es n to run along the middle of the old Thalweg in the abandoned bed.1 But often this cannot be ascertained, qu and in such cases 2 the boundary line is considered to run through the middle of the abandoned bed, although the territory of one riparian State may become thereby enlarged, and that of the other diminished. Concep tion of XVI SUBJUGATION Vattel, iii. §§ 199-203-Hall, §§ 204-205-Lawrence, § 77-Halleck, ii. pp. 501-534-Taylor, § 220-Walker, § 11-Hershey, No. 171-Wheaton, § 165—Moore, i. § 87—Bluntschli, §§ 287-289, 701-702—Heffter, § 178— Liszt, § 10-Ullmann, §§ 92 and 97-Bonfils, No. 535–Despagnet, Nos. 387-390-Rivier, i. pp. 181-182, ii. 436-441-Nys, ii. pp. 44-57-Calvo, v. §§ 3117, 3118-Fiore, ii. No. 863, iii. No. 1693, and Code, Nos. 10831086-Martens, i. § 91-Holtzendorff, Eroberung und Eroberungsrecht (1871)-Heimburger, Der Erwerb der Gebietshoheit (1888), pp. 121-132— Westlake in the Law Quarterly Review, xvii. (1901), p. 392, now reprinted in Westlake, Papers, pp. 475-489-Phillipson, Termination of War and Treaties of Peace (1916), pp. 9-51. § 236. Conquest is the taking possession of enemy Conquest territory through military force in time of war. Conand of quest alone does not ipso facto make the conquering tion. State the sovereign of the conquered territory, although Subjuga such territory comes through conquest for the time under the sway of the conqueror. Conquest is only a mode of acquisition if the conqueror, after having firmly established the conquest, formally annexes the territory. Such annexation makes the enemy State cease to exist, and thereby brings the war to an end. And as such ending of war is named subjugation, it is conquest followed by subjugation, and not conquest alone, which gives a title, and is a mode of acquiring territory. It is, however, quite usual to speak of title 1 See above, § 199. 2 As in the case of non-navigable rivers. 3 Concerning the distinction between conquest and subjugation, see below, vol. ii. § 264. by congest, and everybody knows that subjugation after ccquest is thereby meant. But it must be specially mentioned that, if a belligerent conquers a part of th enemy territory and afterwards makes the vanquished State cede the conquered territory in the treaty of pace, the mode of acquisition is not subjugation but ession.1 tion in tion to tion. §237. Som writers 2 maintain that subjugation is Subjuga only a specia case of occupation, because, as they contraassert, through conquest the enemy territory becomes distincno State's land, and the conqueror can acquire it by Occupaturning his military occupation into absolute occupation. Yet this opinion cannot be upheld, because military occupation, which is conquest, in no way makes enemy territory no State's land. Conquered enemy territory, although actually in possession and under the sway of the conqueror, remains legally under the sovereignty of the enemy until through annexation it comes under the sovereignty of the conqueror. Annexation turns the conquest into subjugation. It is the very annexation which uno actú makes the vanquished State cease to exist, and brings the territory under the conqueror's sovereignty. Thus the subjugated territory has not for one moment been no State's land, but passes from the enemy to the conqueror, not through cession, but through annexation. 1 See above, § 216. Annexation by a State of territory hitherto under its administration, or leased to it, or granted to it for its 'use, occupation, and control' (see above, § 171 (2)-(4)), is not subjugation because the annexing State was already exercising sovereignty over the territory in question. Examples of annexations of this kind are the annexation by Austria in 1908 of the Turkish provinces of Bosnia and Herzegovina, and of the Turkish island Ada-Kalé in the Danube in 1913 (these territories having been under her administration since 1878), this may be, they are not a regular 2 Holtzendorff, ii. p. 255; Heim- Justification of Mode of tion. § 238. As long as a Law of Nations hasbeen in Subjuga existence, the States, as well as the vast mority of tion as a writers, have recognised subjugation as a node of Acquisi- acquiring territory. Its justification lies i the fact that war is a contention between States for le purpose of overpowering one another. States whic go to war know beforehand that they risk more or less their very existence, and that it may be a necessity for the victor to annex the conquered enemy territory, be it in the interest of national unity or of safety against further attacks, or for other reasons. One must hope that the time will come when war will disappear entirely, but, as long as war exists, subjugation will also be recognised. If some writers 1 refuse to recognise subjugation at all as a mode of acquiring territory, they show a lack of insight into the historical development of States and nations.2 Subjuga tion of the § 239. Subjugation is, as a rule, a mode of acquiring Whole or the entire enemy territory. The actual process is of Enemy regularly that the victor destroys the enemy military Territory. forces, takes possession of the enemy territory, and then of a Part annexes it, although the head and the Government of the extinguished State may have fled, and may protest, and still keep up a claim. Thus after the war with Austria and her allies in 1866, Prussia subjugated the territories of the Duchy of Nassau, the Kingdom of Hanover, the Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Maine; and Great Britain subjugated in 1901 the territories of the Orange Free State and the South African Republic. But it is possible for a State to conquer and annex a part of enemy territory, either when the war ends by a 1 Bonfils, No. 535; Fiore, ii. No. 863, iii. No. 1693, and Code, No. 7078. See also Despagnet, Nos. 387-390. It should be mentioned that the Pan-American Congress at Washing ton, 1890, passed a resolution that conquest should hereafter not be s mode of acquisition of territory in America; see Moore, i. § 87. treaty of peace in which the vanquished State, without ceding the conquered territory, submits silently 1 to the annexation, or by simple cessation of hostilities.2 It must, however, be emphasised that such a mode of acquiring a part of enemy territory is totally different from forcibly taking possession of a part thereof during the continuance of war. Such a conquest, although the conqueror may intend to keep the conquered territory and therefore to annex it, does not confer a title as long as the war has not terminated either through simple cessation of hostilities or by a treaty of peace. Therefore, the practice, which sometimes prevails, of annexing a conquered part of enemy territory during war cannot be approved. For annexation of conquered enemy territory, whether of the whole or of part, confers a title only after a firmly established conquest, and so long as war continues, conquest is not firmly established.3 For this reason 4 the annexation of the Orange Free State in May 1900, and of the South African Republic in September 1900, by Great Britain during the Boer War was premature. So also was the annexation of Tripoli and Cyrenaica by Italy during the Turco-Italian War in November 1911. quences § 240. Although subjugation is an original mode of Conseacquisition, since the sovereignty of the acquiring State Subof Subjugais not derived from that of the State formerly owning tion. the territory, the new owner-State is nevertheless the successor of the former owner-State as regards many points which have been discussed above (§ 82). It must be specially mentioned that, as far as the Law of Nations5 is concerned, the subjugating State does not acquire the private property of the inhabitants of the annexed 1 See below, vol. ii. § 273. 2 See below, vol. ii. § 263. 'See below, vol. ii. § 60, concerning guerilla war after the termination of real war. Many writers, however, deny that a conquest is firmly established as long as guerilla war is 4 See below, vol. ii. § 167. 5 United States v. Percheman, (1833) 7 Peters 51, and Sayre in A.J., xii. (1918), pp. 475-497. territory. Being now their sovereign, it may indeed impose any burdens it pleases on its new subjects-it may even confiscate their private property, since a sovereign State can do what it likes with its subjectsbut subjugation itself does not by International Law touch or affect private property. 1 As regards the national status of the subjects of the subjugated State, doctrine and practice agree that such enemy subjects as are domiciled on the annexed territory and remain there after annexation become ipso facto by the subjugation 1 subjects of the subjugating State. But the national status of such enemy subjects as are domiciled abroad and do not return, and further of such as leave the country before the annexation or immediately afterwards, is matter of dispute. Some writers maintain that these individuals do in spite of their absence become subjects of the subjugating State; others emphatically deny it. Whereas the practice of the United States of America seems to be in conformity with the latter opinion, the practice of Prussia in 1866 was in conformity with the former. Thus in the case of Count Platen-Hallermund, a Cabinet Minister of King George v. of Hanover, who left Hanover with his King before the annexation in 1866 and was in 1868 prosecuted for high treason before the Supreme Prussian Court at Berlin, this court decided that the accused had become a Prussian subject through the annexation of Hanover.3 I believe that a distinction must be made between those individuals who leave the country before 1 See Campbell v. Hall, (1774) 1 Cowper 208, and United States v. Repentigny, (1866) 5 Wallace 211. The case is similar to that of cession: see above, § 219; Keith, The Theory of State Succession (1907), pp. 45 and 48; Moore, iii. § 379; Edwards in the Journal of the Society of Comparative Legislation, New Ser. xv. (1915), pp. 108-111, 2 See Halleck, ii. p. 476. 3 See Halleck, ii. p. 476, on the one hand, and, on the other, Rivier, ii. p. 436. Valuable opinions of Zachariae and Neumann, who deny that Count Platen was a Prussian subject, are printed in the Deutsche Strafrechts-Zeitung (1868), pp. 304 320. |