International Law. A Treatise Volume I Part 37

387--Pradier-Fodere, 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, d.y.k.es, 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 sh.o.r.e.

[Footnote 451: See above, -- 127.]

[Sidenote: Alluvions.]

-- 232. Alluvion is the name for an accession of land washed up on the sea-sh.o.r.e 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 sh.o.r.e, the extent of the territorial maritime belt is now to be measured from the extended sh.o.r.e. 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 ?, 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 sh.o.r.e of the Delta.

[Sidenote: New-born Islands.]

-- 234. The same and other natural processes which create alluvions on the sh.o.r.e 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 sh.o.r.e of the new-born island.

An ill.u.s.trative 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 t.i.tle and is a mode of acquiring territory.[454] It is, however, quite usual to speak of conquest as a t.i.tle, 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 a.s.sert, 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, pa.s.sed 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 Na.s.sau, the Kingdom of Hanover, the Electorate of Hesse-Ca.s.sel, 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.]

It must, however, be emphasised that such a mode of acquiring a part of enemy territory is totally different from forcibly taking possession of a part thereof during the continuance of war. Such a conquest, although the conqueror may intend to keep the conquered territory and therefore annex it, is not a t.i.tle as long as the war has not terminated either actually through simple cessation of hostilities or through a Treaty of Peace. Therefore, the practice, which sometimes prevails, of annexing a conquered part of enemy territory during war cannot be approved.

Concerning subjugation either of the whole or of a part of enemy territory, it must be a.s.serted that annexation gives a t.i.tle only after a _firmly established_ conquest. So long as war continues, conquest is not firmly established.[461]

[Footnote 461: See below, vol. II. -- 60, concerning guerilla war after the termination of real war. Many writers, however, deny that a conquest is firmly established as long as guerilla war is going on.]

[Sidenote: Consequences of Subjugation.]

-- 240. Although subjugation is an original mode of acquisition, since the sovereignty of the new acquirer is not derived from that of the former owner State, the new owner State is nevertheless the successor of the former owner State as regards many points which have been discussed above (-- 82). It must be specially mentioned that, as far as the Law of Nations is concerned, the subjugator does not acquire the private property of the inhabitants of the annexed territory. Being now their Sovereign, the subjugating State may indeed impose any burdens it pleases on its new subjects, it may even confiscate their private property, since a Sovereign State can do what it likes with its subjects, but subjugation itself does not by International Law touch or affect private property.

As regards the national status of the subjects of the subjugated State, doctrine and practice agree that such enemy subjects as are domiciled on the annexed territory and remain there after annexation become _ipso facto_ by the subjugation[462] subjects of the subjugator. But the national status of such enemy subjects as are domiciled abroad and do not return, and further of such as leave the country before the annexation or immediately afterwards, is matter of dispute. Some writers maintain that these individuals do in spite of their absence become subjects of the subjugator, others emphatically deny it. Whereas the practice of the United States of America seems to be in conformity with the latter opinion,[463] the practice of Prussia in 1866 was in conformity with the former. Thus in the case of Count Platen-Hallermund, a Cabinet Minister of King George V. of Hanover, who left Hanover with his King before the annexation in 1866 and was in 1868 prosecuted for high treason before the Supreme Prussian Court at Berlin, this Court decided that the accused had become a Prussian subject through the annexation of Hanover.[464] I believe that a distinction must be made between those individuals who leave the country _before_ and those who leave it _after_ annexation. The former are not under the sway of the subjugator at the time of annexation, and, since the personal supremacy of their home State terminates with the latter's extinction through annexation, they would seem to be outside the sovereignty of the subjugator. But those individuals who leave the country _after_ annexation leave it at a time when they have become subjects of the new Sovereign, and they therefore remain such subjects even after they have left the country, for there is no rule of the Law of Nations in existence which obliges a subjugator to grant the privilege of emigration[465] to the inhabitants of the conquered territory.

[Footnote 462: See Hall _v._ Campbell (1774), 1 Cowper 1208, and United States _v._ Repentigny (1866), 5 Wallace, 211. The case is similar to that of cession: see above, -- 219; Keith, "The Theory of State Succession" (1907), pp. 45 and 48; Moore, III. -- 379.]

[Footnote 463: See Halleck, II. p. 476.]

[Footnote 464: See Halleck, II. p. 476, on the one hand, and, on the other, Rivier, II. p. 436. Valuable opinions of Zachariae and Neumann, who deny that Count Platen was a Prussian subject, are printed in the "Deutsche Strafrechts-Zeitung" (1868), pp. 304-320.]