International Law. A Treatise Volume I Part 35

-- 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. .h.i.therto 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 j.a.pan in 1911.

Cessions have in the past often been effected by transactions which are a.n.a.logous 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. x.x.x. (1904), p. 326.]

[Footnote 417: See Martens, N.R.G. 2nd Ser. x.x.xII. (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 c.u.m 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 Nationalite" (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 Nationalite, &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--Merignhac, II. pp. 419-487--Pradier-Fodere, 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, "Traite de l'occupation"

(1873)--Westlake, Chapters, pp. 155-187--Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 103-155--Salomon, "L'occupation des territoires sans maitre" (1889)--Jeze, "etude theorique 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. .h.i.therto 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.