International Law. A Treatise Volume I Part 36

[Footnote 429: See below, -- 236.]

[Footnote 430: See above, -- 209.]

[Sidenote: Object of Occupation.]

-- 221. Only such territory can be the object of occupation as is no State's land, whether entirely uninhabited, as _e.g._ an island, or inhabited by natives whose community is not to be considered as a State.

Even civilised individuals may live and have private property on a territory without any union by them into a State proper which exercises sovereignty over such territory. And natives may live on a territory under a tribal organisation which need not be considered a State proper.

But a part or the whole of the territory of any State, even although such State is entirely outside the Family of Nations, is not a possible object of occupation, and it can only be acquired through cession[431]

or subjugation. On the other hand, a territory which belonged at one time to a State but has been afterwards abandoned, is a possible object for occupation on the part of another State.[432]

[Footnote 431: See above, -- 214.]

[Footnote 432: See below, ---- 228 and 247.]

Although the Open Sea is free and is, therefore, not the object of occupation, the subsoil[433] of the bed of the Open Sea may become the object of occupation through driving mines and piercing tunnels from the coast.[434]

[Footnote 433: See below, ---- 287_c_ and 287_d_.]

[Footnote 434: When, in 1909, Admiral Peary reached the North Pole and hoisted the flag of the United States the question was discussed whether the North Pole could be the object of occupation. The question must, I believe, be answered in the negative since there is no land on the Pole.

See Scott in A.J. III. (1909), pp. 928-941 and Balch in A.J. IV. (1910), pp. 265-275.]

[Sidenote: Occupation how effected.]

-- 222. Theory and practice agree nowadays upon the rule that occupation is effected through taking possession of and establis.h.i.+ng an administration over the territory in the name of and for the acquiring State. Occupation thus effected is _real_ occupation, and, in contradistinction to _fict.i.tious_ occupation, is named _effective_ occupation. Possession and administration are the two essential facts that const.i.tute an effective occupation.

(1) The territory must really be taken into possession by the occupying State. For this purpose it is necessary that the respective State should take the territory under its sway (_corpus_) with the intention to acquire sovereignty over it (_animus_). This can only be done by a settlement on the territory accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty. The necessary formal act is usually performed either by the publication of a proclamation or by the hoisting of a flag. But such formal act by itself const.i.tutes fict.i.tious occupation only, unless there is left on the territory a settlement which is able to keep up the authority of the flag. On the other hand, it is irrelevant whether or not some agreement is made with the natives by which they submit themselves to the sway of the occupying State. Any such agreement is usually neither understood nor appreciated by them, and even if the natives really do understand the meaning, such agreements have a moral value only.[435]

[Footnote 435: If an agreement with natives were legally important, the respective territory would be acquired by cession, and not by occupation. But although it is nowadays quite usual to obtain a cession from a native chief, this is, nevertheless, not cession in the technical sense of the term in International Law; see above, -- 214.]

(2) After having, in the aforementioned way, taken possession of a territory, the possessor must establish some kind of administration thereon which shows that the territory is really governed by the new possessor. If within a reasonable time after the act of taking possession the possessor does not establish some responsible authority which exercises governing functions, there is then no effective occupation, since in fact no sovereignty of a State is exercised over the territory.

[Sidenote: Inchoate t.i.tle of Discovery.]

-- 223. In former times the two conditions of possession and administration which now make the occupation effective were not considered necessary for the acquisition of territory through occupation. In the age of the discoveries, States maintained that the fact of discovering a hitherto unknown territory was sufficient reason for considering it as acquired through occupation by the State in whose service the discoverer made his explorations. And although later on a real taking possession of the territory was considered necessary for its occupation, it was not until the eighteenth century that the writers on the Law of Nations postulated an _effective_ occupation as necessary,[436] and it was not until the nineteenth century that the practice of the States accorded with this postulate. But although nowadays discovery does not const.i.tute acquisition through occupation, it is nevertheless not without importance. It is agreed that discovery gives to the State in whose service it was made an _inchoate_ t.i.tle; it "acts as a temporary bar to occupation by another State"[437] within such a period as is reasonably sufficient for effectively occupying the discovered territory. If such period lapses without any attempt by the discovering State to turn its _inchoate_ t.i.tle into a _real_ t.i.tle of occupation, such inchoate t.i.tle perishes, and any other State can now acquire the territory by means of an effective occupation.

[Footnote 436: See Vattel, I. -- 208.]

[Footnote 437: Thus Hall, -- 32.]

[Sidenote: Notification of Occupation to other Powers.]

-- 224. No rule of the Law of Nations exists which makes notification of occupation to other Powers a necessary condition of its validity. But as regards all future occupations on the _African_ coast the Powers a.s.sembled at the Berlin Congo Conference in 1884-1885 have by article 34 of the General Act[438] of this Conference stipulated that occupation shall be notified to one another, so that such notification is now a condition of the validity of certain occupations in Africa. And there is no doubt that in time this rule will either by custom or by treaty be extended from occupations on the African coast to occupations everywhere else.

[Footnote 438: See Martens, N.R.G. 2nd Ser. X. p. 426.]

[Sidenote: Extent of Occupation.]

-- 225. Since an occupation is valid only if effective, it is obvious that the extent of an occupation ought only to reach over so much territory as is effectively occupied. In practice, however, the interested States have neither in the past nor in the present acted in conformity with such a rule; on the contrary, they have always tried to attribute to their occupation a much wider area. Thus it has been maintained that an effective occupation of the land at the mouth of a river is sufficient to bring under the sovereignty of the occupying State the whole territory through which such river and its tributaries run up to the very crest of the watershed.[439] Again, it has been maintained that, when a coast line has been effectively occupied, the extent of the occupation reaches up to the watershed of all such rivers as empty into the coast line.[440] And it has, thirdly, been a.s.serted that effective occupation of a territory extends the sovereignty of the possessor also over neighbouring territories as far as it is necessary for the integrity, security, and defence of the really occupied land.[441] But all these and other fanciful a.s.sertions have no basis to rest upon. In truth, no general rule can be laid down beyond the above, that occupation reaches as far as it is effective. How far it is effective is a question of the special case. It is obvious that when the agent of a State takes possession of a territory and makes a settlement on a certain spot of it, he intends thereby to acquire a vast area by his occupation. Everything depends, therefore, upon the fact how far around the settlement or settlements the established responsible authority that governs the territory in the name of the possessor succeeds in gradually extending the established sovereignty. The payment of a tribute on the part of tribes settled far away, the fact that flying columns of the military or the police sweep, when necessary, remote spots, and many other facts, can show how far round the settlements the possessor is really able to a.s.sert the established authority. But it will always be difficult to mark exactly in this way the boundary of an effective occupation, since naturally the tendency prevails to extend the sway constantly and gradually over a wider area.

It is, therefore, a well-known fact that disputes concerning the boundaries of occupations can only rarely be decided on the basis of strict law; they must nearly always be compromised, whether by a treaty or by arbitration.[442]

[Footnote 439: Claim of the United States in the Oregon Boundary dispute (1827) with Great Britain. See Twiss, I. ---- 126 and 127, and his "The Oregon Question Examined" (1846); Phillimore, I. -- 250; Hall, -- 34.]

[Footnote 440: Claim of the United States in their dispute with Spain concerning the boundary of Louisiana (1803), approved of by Twiss, I. -- 125.]

[Footnote 441: This is the so-called "right of contiguity," approved of by Twiss, I. ---- 124 and 131.]

[Footnote 442: The Inst.i.tute of International Law, in 1887, at its meeting in Lausanne, adopted a "Projet de declaration internationale relatif aux occupations de territoires," comprising ten articles; see Annuaire, X. p. 201.]

[Sidenote: Protectorate as Precursor of Occupation.]

-- 226. The growing desire to acquire vast territories as colonies on the part of States unable at once to occupy effectively such territories has, in the second half of the nineteenth century, led to the contracting of agreements with the chiefs of natives inhabiting unoccupied territories, by which these chiefs commit themselves to the "protectorate" of States that are members of the Family of Nations.

These so-called protectorates are certainly not protectorates in the technical sense of the term designating the relation that exists between a strong and a weak State through a treaty by which the weak State surrenders itself into the protection of the strong and transfers to the latter the management of its more important international relations.[443] Neither can they be compared with the protectorate of members of the Family of Nations exercised over such non-Christian States as are outside that family,[444] because the respective chiefs of natives are not the heads of States, but heads of tribal communities only. Such agreements, although they are named "Protectorates," are nothing else than steps taken to exclude other Powers from occupying the respective territories. They give, like discovery, an inchoate t.i.tle, and are preparations and precursors of future occupations.

[Footnote 443: See above, ---- 92 and 93.]

[Footnote 444: See above, -- 94.]

[Sidenote: Spheres of influence.]

-- 227. The uncertainty of the extent of an occupation and the tendency of every colonising State to extend its occupation constantly and gradually into the interior, the "Hinterland," of an occupied territory, has led several States which have colonies in Africa to secure for themselves "spheres of influence" by international treaties with other interested Powers. Spheres of influence are therefore the names of such territories as are exclusively reserved for future occupation on the part of a Power which has effectively occupied adjoining territories. In this way disputes are avoided for the future, and the interested Powers can gradually extend their sovereignty over vast territories without coming into conflict with other Powers. Thus, to give some examples, Great Britain has concluded treaties regarding spheres of influence with Portugal[445] in 1890, with Italy[446] in 1891, with Germany[447] in 1886 and 1890, and with France[448] in 1898.[449]

[Footnote 445: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.]

[Footnote 446: See Martens, N.R.G. 2nd Ser. XVIII. p. 175.]

[Footnote 447: See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p.

895.]

[Footnote 448: See Martens, N.R.G. 2nd Ser. XXIX. p. 116.]

[Footnote 449: Protectorates and Spheres of Influence are exhaustively treated in Hall, "Foreign Powers and Jurisdiction of the British Crown,"

---- 92-100; but Hall fails to distinguish between protectorates over Eastern States and protectorates over native tribes.]

[Sidenote: Consequences of Occupation.]

-- 228. As soon as a territory is occupied by a member of the Family of Nations, it comes within the sphere of the Law of Nations, because it const.i.tutes a portion of the territory of a subject of International Law. No other Power can acquire it hereafter through occupation, unless the present possessor has either intentionally withdrawn from it or has been successfully driven away by the natives without making efforts, or without capacity, to re-occupy it.[450] On the other hand, the Power which now exercises sovereignty over the occupied territory is hereafter responsible for all events of international importance on the territory.

Such Power has in especial to keep up a certain order among the native tribes in order to restrain them from acts of violence against neighbouring territories, and has eventually to punish them for such acts.

[Footnote 450: See below, -- 247.]

A question of some importance is how far occupation affects private property of the inhabitants of the occupied territory. As according to the modern conception of State territory the latter is not identical with private property of the State, occupation brings a territory under the sovereignty only of the occupying State, and therefore in no wise touches or affects existing private property of the inhabitants. In the age of the discoveries, occupation was indeed considered to include a t.i.tle to property over the whole occupied land, but nowadays this can no longer be maintained. Being now their sovereign, the occupying State may impose any burdens it likes on its new subjects, and may, therefore, even confiscate their private property; but occupation as a mode of acquiring territory does not of itself touch or affect private property thereon. If the Munic.i.p.al Law of the occupying State does give a t.i.tle to private property over the whole occupied land, such t.i.tle is not based on International Law.

XIV

ACCRETION

Grotius, II. c. 8, ---- 8-16--Hall, -- 37--Lawrence, -- 75--Phillimore, I. ---- 240-241--Twiss, I. ---- 131 and 154--Moore, I.

-- 82--Bluntschli, ---- 294-295--Hartmann, -- 61--Heffter, -- 69--Holtzendorff in Holtzendorff, II. pp. 266-268--Gareis, -- 20--Liszt, -- 10--Ullmann, -- 92--Bonfils, No. 533--Despagnet, No.