International Law. A Treatise Volume I Part 38

[Footnote 465: Both Westlake and Halleck state that the inhabitants _must_ have a free option to stay or leave the country; but there is no rule of International Law which imposes the duty upon a subjugator to grant this option.]

Different from the fact that enemy subjects become through annexation subjects of the subjugator is the question what position they acquire within the subjugating State. This question is one of Munic.i.p.al, and not of International Law. The subjugator can, if he likes, allow them to emigrate and to renounce their newly acquired citizenship, and the Munic.i.p.al Law of the subjugating State can put them in any position it likes, can in especial grant or refuse them the same rights as those which its citizens by birth enjoy.

[Sidenote: Veto of third Powers.]

-- 241. Although subjugation is an original mode of acquiring territory and no third Power has as a rule[466] a right of intervention, the conqueror has not in fact an unlimited possibility of annexation of the territory of the vanquished State. When the balance of power is endangered or when other vital interests are at stake, third Powers can and will intervene, and history records many instances of such interventions. But it must be emphasised that the validity of the t.i.tle of the subjugator does not depend upon recognition on the part of other Powers. And a mere protest of a third Power is of no legal weight either.

[Footnote 466: But this rule has exceptions, as in the case of a State whose independence and integrity have been guaranteed by one or more Powers.]

XVI

PRESCRIPTION

Grotius, II. c. 4--Vattel, I. ---- 140-151--Hall, -- 36--Westlake, I.

pp. 92-94--Lawrence, -- 78--Phillimore, I. ---- 251-261--Twiss, I. -- 129--Taylor, ---- 218-219--Walker, -- 13--Wheaton, -- 164--Moore, I. -- 88--Bluntschli, -- 290--Hartmann, -- 61--Heffter, -- 12--Holtzendorff in Holtzendorff, II. p. 255--Ullmann, -- 92--Bonfils, No.

534--Merignhac, II. p. 412--Despagnet, No. 380--Pradier-Fodere, II.

Nos. 820-829--Rivier, I. pp. 182-184--Nys, II. pp. 34-39--Calvo, I. ---- 264-265--Fiore, II Nos. 850-851, and Code, Nos.

1074-1077--Martens, I. -- 90--G. F. Martens, ---- 70-71--Bynkershoek, "Quaestiones juris publici," IV. c. 12--Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 140-155--Ralston in A.J. IV. (1910), pp. 133-144.

[Sidenote: Conception of Prescription.]

-- 242. Since the existence of a science of the Law of Nations there has always been opposition to prescription as a mode of acquiring territory.

Grotius rejected the usucaption of the Roman Law, yet adopted the same law's _immemorial_ prescription[467] for the Law of Nations. But whereas a good many writers[468] still defend that standpoint, others[469]

reject prescription altogether. Again, others[470] go beyond Grotius and his followers and do not require possession from time _immemorial_, but teach that an undisturbed continuous possession can under certain conditions produce a t.i.tle for the possessor, if the possession has lasted for some length of time.

[Footnote 467: See Grotius, II. c. 4, ---- 1, 7, 9.]

[Footnote 468: See, for instance, Heffter, -- 12; Martens, -- 90.]

[Footnote 469: G. F. Martens, -- 71; Kluber, ---- 6 and 125; Holtzendorff, II. p. 255; Ullmann, -- 92.]

[Footnote 470: Vattel, II. -- 147; Wheaton, -- 165; Phillimore, I. -- 259; Hall, -- 36; Bluntschli, -- 290; Pradier-Fodere, II. No. 825; Bonfils, No. 534, and many others.]

This opinion would indeed seem to be correct, because it recognises theoretically what actually goes on in practice. There is no doubt that in the practice of the members of the Family of Nations a State is considered to be the lawful owner even of those parts of its territory of which originally it took possession wrongfully and unlawfully, provided only the possessor has been in undisturbed possession for such a length of time as is necessary to create the general conviction among the members of the Family of Nations that the present condition of things is in conformity with international order. Such prescription cannot be compared with the usucaption of Roman Law because the latter required _bona-fide_ possession, whereas the Law of Nations recognises prescription both in cases where the State is in _bona-fide_ possession and in cases where it is not. The basis of prescription in International Law is nothing else than general recognition[471] of a fact, however unlawful in its origin, on the part of the members of the Family of Nations. And prescription in International Law may therefore be defined as _the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order_. Thus, prescription in International Law has the same rational basis as prescription in Munic.i.p.al Law--namely, the creation of stability of order.

[Footnote 471: This is pointed out with great lucidity by Heimburger, pp. 151-155; he rejects, however, prescription as a mode of acquiring territory, maintaining that there is a customary rule of International Law in existence according to which recognition can make good originally wrongful possession.]

[Sidenote: Prescription how effected.]

-- 243. From the conception of prescription, as above defined, it becomes apparent that no general rule can be laid down as regards the length of time and other circ.u.mstances which are necessary to create a t.i.tle by prescription. Everything depends upon the merits of the individual case.

As long as other Powers keep up protests and claims, the actual exercise of sovereignty is not undisturbed, nor is there the required general conviction that the present condition of things is in conformity with international order. But after such protests and claims, if any, cease to be repeated, the actual possession ceases to be disturbed, and thus under certain circ.u.mstances matters may gradually ripen into that condition which is in conformity with international order. The question, at what time and under what circ.u.mstances such a condition of things arises, is not one of law but of fact. The question, for instance, whether, although the three part.i.tions of Poland were wrongful and unlawful acts, Prussia, Austria, and Russia have now a good t.i.tle by prescription to hold territories which were formerly Polish must, I doubt not, be answered in the affirmative. For all the members of the Family of Nations have now silently acquiesced in the present condition of things, although as late as 1846 Great Britain and France protested against the annexation of the Republic of Cracow on the part of Austria.

In spite of the fact that the Polish nation has not yet given up its hope of seeing a Polish State re-established on the former Polish territory, the general conviction among the members of the Family of Nations is that the present condition of things is in conformity with international order. When, to give another example, a State which originally held an island _mala fide_ under the t.i.tle by occupation, knowing well that this land had already been occupied by another State, has succeeded in keeping up its possession undisturbed for so long a time that the former possessor has ceased to protest and has silently dropped the claim, the conviction will be prevalent among the members of the Family of Nations that the present condition of things is in conformity with international order. These examples show why a certain number of years[472] cannot, once for all, be fixed to create the t.i.tle by prescription. There are indeed immeasurable and imponderable circ.u.mstances and influences besides the mere run of time[473] at work to create the conviction on the part of the members of the Family of Nations that in the interest of stability of order the present possessor should be considered the rightful owner of a territory. And these circ.u.mstances and influences, which are of a political and historical character, differ so much in the different cases that the length of time necessary for prescription must likewise differ.

[Footnote 472: Vattel (II. -- 151) suggests that the members of the Family of Nations should enter into an agreement stipulating the number of years necessary for prescription, and David Dudley Field proposes the following rule (52) in his Outlines of an International Code: "The uninterrupted possession of territory or other property for fifty years by a nation excludes the claim of every other nation."]

[Footnote 473: Heffter's (-- 12) dictum, "Hundert Jahre Unrecht ist noch kein Tag Recht" is met by the fact that it is not the operation of time alone, but the co-operation of other circ.u.mstances and influences which creates the t.i.tle by prescription.]

XVII

LOSS OF STATE TERRITORY

Hall, -- 34--Phillimore, I. ---- 284-295--Moore, I. ---- 89 and 90--Holtzendorff in Holtzendorff, II. pp. 274-279--Gareis, -- 70--Liszt, -- 10--Ullmann, -- 101--Pradier-Fodere, II. Nos.

850-852--Rivier, I. -- 13--Fiore, II. No. 865--Martens, I. -- 92.

[Sidenote: Six modes of losing State Territory.]

-- 244. To the five modes of acquiring sovereignty over territory correspond five modes of losing it--namely, cession, dereliction, operation of nature, subjugation, prescription. But there is a sixth mode of losing territory--namely, revolt. No special details are necessary with regard to loss of territory through subjugation, prescription, and cession, except that it is of some importance to repeat here that the historical cases of pledging, leasing, and giving territory to another State to administer are in fact, although not in strict law, nothing else than cessions[474] of territory. But operation of nature, revolt, and dereliction must be specially discussed.

[Footnote 474: See above, ---- 171 and 216.]

[Sidenote: Operation of Nature.]

-- 245. Operation of nature as a mode of losing corresponds to accretion as a mode of acquiring territory. Just as through accretion a State may become enlarged, so it may become diminished through the disappearance of land and other operations of nature. And the loss of territory through operation of nature takes place _ipso facto_ by such operation.

Thus, if an island near the sh.o.r.e disappears through volcanic action, the extent of the maritime territorial belt of the respective littoral State is hereafter to be measured from the low-water mark of the sh.o.r.e of the continent, instead of from the sh.o.r.e of the former island. Thus, further, if through a piece of land being detached by the current of a river from one bank and carried over to the other bank, the river alters its course and covers now part of the land on the bank from which such piece became detached, the territory of one of the riparian States may decrease through the boundary line being _ipso facto_ transferred to the present middle or mid-channel of the river.

[Sidenote: Revolt.]

-- 246. Revolt followed by secession is a mode of losing territory to which no mode of acquisition corresponds.[475] Revolt followed by secession has, as history teaches, frequently been a cause of loss of territory. Thus the Netherlands fell away from Spain in 1579, Belgium from the Netherlands in 1830, the United States of America from Great Britain in 1776, Brazil from Portugal in 1822, the former Spanish South American States from Spain in 1810, Greece from Turkey in 1830, Cuba from Spain in 1898, Panama from Colombia in 1903. The question at what time a loss of territory through revolt is consummated cannot be answered once for all, since no hard-and-fast rule can be laid down regarding the time when it can be said that a State broken off from another has established itself safely and permanently. The matter has, as will be remembered, been treated above (-- 74), in connection with recognition. It may well happen that, although such a seceded State is already recognised by a third Power, the mother country does not consider the territory to be lost and succeeds in reconquering it.

[Footnote 475: The possible case where a province revolts, secedes from the mother country, and, after having successfully defended itself against the attempts of the latter to reconquer it, unites itself with the territory of another State, is a case of merger by cession of the whole territory.]

[Sidenote: Dereliction.]

-- 247. Dereliction as a mode of losing corresponds to occupation as a mode of acquiring territory. Dereliction frees a territory from the sovereignty of the present owner State. Dereliction is effected through the owner State's complete abandonment of the territory with the intention of withdrawing from it for ever, thus relinquishing sovereignty over it. Just as occupation[476] requires, first, the actual taking into possession (_corpus_) of territory and, secondly, the intention (_animus_) to acquire sovereignty over it, so dereliction requires, first, actual abandonment of a territory, and, secondly, the intention to give up sovereignty over it. Actual abandonment alone does not involve dereliction as long as it must be presumed that the owner has the will and ability to retake possession of the territory. Thus, for instance, if the rising of natives forces a State to withdraw from a territory, such territory is not derelict as long as the former possessor is able and makes efforts to retake possession. It is only when a territory is really derelict that any State may acquire it through occupation.[477] History knows of several such cases. But very often, when such occupation of derelict territory occurs, the former owner protests and tries to prevent the new occupier from acquiring it.

The cases of the island of Santa Lucia and of the Delagoa Bay may be quoted as ill.u.s.trations:--

[Footnote 476: See above, -- 222.]

[Footnote 477: See above, -- 228.]

(_a_) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by England, but in the following year the English settlers were ma.s.sacred by the natives. No attempt was made by England to retake the island, and France, considering it no man's land, took possession of it in 1650. In 1664 an English force under Lord Willoughby attacked the French, drove them into the mountains, and held the island until 1667, when the English withdrew and the French returned from the mountains. No further step was made by England to retake the island, but she nevertheless a.s.serted for many years to come that she had not abandoned it _sine spe redeundi_, and that, therefore, France in 1650 had no right to consider it no man's land. Finally, however, England resigned her claims by the Peace Treaty of Paris of 1763.[478]

[Footnote 478: See Hall, -- 34, and Moore, I. -- 89.]

(_b_) In 1823 England occupied, in consequence of a so-called cession from native chiefs, a piece of territory at Delagoa Bay, which Portugal claimed as part of the territory owned by her at the bay, maintaining that the chiefs concerned were rebels. The dispute was not settled until 1875, when the case was submitted to the arbitration of the President of France. The award was given in favour of Portugal, since the interruption of the Portuguese occupation in 1823 was not to be considered as abandonment of a territory over which Portugal had exercised sovereignty for nearly three hundred years.[479]

[Footnote 479: See Hall, -- 34. The text of the award is printed in Moore, "Arbitrations," V. p. 4984.]

CHAPTER II

THE OPEN SEA

I