Volume I Part 34 (2/2)

[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 a.n.a.logy 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 circ.u.mstances 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 t.i.tle of owners.h.i.+p. 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 a.s.sert 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 t.i.tle they give is derived from the t.i.tle 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--Merignhac, II. pp. 487-497--Despagnet, Nos.

381-391--Pradier-Fodere, 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 Const.i.tutional 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 Munic.i.p.al Law can neither abolish existing nor create new rules of International Law.[406] But if such munic.i.p.al rules contain const.i.tutional 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.]

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