inhabitants consent to it through a plebiscite. But it is doubtful whether the Law of Nations will ever make it a condition of every cession that it must be ratified by a plebiscite.[427] The necessities of international policy may now and then allow or even demand such a plebiscite, but in most cases they will not allow it.

[Footnote 424: See Keith, "The Theory of State Succession, &c." (1907), pp. 42-45; Cogordan, "La Nationalité" (1890), pp. 317-400; Moore, III. § 379.]

[Footnote 425: See Stoerk, "Option und Plebiscite" (1879); Rivier, I. p. 204; Freudenthal, "Die Volksabstimmung bei Gebietsabtretungen und Eroberungen" (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, § 97.]

[Footnote 426: See Rivier, I. p. 210, where all these treaties are enumerated.]

[Footnote 427: Although Grotius (II. c. VI. § 4) taught this to be necessary.]

The hardship of the inhabitants being handed over to a new Sovereign against their will can be lessened by a stipulation in the treaty of cession binding the acquiring State to give the inhabitants of the ceded territory the option of retaining their old citizenship on making an express declaration. Many treaties of cession concluded during the second half of the nineteenth century contain this stipulation. But it must be emphasised that, failing a stipulation expressly forbidding it, the acquiring State may expel those inhabitants who have made use of the option and retained their old citizenship, since otherwise the whole population of the ceded territory might actually consist of aliens and endanger the safety of the acquiring State.

The option to emigrate within a certain period, which is frequently stipulated in favour of the inhabitants of ceded territory, is another means of averting the charge that inhabitants are handed over to a new Sovereign against their will. Thus article 2 of the Peace Treaty of Frankfort, 1871, which ended the Franco-German war, stipulated that the French inhabitants of the ceded territory of Alsace and Lorraine should up to October 1, 1872, enjoy the privilege of transferring their domicile from the ceded territory to French soil.[428]

[Footnote 428: The important question whether subjects of the ceding States who are born on the ceded territory but have their domicile abroad become _ipso facto_ by the cession subjects of the acquiring State, must, I think, be answered in the negative, unless special treaty arrangements stipulate the contrary. Therefore, Frenchmen born in Alsace but domiciled at the time of the cession in Great Britain, would not have lost their French citizenship through the cession to Germany but for article 1, part 2, of the additional treaty of Dec. 11, 1871, to the Peace Treaty of Frankfort. (Martens, N.R.G. XX. p. 847.) See Bonfils, No. 427, and Cogordan, "La Nationalité, &c." (1890), p. 361.]

XIII

OCCUPATION

Hall, §§ 32-34--Westlake, I. pp. 96-111, 119-133--Lawrence, §
74--Phillimore, I. §§ 236-250--Twiss, I. §§ 118-126--Halleck, I.
p. 154--Taylor, §§ 221-224--Walker, § 9--Wharton, I. § 2--Moore,
I. §§ 80-81--Wheaton, §§ 165-174--Bluntschli, §§
278-283--Hartmann, § 61--Heffter, § 70--Holtzendorff in
Holtzendorff, II. pp. 255-266--Gareis, § 70--Liszt, § 10--Ullmann,
§§ 93-96--Bonfils, Nos. 536-563--Despagnet, Nos.
329-399--Mérignhac, II. pp. 419-487--Pradier-Fodéré, II. Nos.
784-802--Rivier, I. pp. 188-197--Nys, II. pp. 47-108--Calvo, I. §§
266-282--Fiore, II. Nos. 841-849, and Code, Nos.
1054-1067--Martens, I. § 90--Tartarin, "Traité de l'occupation"
(1873)--Westlake, Chapters, pp. 155-187--Heimburger, "Der Erwerb
der Gebietshoheit" (1888), pp. 103-155--Salomon, "L'occupation des
territoires sans maître" (1889)--Jèze, "Étude théorique et
pratique sur l'occupation, &c." (1896)--Macdonell in the _Journal
of the Society of Comparative Legislation_, New Series, I. (1899),
pp. 276-286--Waultrin in R.G. XV. (1908), pp. 78, 185, 401.

[Sidenote: Conception of Occupation.]

§ 220. Occupation is the act of appropriation by a State through which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another State. Occupation as a mode of acquisition differs from subjugation[429] chiefly in so far as the conquered and afterwards annexed territory has hitherto belonged to another State. Again, occupation differs from cession in so far as through cession the acquiring State receives sovereignty over the respective territory from the former owner State. In contradistinction to cession, which is a derivative mode of acquisition, occupation is therefore an original mode. And it must be emphasised that occupation can only take place by and for a State;[430] it must be a State act, that is, it must be performed in the service of a State, or it must be acknowledged by a State after its performance.

[Footnote 429: See below, § 236.]

[Footnote 430: See above, § 209.]

[Sidenote: Object of Occupation.]

§ 221. Only such territory can be the object of occupation as is no State's land, whether entirely uninhabited, as _e.g._ an island, or inhabited by natives whose community is not to be considered as a State. Even civilised individuals may live and have private property on a territory without any union by them into a State proper which exercises sovereignty over such territory. And natives may live on a territory under a tribal organisation which need not be considered a State proper. But a part or the whole of the territory of any State, even although such State is entirely outside the Family of Nations, is not a possible object of occupation, and it can only be acquired through cession[431] or subjugation. On the other hand, a territory which belonged at one time to a State but has been afterwards abandoned, is a possible object for occupation on the part of another State.[432]

[Footnote 431: See above, § 214.]

[Footnote 432: See below, §§ 228 and 247.]

Although the Open Sea is free and is, therefore, not the object of occupation, the subsoil[433] of the bed of the Open Sea may become the object of occupation through driving mines and piercing tunnels from the coast.[434]

[Footnote 433: See below, §§ 287_c_ and 287_d_.]

[Footnote 434: When, in 1909, Admiral Peary reached the North Pole and hoisted the flag of the United States the question was discussed whether the North Pole could be the object of occupation. The question must, I believe, be answered in the negative since there is no land on the Pole. See Scott in A.J. III. (1909), pp. 928-941 and Balch in A.J. IV. (1910), pp. 265-275.]

[Sidenote: Occupation how effected.]

§ 222. Theory and practice agree nowadays upon the rule that occupation is effected through taking possession of and establishing an administration over the territory in the name of and for the acquiring State. Occupation thus effected is _real_ occupation, and, in contradistinction to _fictitious_ occupation, is named _effective_ occupation. Possession and administration are the two essential facts that constitute an effective occupation.

(1) The territory must really be taken into possession by the occupying State. For this purpose it is necessary that the respective State should take the territory under its sway (_corpus_) with the intention to acquire sovereignty over it (_animus_). This can only be done by a settlement on the territory accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty. The necessary formal act is usually performed either by the publication of a proclamation or by the hoisting of a flag. But such formal act by itself constitutes fictitious occupation only, unless there is left on the territory a settlement which is able to keep up the authority of the flag. On the other hand, it is irrelevant whether or not some agreement is made with the natives by which they submit themselves to the sway of the occupying State. Any such agreement is usually neither understood nor appreciated by them, and even if the natives really do understand the meaning, such agreements have a moral value only.[435]

[Footnote 435: If an agreement with natives were legally important, the respective territory would be acquired by cession, and not by occupation. But although it is nowadays quite usual to obtain a cession from a native chief, this is, nevertheless, not cession in the technical sense of the term in International Law; see above, § 214.]

(2) After having, in the aforementioned way, taken possession of a territory, the possessor must establish some kind of administration thereon which shows that the territory is really governed by the new possessor. If within a reasonable time after the act of taking possession the possessor does not establish some responsible authority which exercises governing functions, there is then no effective occupation, since in fact no sovereignty of a State is exercised over the territory.

[Sidenote: Inchoate Title of Discovery.]

§ 223. In former times the two conditions of possession and administration which now make the occupation effective were not considered necessary for the acquisition of territory through occupation. In the age of the discoveries, States maintained that the fact of discovering a hitherto unknown territory was sufficient reason for considering it as acquired through occupation by the State in whose service the discoverer made his explorations. And although later on a real taking possession of the territory was considered necessary for its occupation, it was not until the eighteenth century that the writers on the Law of Nations postulated an _effective_ occupation as necessary,[436] and it was not until the nineteenth century that the practice of the States accorded with this postulate. But although nowadays discovery does not constitute acquisition through occupation, it is nevertheless not without importance. It is agreed that discovery gives to the State in whose service it was made an _inchoate_ title; it "acts as a temporary bar to occupation by another State"[437] within such a period as is reasonably sufficient for effectively occupying the discovered territory. If such period lapses without any attempt by the discovering State to turn its _inchoate_ title into a _real_ title of occupation, such inchoate title perishes, and any other State can now acquire the territory by means of an effective occupation.

[Footnote 436: See Vattel, I. § 208.]

[Footnote 437: Thus Hall, § 32.]

[Sidenote: Notification of Occupation to other Powers.]

§ 224. No rule of the Law of Nations exists which makes notification of occupation to other Powers a necessary condition of its validity. But as regards all future occupations on the _African_ coast the Powers assembled at the Berlin Congo Conference in 1884-1885 have by article 34 of the General Act[438] of this Conference stipulated that occupation shall be notified to one another, so that such notification is now a condition of the validity of certain occupations in Africa. And there is no doubt that in time this rule will either by custom or by treaty be extended from occupations on the African coast to occupations everywhere else.

[Footnote 438: See Martens, N.R.G. 2nd Ser. X. p. 426.]

[Sidenote: Extent of Occupation.]

§ 225. Since an occupation is valid only if effective, it is obvious that the extent of an occupation ought only to reach over so much territory as is effectively occupied. In practice, however, the interested States have neither in the past nor in the present acted in conformity with such a rule; on the contrary, they have always tried to attribute to their occupation a much wider area. Thus it has been maintained that an effective occupation of the land at the mouth of a river is sufficient to bring under the sovereignty of the occupying State the whole territory through which such river and its tributaries run up to the very crest of the watershed.[439] Again, it has been maintained that, when a coast line has been effectively occupied, the extent of the occupation reaches up to the watershed of all such rivers as empty into the coast line.[440] And it has, thirdly, been asserted that effective occupation of a territory extends the sovereignty of the possessor also over neighbouring territories as far as it is necessary for the integrity, security, and defence of the really occupied land.[441] But all these and other fanciful assertions have no basis to rest upon. In truth, no general rule can be laid down beyond the above, that occupation reaches as far as it is effective. How far it is effective is a question of the special case. It is obvious that when the agent of a State takes possession of a territory and makes a settlement on a certain spot of it, he intends thereby to acquire a vast area by his occupation. Everything depends, therefore, upon the fact how far around the settlement or settlements the established responsible authority that governs the territory in the name of the possessor succeeds in gradually extending the established sovereignty. The payment of a tribute on the part of tribes settled far away, the fact that flying columns of the military or the police sweep, when necessary, remote spots, and many other facts, can show how far round the settlements the possessor is really able to assert the established authority. But it will always be difficult to mark exactly in this way the boundary of an effective occupation, since naturally the tendency prevails to extend the sway constantly and gradually over a wider area. It is, therefore, a well-known fact that disputes concerning the boundaries of occupations can only rarely be decided on the basis of strict law; they must nearly always be compromised, whether by a treaty or by arbitration.[442]

[Footnote 439: Claim of the United States in the Oregon Boundary dispute (1827) with Great Britain. See Twiss, I. §§ 126 and 127, and his "The Oregon Question Examined" (1846); Phillimore, I. § 250; Hall, § 34.]

[Footnote 440: Claim of the United States in their dispute with Spain concerning the boundary of Louisiana (1803), approved of by Twiss, I. § 125.]

[Footnote 441: This is the so-called "right of contiguity," approved of by Twiss, I. §§ 124 and 131.]

[Footnote 442: The Institute of International Law, in 1887, at its meeting in Lausanne, adopted a "Projet de déclaration internationale relatif aux occupations de territoires," comprising ten articles; see Annuaire, X. p. 201.]

[Sidenote: Protectorate as Precursor of Occupation.]

§ 226. The growing desire to acquire vast territories as colonies on the part of States unable at once to occupy effectively such territories has, in the second half of the nineteenth century, led to the contracting of agreements with the chiefs of natives inhabiting unoccupied territories, by which these chiefs commit themselves to the "protectorate" of States that are members of the Family of Nations. These so-called protectorates are certainly not protectorates in the technical sense of the term designating the relation that exists between a strong and a weak State through a treaty by which the weak State surrenders itself into the protection of the strong and transfers to the latter the management of its more important international relations.[443] Neither can they be compared with the protectorate of members of the Family of Nations exercised over such non-Christian States as are outside that family,[444] because the respective chiefs of natives are not the heads of States, but heads of tribal communities only. Such agreements, although they are named "Protectorates," are nothing else than steps taken to exclude other Powers from occupying the respective territories. They give, like discovery, an inchoate title, and are preparations and precursors of future occupations.

[Footnote 443: See above, §§ 92 and 93.]

[Footnote 444: See above, § 94.]

[Sidenote: Spheres of influence.]

§ 227. The uncertainty of the extent of an occupation and the tendency of every colonising State to extend its occupation constantly and gradually into the interior, the "Hinterland," of an occupied territory, has led several States which have colonies in Africa to secure for themselves "spheres of influence" by international treaties with other interested Powers. Spheres of influence are therefore the names of such territories as are exclusively reserved for future occupation on the part of a Power which has effectively occupied adjoining territories. In this way disputes are avoided for the future, and the interested Powers can gradually extend their sovereignty over vast territories without coming into conflict with other Powers. Thus, to give some examples, Great Britain has concluded treaties regarding spheres of influence with Portugal[445] in 1890, with Italy[446] in 1891, with Germany[447] in 1886 and 1890, and with France[448] in 1898.[449]

[Footnote 445: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.]

[Footnote 446: See Martens, N.R.G. 2nd Ser. XVIII. p. 175.]

[Footnote 447: See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p. 895.]

[Footnote 448: See Martens, N.R.G. 2nd Ser. XXIX. p. 116.]

[Footnote 449: Protectorates and Spheres of Influence are exhaustively treated in Hall, "Foreign Powers and Jurisdiction of the British Crown," §§ 92-100; but Hall fails to distinguish between protectorates over Eastern States and protectorates over native tribes.]

[Sidenote: Consequences of Occupation.]

§ 228. As soon as a territory is occupied by a member of the Family of Nations, it comes within the sphere of the Law of Nations, because it constitutes a portion of the territory of a subject of International Law. No other Power can acquire it hereafter through occupation, unless the present possessor has either intentionally withdrawn from it or has been successfully driven away by the natives without making efforts, or without capacity, to re-occupy it.[450] On the other hand, the Power which now exercises sovereignty over the occupied territory is hereafter responsible for all events of international importance on the territory. Such Power has in especial to keep up a certain order among the native tribes in order to restrain them from acts of violence against neighbouring territories, and has eventually to punish them for such acts.

[Footnote 450: See below, § 247.]

A question of some importance is how far occupation affects private property of the inhabitants of the occupied territory. As according to the modern conception of State territory the latter is not identical with private property of the State, occupation brings a territory under the sovereignty only of the occupying State, and therefore in no wise touches or affects existing private property of the inhabitants. In the age of the discoveries, occupation was indeed considered to include a title to property over the whole occupied land, but nowadays this can no longer be maintained. Being now their sovereign, the occupying State may impose any burdens it likes on its new subjects, and may, therefore, even confiscate their private property; but occupation as a mode of acquiring territory does not of itself touch or affect private property thereon. If the Municipal Law of the occupying State does give a title to private property over the whole occupied land, such title is not based on International Law.

XIV

ACCRETION

Grotius, II. c. 8, §§ 8-16--Hall, § 37--Lawrence, §
75--Phillimore, I. §§ 240-241--Twiss, I. §§ 131 and 154--Moore, I.
§ 82--Bluntschli, §§ 294-295--Hartmann, § 61--Heffter, §
69--Holtzendorff in Holtzendorff, II. pp. 266-268--Gareis, §
20--Liszt, § 10--Ullmann, § 92--Bonfils, No. 533--Despagnet, No.
387--Pradier-Fodéré, II. Nos. 803-816--Rivier, I. pp.
179-180--Nys, II. pp. 3-7--Calvo, I. § 266--Fiore, II. No. 852,
and Code, Nos. 1068-1070--Martens, I. § 90--Heimburger, "Der
Erwerb der Gebietshoheit" (1888), p. 107.

[Sidenote: Conception of Accretion.]

§ 229. Accretion is the name for the increase of land through new formations. Such new formations may be a modification only of the existing State territory, as, for instance, where an island rises within such river or a part of it as is totally within the territory of one and the same State; and in such case there is no increase of territory to correspond with the increase of land. On the other hand, many new formations occur which really do enlarge the territory of the State to which they accrue, as, for instance, where an island rises within the maritime belt. And it is a customary rule of the Law of Nations that enlargement of territory, if any, created through new formations, takes place _ipso facto_ by the accretion, without the State concerned taking any special step for the purpose of extending its sovereignty. Accretion must, therefore, be considered as a mode of acquiring territory.

[Sidenote: Different kinds of Accretion.]

§ 230. New formations through accretion may be artificial or natural. They are artificial if they are the outcome of human work. They are natural if they are produced through operation of nature. And within the circle of natural formations different kinds must again be distinguished--namely, alluvions, deltas, new-born islands, and abandoned river beds.

[Sidenote: Artificial Formations.]

§ 231. Artificial formations are embankments, breakwaters, dykes, and the like, built along the river or the coast-line of the sea. As such artificial new formations along the bank of a boundary river may more or less push the volume of water so far as to encroach upon the other bank of the river, and as no State is allowed to alter the natural condition of its own territory to the disadvantage[451] of the natural conditions of a neighbouring State territory, a State cannot build embankments, and the like, of such kind without a previous agreement with the neighbouring State. But every State may construct such artificial formations as far into the sea beyond the low-water mark as it likes, and thereby gain considerably in land and also in territory, since the extent of the at least three miles wide maritime belt is now to be measured from the extended shore.

[Footnote 451: See above, § 127.]

[Sidenote: Alluvions.]

§ 232. Alluvion is the name for an accession of land washed up on the sea-shore or on a river-bank by the waters. Such accession is as a rule produced by a slow and gradual process, but sometimes also through a sudden act of violence, the stream detaching a portion of the soil from one bank of a river, carrying it over to the other bank, and embedding it there so as to be immovable (_avulsio_). Through alluvions the land and also the territory of a State may be considerably enlarged. For, if the alluvion takes place on the shore, the extent of the territorial maritime belt is now to be measured from the extended shore. And, if the alluvion takes place on the one bank of a boundary river, and the course of the river is thereby naturally so altered that the waters in consequence cover a part of the other bank, the boundary line, which runs through the middle or through the mid-channel,[452] may thereby be extended into former territory of the other riparian State.

[Footnote 452: See above, § 199, No. 1.]

[Sidenote: Deltas.]

§ 233. Similar to alluvions are Deltas. Delta is the name for a tract of land at the mouth of a river shaped like the Greek letter Δ, which land owes its existence to a gradual deposit by the river of sand, stones, and earth on one particular place at its mouth. As the Deltas are continually increasing, the accession of land they produce may be very considerable, and such accession is, according to the Law of Nations, considered an accretion to the land of the State to whose territory the mouth of the respective river belongs, although the Delta may be formed outside the territorial maritime belt. It is evident that in the latter case an increase of territory is the result, since the at least three miles wide maritime belt is now to be measured from the shore of the Delta.

[Sidenote: New-born Islands.]

§ 234. The same and other natural processes which create alluvions on the shore and banks, and Deltas at the mouths of rivers, lead to the birth of new islands. If they rise on the High Seas outside the territorial maritime belt, they are no State's land, and may be acquired through occupation on the part of any State. But if they rise in rivers, lakes, and within the maritime belt, they are, according to the Law of Nations, considered accretions to the neighbouring land. It is for this reason that such new islands in boundary rivers as rise within the boundary line of one of the riparian States accrue to the land of such State, and that, on the other hand, such islands as rise upon the boundary line are divided into parts by it, the respective parts accruing to the land of the riparian States concerned. If an island rises within the territorial maritime belt, it accrues to the land of the littoral State, and the extent of the maritime belt is now to be measured from the shore of the new-born island.

An illustrative example is the case[453] of the _Anna_. In 1805, during war between Great Britain and Spain, the British privateer _Minerva_ captured the Spanish vessel _Anna_ near the mouth of the River Mississippi. When brought before the British Prize Court, the United States claimed the captured vessel on the ground that she was captured within the American territorial maritime belt. Lord Stowell gave judgment in favour of this claim, because, although it appeared that the capture did actually take place more than three miles off the coast of the continent, the place of capture was within three miles of some small mud-islands composed of earth and trees drifted down into the sea.

[Footnote 453: See 5 C. Rob. 373.]

[Sidenote: Abandoned Riverbeds.]

§ 235. It happens sometimes that a river abandons its bed entirely or dries up altogether. If such river was a boundary river, the abandoned bed is now the natural boundary. But often the old boundary line cannot be ascertained, and in such cases the boundary line is considered to run through the middle of the abandoned bed, and the portions _ipso facto_ accrue to the land of the riparian States, although the territory of one of these States may become thereby enlarged, and that of the other diminished.

XV

SUBJUGATION

Vattel, III. §§ 199-203--Hall, §§ 204-205--Lawrence, §
77--Halleck, II. pp. 467-498--Taylor, § 220--Walker, §
11--Wheaton, § 165--Moore, I. § 87--Bluntschli, §§ 287-289,
701-702--Heffter, § 178--Liszt, § 10--Ullmann, §§ 92 and
97--Bonfils, No. 535--Despagnet, Nos. 387-390--Rivier, I. pp.
181-182, II. 436-441--Nys, II. pp. 40-46--Calvo, V. §§ 3117,
3118--Fiore, II. No. 863, III. No. 1693, and Code, Nos.
1078-1081--Martens, I. § 91--Holtzendorff, "Eroberung und
Eroberungsrecht" (1871)--Heimburger, "Der Erwerb der
Gebietshoheit" (1888), pp. 121-132--Westlake in _The Law Quarterly
Review_, XVII. (1901), p. 392.

[Sidenote: Conception of Conquest and of Subjugation.]

§ 236. Conquest is the taking possession of enemy territory through military force in time of war. Conquest alone does not _ipso facto_ make the conquering State the sovereign of the conquered territory, although such territory comes through conquest for the time under the sway of the conqueror. Conquest is only a mode of acquisition if the conqueror, after having firmly established the conquest, formally annexed the territory. Such annexation makes the enemy State cease to exist and thereby brings the war to an end. And as such ending of war is named subjugation, it is conquest followed by subjugation, and not conquest alone, which gives a title and is a mode of acquiring territory.[454] It is, however, quite usual to speak of conquest as a title, and everybody knows that subjugation after conquest is thereby meant. But it must be specially mentioned that, if a belligerent conquers a part of the enemy territory and makes afterwards the vanquished State cede the conquered territory in the treaty of peace, the mode of acquisition is not subjugation but cession.[455]

[Footnote 454: Concerning the distinction between conquest and subjugation, see below, vol. II. § 264.]

[Footnote 455: See above, §§ 216 and 219.]

[Sidenote: Subjugation in Contradistinction to Occupation.]

§ 237. Some writers[456] maintain that subjugation is only a special case of occupation, because, as they assert, through conquest the enemy territory becomes no State's land and the conqueror can acquire it by turning his military occupation into absolute occupation. Yet this opinion cannot be upheld, because military occupation, which is conquest, in no way makes enemy territory no State's land. Conquered enemy territory, although actually in possession and under the sway of the conqueror, remains legally under the sovereignty of the enemy until through annexation it comes under the sovereignty of the conqueror. Annexation turns the conquest into subjugation. It is the very annexation which _uno actu_ makes the vanquished State cease to exist and brings the territory under the conqueror's sovereignty. Thus the subjugated territory has not for one moment been no State's land, but comes from the enemy's into the conqueror's sovereignty, although not through cession, but through annexation.

[Footnote 456: Holtzendorff, II. p. 255; Heimburger, p. 128; Salomon, p. 24.]

[Sidenote: Justification of Subjugation as a Mode of Acquisition.]

§ 238. As long as a Law of Nations has been in existence, the States as well as the vast majority of writers have recognised subjugation as a mode of acquiring territory. Its justification lies in the fact that war is a contention between States for the purpose of overpowering one another. States which go to war know beforehand that they risk more or less their very existence, and that it may be a necessity for the victor to annex the conquered enemy territory, be it in the interest of national unity or of safety against further attacks, or for other reasons. One must hope that the time will come when war will disappear entirely, but, as long as war exists, subjugation will also be recognised. If some writers[457] refuse to recognise subjugation at all as a mode of acquiring territory, they show a lack of insight into the historical development of States and nations.[458]

[Footnote 457: Bonfils, No. 535; Fiore, II. No. 863, III. No. 1693, and Code N. See also Despagnet, Nos. 387-390.]

[Footnote 458: It should be mentioned that the Pan-American Congress at Washington, 1890, passed a resolution that conquest should hereafter not be a mode of acquisition of territory in America; see Moore, I. § 87.]

[Sidenote: Subjugation of the whole or of a part of Enemy Territory.]

§ 239. Subjugation is as a rule a mode of acquiring the entire enemy territory. The actual process is regularly that the victor destroys the enemy military forces, takes possession of the enemy territory, and then annexes it, although the head and the Government of the extinguished State might have fled, might protest, and still keep up a claim. Thus after the war with Austria and her allies in 1866, Prussia subjugated the territories of the Duchy of Nassau, the Kingdom of Hanover, the Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main; and Great Britain subjugated in 1900 the territories of the Orange Free State and the South African Republic.

But it is possible, although it will nowadays hardly occur, for a State to conquer and annex a part of enemy territory, whether the war ends by a Treaty of Peace in which the vanquished State, without ceding the conquered territory, submits silently[459] to the annexation, or by simple cessation of hostilities.[460]

[Footnote 459: See below, vol. II. § 273.]

[Footnote 460: See below, vol. II. § 263.]