example of the breaking up of a State into different States is the division of the Swiss canton of Basel into Basel-Stadt and Basel-Land in 1833. And an example of the breaking up of a State into parts which are annexed by surrounding States, is the absorption of the old State of Poland by Russia, Austria, and Prussia in 1795.

IV

SUCCESSION OF INTERNATIONAL PERSONS 1

Grotius, ii. c. 9 and 10-Pufendorf, viii. c. 12—Hall, §§ 27-29—Phillimore, i. § 137-Lawrence, § 49-Halleck, i. pp. 96-99-Taylor, §§ 164-168Westlake, i. pp. 68-83, and Papers, pp. 475-497-Wharton, i. § 5Moore, i. §§ 92-99- Hershey, Nos. 127-130- Wheaton, §§ 28-32Bluntschli, §§ 47-59-Hartmann, § 12-Heffter, § 25-Holtzendorff in Holtzendorff, ii. pp. 33-43-Liszt, § 23-Ullmann, § 32-Bonfils, Nos. 216-233-Despagnet, Nos. 89-102-Pradier-Fodéré, i. Nos. 156-163Nys, i. pp. 432-435-Rivier, i. § 3, pp. 69-75-Calvo, i. §§ 99-104Fiore, i. Nos. 349-366-Martens, i. § 67-Appleton, Des Effets des Annexions de Territoires sur les Dettes de l'État démembré ou annexé (1895) -Huber, Die Staatensuccession (1898)-Keith, The Theory of State Succession, with special reference to English and Colonial Law (1907)— Cavaglieri, La Dottrina della Successione di Stato a Stato, etc. (1910)— Focherini, Le Successioni degli Stati, etc. (1910)—Schoenborn, Staatensukzessionen (1913) — Michel, Die Einverleibung Frankforts in den preussischen Staat als Fall einer Staatensukzession (1913)-Schmidt, Der Uebergang der Staatsschulden bei Gebietsabtretungen (1913)– Richards in the Law Magazine and Review, xxviii. (1903), pp. 129-141 -Keith in Z. V., iii. (1909), pp. 618-648-Hershey in A.J., v. (1911), pp. 285-297-Borchard, § 83-Sayre in A.J., xii. (1918), pp. 475-497, and 705-743-Phillipson, Termination of War and Treaties of Peace (1916), pp. 34-51, and 290-334.

§ 80. Although there is no unanimity among the writers on International Law with regard to the socalled succession of International Persons, nevertheless

1 The following text treats only of the broad outlines of the subject, as the practice of the States has hardly settled more than general principles. Details must be studied in Huber, Die Staatensuccession (1898); Keith, The

Theory of State Succession, etc. (1907) and Schoenborn, Staatensukzessionen Keith's analysis of cases in Z. V. iii. (1909), pp. 618-648, is likewise very important.

the following common doctrine can be stated to Common exist.

Doctrine regarding

sion of

national

A succession of International Persons occurs when Succesone or more International Persons take the place of Interanother International Person, in consequence of certain Persons. changes in the latter's condition.

Universal succession takes place when one International Person is absorbed by another, either through subjugation or through voluntary merger. And universal succession further takes place when a State breaks up into parts, which either become separate International Persons of their own or are annexed by surrounding International Persons.

Partial succession takes place, first, when a part of the territory of an International Person breaks off in a revolt and by winning its independence becomes itself an International Person; secondly, when one International Person acquires a part of the territory of another through cession; thirdly, when a hitherto full sovereign State loses part of its independence through entering into a Federal State, or coming under suzerainty or under a protectorate, or when a hitherto not-full sovereign State becomes full sovereign; fourthly, when an International Person becomes a member of a Real Union or vice versa.

Nobody ever maintained that on the successor devolve all the rights and duties of his predecessors. But after stating that a succession takes place, writers try to deduce the consequences and to make out what rights and duties do, and what do not, devolve.

Several writers,1 however, contest the common doctrine, and maintain that a succession of International Persons never takes place. Their argument is that the rights and duties of an International Person disappear

1 For instance, Gareis, pp. 66-70, who discusses the matter with great

VOL. I.

K

clearness; Cavaglieri, op.
Focherini, op. cit.

cit. :

How far Succession

takes

place.

with the extinguished Person, or become modified, according to the modifications an International Person undergoes through losing part of its sovereignty.

§ 81. If the real facts of life are taken into consideration, the common doctrine cannot be upheld. To say actually that succession takes place in such and such cases and to make out afterwards what rights and duties devolve, shows a wrong method of dealing with the problem. It is certain that no general succession takes place according to the Law of Nations. With the extinction of an International Person disappear its rights and duties as a person. But it is equally wrong to maintain that no succession whatever occurs. For nobody doubts that certain rights and duties actually and really devolve upon an International Person from its predecessor. And since this devolution takes place through the very fact of one International Person following another in the possession of State territory, there is no doubt that, as far as these devolving rights and duties are concerned, a succession of one International Person to the rights and duties of another really does take place. But no general rule can be laid down concerning all the cases in which a succession takes place. These cases must be discussed singly.1

Succes

sion in conse

§ 82. When a State merges voluntarily into another State-as, for instance, Korea in 1910 did into Japanquence of or when a State is subjugated by another State, the Absorp

tion.

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.

It is impossible in a general treatise on International Law to treat all the cases with all details. Readers must be referred to the

above-named works of Huber, Keith, and Schoenborn; but great care is necessary, since these writers are not at all unbiassed.

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, made by the extinct State remain valid, so that 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.1

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 cum 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.2 But the

1 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 Japan, the latter published a declaration-see Martens, N. R. G., 3rd Ser. iv. p. 26 -containing the following article with regard to the treaty obligations of the extinct State of Korea :

1. Treaties hitherto concluded by Korea with foreign Powers ceasing to be operative, Japan'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 Japan proper, and the protection of their legally acquired rights subject in all cases to the jurisdiction of Japan. The Imperial Government of Japan 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 This was recognised by the High Court of Justice in 1866 in the case of The United States v. Prioleau, 35 L.J. Ch. 7.

debts of the extinct State must, on the other hand, also be taken over by the absorbing State.2 The private creditor of an extinct State certainly acquires no right 3 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 possessed by 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 4 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 5 to take over even

1 See Moore, i. § 97, and Appleton, Des Effets des Annexions de Territoires sur les Dettes, etc. (1895).

2 This is almost generally recog nised 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 Parl. 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, xxvii. (1901), pp. 392-401, xxi. (1905), pp. 335-339, and Westlake, i. pp. 74-83.)

This is the real portent of the judgment in the case of Cook v. Sprigg, [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 argu ments are in no wise decisive. An international court would recognise such a rule.

4 See Martens, i. § 67; Heffter, § 25; Huber, op. cit., p. 158.

5 See the Report of the Transvaal Concessions Commission, p. 9, which maintains the contrary. Westlake (i. p. 81) 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.)