Chapter 34
(4) Economic, are those servitudes which are acquired for the purpose of commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign territorial waters, to build a railway on or lay a telegraph cable through foreign territory, and the like.
[Sidenote: Validity of State Servitudes.]
-- 207. Since State servitudes, in contradistinction to personal rights (rights _in personam_), are rights inherent to the object with which they are connected (rights _in rem_), they remain valid and may be exercised however the owners.h.i.+p of the territory to which they apply may change. Therefore, if, after the creation of a State servitude, the part of the territory affected comes by subjugation or cession under the territorial supremacy of another State, such servitude remains in force.
Thus, when the Alsatian town of Huningen became in 1871, together with the whole of Alsace, German territory, the State servitude created by the Treaty of Paris, 1815, that Huningen should, in the interest of the Swiss canton of Basle, never be fortified, was not extinguished.[391]
Thus, further, when in 1860 the former Sardinian provinces of Chablais and Faucigny became French, the State servitude created by article 92 of the Act of the Vienna Congress, 1815, that Switzerland should have temporarily during war the right to locate troops in these provinces, was not extinguished.[392]
[Footnote 391: Details in Clauss, pp. 15-17.]
[Footnote 392: Details in Clauss, pp. 8-15.]
It is a moot point whether military State servitudes can be exercised in time of war by a belligerent if the State with whose territory they are connected remains neutral. Must such State, for the purpose of upholding its neutrality, prevent the belligerent from exercising the respective servitude--for instance, the right of pa.s.sage of troops?[393]
[Footnote 393: This question became practical when in 1900, during the South African war, Great Britain claimed, and Portugal was ready to grant, pa.s.sage of troops through Portuguese territory in South Africa.
See below, vol. II. ---- 306 and 323; Clauss, pp. 212-217; and Dumas in R.G. XVI. (1909), pp. 289-316.]
[Sidenote: Extinction of State Servitudes.]
-- 208. State servitudes are extinguished by agreement between the States concerned, or by express or tacit[394] renunciation on the part of the State in whose interest they were created. They are not, according to the correct opinion, extinguished by reason of the territory involved coming under the territorial supremacy of another State. But it is difficult to understand why, although State servitudes are called into existence through treaties, it is sometimes maintained that the clause _rebus sic stantibus_[395] cannot be applied in case a vital change of circ.u.mstances makes the exercise of a State servitude unbearable. It is a matter of course that in such case the restricted State must previously try to come to terms with the State which is the subject of the servitude. But if an agreement cannot be arrived at on account of the unreasonableness of the other party, the clause _rebus sic stantibus_ may well be resorted to.[396] The fact that the practice of the States does not provide any example of an appeal to this clause for the purpose of doing away with a State servitude proves only that such appeal has..h.i.therto been unnecessary.
[Footnote 394: See Bluntschli, -- 359 b. The opposition of Clauss (p.
219) and others to this sound statement of Bluntschli's is not justified.]
[Footnote 395: See below, -- 539.]
[Footnote 396: See Bluntschli, -- 359 d, and Pradier-Fodere, II. No. 845.
Clauss (p. 222) and others oppose this sound statement likewise.]
XI
MODES OF ACQUIRING STATE TERRITORY
Vattel, I. ---- 203-207--Hall, -- 31--Westlake, I. pp.
84-116--Lawrence, ---- 74-78--Phillimore, I. ---- 222-225--Twiss, I.
---- 113-139--Halleck, I. p. 154--Taylor, ---- 217-228--Wheaton, ---- 161-163--Bluntschli, ---- 278-295--Hartmann, -- 61--Heffter, -- 69--Holtzendorff in Holtzendorff, II. pp. 252-255--Gareis, -- 76--Liszt, -- 10--Ullmann, -- 92--Bonfils, No. 532--Despagnet, No.
378--Pradier-Fodere, II. Nos. 781-787--Merignhac, II. pp.
410-412--Rivier, I. -- 12--Nys, II. pp. 1-3--Calvo, I. -- 263--Fiore, I. Nos. 838-840--Martens, I. -- 90--Heimburger, "Der Erwerb der Gebietshoheit" (1888).
[Sidenote: Who can acquire State Territory?]
-- 209. Since States only and exclusively are subjects of the Law of Nations, it is obvious that, as far as the Law of Nations is concerned, States[397] solely can acquire State territory. But the acquisition of territory by an existing State and member of the Family of Nations must not be confounded, first, with the foundation of a new State, and, secondly, with the acquisition of such territory and sovereignty over it by private individuals or corporations as lies outside the dominion of the Law of Nations.
[Footnote 397: There is no doubt that no full-Sovereign State is, as a rule, prevented by the Law of Nations from acquiring more territory than it already owns, unless some treaty arrangement precludes it from so doing. As
(1) Whenever a mult.i.tude of individuals, living on or entering into such a part of the surface of the globe as does not belong to the territory of any member of the Family of Nations, const.i.tute themselves as a State and nation on that part of the globe, a new State comes into existence.
This State is not, by reason of its birth, a member of the Family of Nations. The formation of a new State is, as will be remembered from former statements,[398] a matter of fact, and not of law. It is through recognition, which is a matter of law, that such new State becomes a member of the Family of Nations and a subject of International Law. As soon as recognition is given, the new State's territory is recognised as the territory of a subject of International Law, and it matters not how this territory was acquired before the recognition.
[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.]