Volume I Part 14 (1/2)

-- 82. When a State merges voluntarily into another State--as, for instance, Korea in 1910 did into j.a.pan--or when a State is subjugated by another State, the latter remains one and the same International Person and the former becomes totally extinct as an International Person. No succession takes place, therefore, with regard to rights and duties of the extinct State arising either from the character of the latter as an International Person or from its purely political treaties. Thus treaties of alliance or of arbitration or of neutrality or of any other political nature fall to the ground with the extinction of the State which concluded them. They are personal treaties, and they naturally, legally, and necessarily presuppose the existence of the contracting State. But it is controversial whether treaties of commerce, extradition, and the like, of the extinct State remain valid and therefore a succession takes place. The majority of writers correctly, I think, answer the question in the negative, because such treaties, although they are non-political in a sense, possess some prominent political traits.[112]

[Footnote 112: On the whole question concerning the extinction of treaties in consequence of the absorption of a State by another, see Moore, V. -- 773, and below, -- 548. When, in 1910, Korea merged into j.a.pan, the latter published a Declaration--see Martens, N.R.G. 3rd Ser.

IV. p. 26--containing the following articles with regard to the treaty obligations of the extinct State of Korea:--

1. Treaties. .h.i.therto concluded by Korea with foreign Powers ceasing to be operative, j.a.pan's existing treaties will, so far as practicable, be applied to Korea. Foreigners resident in Korea will, so far as conditions permit, enjoy the same rights and immunities as in j.a.pan proper, and the protection of their legally acquired rights subject in all cases to the jurisdiction of j.a.pan. The Imperial Government of j.a.pan is ready to consent that the jurisdiction in respect of the cases actually pending in any foreign Consular Court in Korea at the time the Treaty of Annexation takes effect shall remain in such Court until final decision.

2. Independently of any conventional engagements formerly existing on the subject, the Imperial Government of j.a.pan will for a period of ten years levy upon goods imported into Korea from foreign countries or exported from Korea to foreign countries and upon foreign vessels entering any of the open ports of Korea the same import or export duties and the same tonnage dues as under the existing schedules. The same import or export duties and tonnage dues as those to be levied upon the aforesaid goods and vessels will also for a period of ten years be applied in respect of goods imported into Korea from j.a.pan or exported from Korea to j.a.pan and j.a.panese vessels entering any of the open ports of Korea.

3. The Imperial Government of j.a.pan will also permit for a period of ten years vessels under flags of the Powers having treaties with j.a.pan to engage in the coasting trade between the open ports of Korea and between those ports and any open port of j.a.pan.

4. The existing open ports of Korea, with the exemption of Masampo, will be continued as open ports, and in addition s.h.i.+wiju will be newly opened so that vessels, foreign as well as j.a.panese, will there be admitted and goods may be imported into and exported from these ports.]

A real succession takes place, however, first, with regard to such international rights and duties of the extinct State as are locally connected with its land, rivers, main roads, railways, and the like.

According to the principle _res transit c.u.m suo onere_, treaties of the extinct State concerning boundary lines, repairing of main roads, navigation on rivers, and the like, remain valid, and all rights and duties arising from such treaties of the extinct State devolve on the absorbing State.

A real succession, secondly, takes place with regard to the fiscal property and the fiscal funds of the extinct State. They both accrue to the absorbing State _ipso facto_ by the absorption of the extinct State.[113] But the debts[114] of the extinct State must, on the other hand, also be taken over by the absorbing State.[115] The private creditor of an extinct State certainly acquires no right[116] by International Law against the absorbing State, since the Law of Nations is a law between States only and exclusively. But if he is a foreigner, the right of protection due to his home State enables the latter to exercise pressure upon the absorbing State for the purpose of making it fulfil its international duty to take over the debts of the extinct State. Some jurists[117] go so far as to maintain that the succeeding State must take over the debts of the extinct State, even when they are higher than the value of the accrued fiscal property and fiscal funds.

But I doubt whether in such cases the practice of the States would follow that opinion. On the other hand, a State which has subjugated another would be compelled[118] to take over even such obligations as have been incurred by the annexed State for the immediate purpose of the war which led to its subjugation.[119]

[Footnote 113: This was recognised by the High Court of Justice in 1866 in the case of the United States _v._ Prioleau. See Scott, ”Cases on International Law” (1902), p. 85.]

[Footnote 114: See Moore, I. -- 97, and Appleton, ”Des effets des annexions de territoires sur les dettes, &c.” (1895).]

[Footnote 115: This is almost generally recognised by writers on International Law and the practice of the States. (See Huber, op. cit.

pp. 156 and 282, note 449.) The Report of the Transvaal Concessions Commission (see British State Papers, South Africa, 1901, Cd. 623), although it declares (p. 7) that ”it is clear that a State which has annexed another is not legally bound by any contracts made by the State which has ceased to exist,” nevertheless agrees that ”the modern usage of nations has tended in the acknowledgment of such contracts.” It may, however, safely be maintained that not a usage, but a real rule of International Law, based on custom, is in existence with regard to this point. (See Hall, -- 29, and Westlake in _The Law Quarterly Review_, XVII. (1901), pp. 392-401, x.x.xI. (1905), p. 335, and now Westlake, I.

pp. 74-82.)]

[Footnote 116: This is the real portent of the judgment in the case of Cook _v._ Sprigg, L.R. (1899), A.C. 572, and in the case of the West Rand Central Gold Mining Co. _v._ The King (1905), 2 K.B. 391. In so far as the latter judgment denies the existence of a rule of International Law that compels a subjugator to pay the debts of the subjugated State, its arguments are in no wise decisive. An International Court would recognise such a rule.]

[Footnote 117: See Martens, I. -- 67; Heffter, -- 25; Huber, op. cit. p.

158.]

[Footnote 118: See the Report of the Transvaal Concession Commission, p.

9, which maintains the contrary. Westlake (I. p. 78) adopts the reasoning of this report, but his arguments are not decisive. The lending of money to a belligerent under ordinary mercantile conditions--see Barclay in _The Law Quarterly Review_, XXI. (1905), p.

307--is not prohibited by International Law, although the carriage of such funds in cash on neutral vessels to the enemy falls under the category of carriage of contraband, and can be punished by the belligerents. (See below, Vol. II. -- 352.)]

[Footnote 119: The question how far concessions granted by a subjugated State to a private individual or to a company must be upheld by the subjugating State, is difficult to answer in its generality. The merits of each case would seem to have to be taken into consideration. See Westlake, I. p. 82; Moore, I. -- 98; Gidel, ”Des effets de l'annexion sur les concessions” (1904).]

The case of a Federal State arising--like the German Empire in 1871--above a number of several hitherto full Sovereign States also presents, with regard to many points, a case of State succession.[120]

However, no hard-and-fast rules can be laid down concerning it, since everything depends upon the question whether the Federal State is one which--like all those of America--totally absorbs all international relations of the member-States, or whether it absorbs--like the German Empire and Switzerland--these relations to a greater extent only.[121]

[Footnote 120: See Huber, op. cit. pp. 163-169, and Keith, op. cit. pp.

92-98.]

[Footnote 121: See below, -- 89.]

[Sidenote: Succession in consequence of Dismemberment.]