tions.1 In the interest of frontier regulations, but also for other purposes, exchanges of territory frequently take place. Sale of territory is quite usual; as late as 1867 Russia sold her territory in America to the United States for 7,200,000 dollars; in 1899 Spain sold the Caroline Islands to Germany for 25,000,000 pesetas; and in 1916 Denmark sold the islands of St. Thomas, St. John and St. Croix in the West Indies to the United States for 25,000,000 dollars. Pledge and lease are also made use of. Thus, the then Republic of Genoa pledged Corsica to France in 1768, Sweden pledged Wismar to Mecklenburg in 1803; China 2 leased in 1898 Kiaochau to Germany,3 Wei-Hai-Wei and the land opposite the island of HongKong to Great Britain, and Port Arthur to Russia.4 Whatever may be the motive and the purpose of the transaction, and whatever may be the compensation, if any, for the cession, the ceded territory is transferred to the new sovereign with all the international obligations 5 locally connected with the territory (Res transit cum suo onere, and Nemo plus juris transferre potest, quam ipse habet). of the § 217. The treaty of cession must be followed by Tradition actual tradition of the territory to the new owner-State, Ceded unless such territory is already occupied by the new Territory. owner, as in the case where the cession is the outcome. of war and the ceded territory has been during such 1 Phillimore, i. §§ 274-276, enumerates many examples of such cession. The question whether the monarch of a State under absolute government could nowadays by a testamentary disposition cede territory to another State must, I believe, be answered in the affirmative. 2 See above, § 171 (3). The leases of Kiaochau and Port Arthur have been transferred to Japan, the first as a result of the World War, and the second as the result of the Russo-Japanese War. Cession may also take place under the disguise of an agreement according to which territory comes under the 'admin- * See Martens, N. R. G., 2nd Ser. See Martens, N.R.G., 2nd Ser. xxxii. pp. 89 and 90. 5 How far a succession of States takes place in the case of cession of territory has been discussed above, § 84. This was indirectly recognised by Sir W. Scott in The Fama, (1804) 5 C. Rob. 106. Veto of war in the military occupation of the State to which it is now ceded. But the validity of the cession does not depend upon tradition,1 the cession being completed by ratification of the treaty of cession, and the capability of the new owner to cede the acquired territory to a third State at once without taking actual possession of it.2 But of course the new owner-State cannot exercise its territorial supremacy thereon until it has taken physical possession of the ceded territory. § 218. As a rule, no third Power has the right of veto Powers. with regard to a cession of territory. Exceptionally, however, such right may exist. It may be that a third Power has by a previous treaty acquired a right of preemption concerning the ceded territory, or that some early treaty has created another obstacle to the cession, as, for instance, in the case of permanently neutralised parts of a not permanently neutralised State.3 And the Powers have certainly the right of veto in case a permanently neutralised State desires to increase its territory by acquiring land through cession from another State. But even where no right of veto exists, a third Power might intervene for political reasons. For there is no duty on the part of third States to acquiesce in such cessions of territory as endanger the balance of power or are otherwise of vital importance. And a strong State will practically always interfere in case a cession of such a kind as menaces its vital interests is agreed upon. Thus, when in 1867 the reigning King of Holland proposed to sell Luxemburg to France, the North German Confederation intervened, and the cession was not effected, but Luxemburg became permanently neutralised. 1 This is controversial. Many writers-see, for instance, Rivier, i. p. 203-oppose the opinion presented in the text. 2 Thus France, to which Austria ceded in 1859 Lombardy, ceded; this territory on her part to Sardinia without previously having actually taken possession of it. 3 See above, § 215. 4 See above, §§ 209 n. 3 and 215. 5 See above, § 136. and § 219. As the object of cession is sovereignty over Plebiscite the ceded territory, all such individuals domiciled Option. thereon as are subjects of the ceding State become ipso facto by the cession subjects 1 of the acquiring State. The hardship involved in the fact that in all cases of cession the inhabitants of the territory who remain lose their old citizenship and are handed over to a new Sovereign whether they like it or not, has created a movement in favour of the claim that no cession shall be valid until the inhabitants have by a plebiscite 2 given their consent to the cession. And several treaties 3 of cession concluded during the nineteenth century stipulated that the cession should only be valid provided the inhabitants consented to it through a plebiscite. But it is doubtful whether the Law of Nations will ever make it a condition of every cession that it must be ratified by a plebiscite. The necessities of international policy may now and then allow or even demand such a plebiscite, but in most cases they will not allow it.5 The hardship of the inhabitants being handed over to a new sovereign against their will can be lessened by a stipulation in the treaty of cession binding the acquiring State to give the inhabitants of the ceded territory the option of retaining their old citizenship on making an express declaration. Many treaties of cession concluded during the second half of the nineteenth century contained this stipulation. But it must be emphasised that, failing a stipulation expressly forbidding it, the acquiring State may expel those in See Keith, The Theory of State Succession, etc. (1907), pp. 42-45; Cogordan, La Nationalité (1890), pp. 317-398; Moore, iii. § 379. 2 See Stoerk, Option und Plebiscite (1879); Rivier, i. p. 204; Freudenthal, Die Volksabstimmung bei Gebietsabtretungen und Eroberungen (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, § 97. 3 See Rivier, i. p. 210, where all these treaties are enumerated. 4 Although Grotius (ii. c. vi. § 4) taught this to be necessary. 5 Thus in the Treaties of Peace by which the settlement after the World War is being effected some cessions are made to depend largely upon a plebiscite and others are not. habitants who have made use of the option and retained their old citizenship, since otherwise the whole population of the ceded territory might actually consist of aliens and endanger the safety of the acquiring State. The option to emigrate within a certain period, which is frequently stipulated in favour of the inhabitants of ceded territory, is another means of averting the charge that inhabitants are handed over to a new sovereign against their will. Thus Article 2 of the Peace Treaty of Frankfort, 1871, which ended the Franco-German War, stipulated that the French inhabitants of the ceded territory of Alsace and Lorraine should up to October 1, 1872, enjoy the privilege of transferring their domicile from the ceded territory to French soil.1 Similar options have been accorded in the Treaties of Peace following the conclusion of the World War to the inhabitants of territories ceded under them. The terms of the option vary in each particular case; but the general principle applied has been that persons habitually resident in ceded territory acquire ipso facto the nationality of the State to which the territory has been transferred, and lose the nationality of the ceding State. Nevertheless such persons, if over eighteen years old, may opt for their old nationality, and if they exercise this option, their choice covers a wife and any children under eighteen years of age. They must, however, in that case remove to the territory of their old State.2 1 The important question whether subjects of the ceding States who are born on the ceded territory but have their domicile abroad become ipso facto by the cession subjects of the acquiring State, must, I think, be answered in the negative, unless special treaty arrangements stipulate the contrary. Therefore, Frenchmen born in Alsace but domiciled at the time of the cession in Great Britain, would not have lost their French citizenship through the cession to Germany but for Article 1, part 2, of the additional treaty of Dec. 11, 1871, to the Peace Treaty of Frankfort. (Martens, N. R. G., xx. p. 847.) See Bonfils, No. 427, and Cogordan, La Nationalité, etc. (1890), p. 361. 2 See for example Treaty of Peace with Germany, Articles 36 and 37, with regard to German territory ceded to Belgium. The general principle is there, and indeed in most cases, applied subject to an exception. XIV OCCUPATION Hall, $ 32-34-Westlake, i. pp. 98-113, 121-135-Lawrence, § 74-Phillimore, i. §§ 226-250-Twiss, i. §§ 118-126-Hershey, Nos. 179-187Taylor, §§ 221-224-Walker, § 9-Wharton, i. § 2-Moore, i. §§ 80-81Wheaton, §§ 165-174-Bluntschli, §§ 278-283-Hartmann, § 61-Heffter, § 70-Holtzendorff in Holtzendorff, ii. pp. 255-266-Gareis, § 70-Liszt, § 10-Ullmann, § 93-96-Bonfils, Nos. 536-563-Despagnet, Nos. 392-399 -Mérignhac, ii. pp. 419-487-Pradier-Fodéré, ii. Nos. 784-802-Rivier, i. pp. 188-197-Nys, ii. pp. 58-122-Calvo, i. §§ 266-282-Fiore, ii. Nos. 841-849, and Code, Nos. 1059-1072-Martens, i. § 90-Tartarin, Traité de l'Occupation (1873) - Westlake, Chapters, pp. 155-187 Heimburger, Der Erwerb der Gebietshoheit (1888), pp. 103-155-Salomon, L'Occupation des Territoires sans Maître (1889)—Jèze, Étude théorique et pratique sur l'Occupation, etc. (1896)-Macdonell in the Journal of the Society of Comparative Legislation, New Ser. i. (1899), pp. 276-286Waultrin in R.G., xv. (1908), pp. 78, 185, 401. tion of § 220. Occupation is the act of appropriation by a ConcepState through which it intentionally acquires sove- Occupa reignty over such territory as is at the time not under tion. the sovereignty of another State. Occupation as a mode of acquisition differs from subjugation1 chiefly in that the subjugated territory previously belonged to another State. Again, occupation differs from cession in that, through cession, the acquiring State receives sovereignty over the territory concerned from the former ownerState. Cession, therefore, is a derivative mode of acquisition, whereas occupation is an original mode. And it must be emphasised that occupation can only take place by and for a State; 2 it must be a State act, that is, it must be performed in the service of a State, or it must be acknowledged by a State after its performance. Occupa § 221. Only such territory can be the object of occu- Object of pation as is no State's land, whether entirely uninhabited, tion. as e.g. an island, or inhabited by natives whose community is not to be considered as a State. Natives may See above, § 209. 1 See below, § 236. |