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and those who leave it after annexation. The former are not under the sway of the subjugating State at the time of annexation, and, since the personal supremacy of their home State terminates with its extinction through annexation, they would seem to be outside the sovereignty of the subjugating State. But those individuals who leave the country after annexation leave it at a time when they have become subjects of the new sovereign, and they therefore remain such subjects even after they have left the country, for there is no rule of the Law of Nations in existence which obliges a subjugating State to grant the privilege of emigration 1 to the inhabitants of the conquered territory.

1

Different from the fact that enemy subjects become through annexation subjects of the subjugating State is the question what position they acquire within it. This question is one of Municipal, and not of International Law. The subjugating State can, if it likes, allow them to emigrate and to renounce their newly acquired citizenship, and its Municipal Law can put them in any position it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy.

Third

§ 241. Although subjugation is an original mode of Veto of acquiring territory, and no third Power has as a rule 2 a Powers. right of intervention, the conqueror has not in fact an unlimited possibility of annexation of the territory of the vanquished State. When the balance of power is endangered, or when other vital interests are at stake, third Powers can and will intervene, and history records many instances of such interventions. But it must be emphasised that the validity of the title of the subju

1 Both Westlake and Halleck state that the inhabitants must have a free option to stay or leave the country; but there is no rule of International Law which imposes the duty upon a

subjugating State to grant this option.

2 But this rule has exceptions, as in the case of a State whose independence and integrity have been guaranteed by one or more Powers.

gating State does not depend upon recognition on the part of other Powers. Nor is a mere protest of a third Power of any legal weight.

XVII

Conception of

PRESCRIPTION

Grotius, ii. c. 4—Vattel, ii. §§ 140-151—Hall, § 36—Westlake, i. pp. 94-96 -Lawrence, § 78-Phillimore, i. §§ 251-261-Twiss, i. § 129—Taylor, §§ 218-219-Walker, § 13-Wheaton, § 164-Hershey, No. 170-Moore, i. § 88-Bluntschli, § 290-Hartmann, § 61-Heffter, § 12-Holtzendorff in Holtzendorff, ii. p. 255—Ullmann, § 92-Bonfils, No. 534—Mérignhac, ii. pp. 415-418-Despagnet, No. 380-Pradier-Fodéré, ii. Nos. 820829-Rivier, i. pp. 182-184-Nys, ii. pp. 38-44—Calvo, i. §§ 264-265Fiore, ii. Nos. 850-851, and Code, Nos. 1079-1082-Martens, i. § 90G. F. Martens, §§ 70-71-Heimburger, Der Erwerb der Gebietshoheit (1888), pp. 140-155—Audinet in R.G., iii. (1896), pp. 313-325—Ralston in A.J., iv. (1910), pp. 133-144.

§ 242. Since the existence of a science of the Law of Prescrip- Nations, there has always been opposition to prescription. tion as a mode of acquiring territory. Grotius rejected

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the usucaption of the Roman Law, yet adopted from the same law immemorial prescription 1 for the Law of Nations. But whereas a good many writers 2 still defend that standpoint, others 3 reject prescription altogether. Again, others go beyond Grotius and his followers, and do not require possession from time immemorial, but teach that an undisturbed continuous possession can under certain conditions produce a title for the possessor, if the possession has lasted for some length of time.

This opinion would indeed seem to be correct, because

1 See Grotius, ii. c. 4, §§ 1, 7, 9.
2 See, for instance, Heffter, § 12;
Martens, i. § 90.

3 G. F. Martens, § 71; Klüber,
§§ 6 and 125; Holtzendorff, ii.
p. 255; Ullmann, § 92.

Vattel, ii. § 147; Wheaton, § 165; Phillimore, i. § 259; Hall, § 36; Bluntschli, § 290; Pradier-Fodéré, ii. No. 825; Bonfils, No. 534, and many others.

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it recognises theoretically what actually goes on in practice. There is no doubt that, in the practice of the members of the Family of Nations, a State is considered to be the lawful owner even of those parts of its territory of which originally it took possession wrongfully and unlawfully, provided that the possessor has been in undisturbed possession for such a length of time as is necessary to create the general conviction that the present condition of things is in conformity with international order. Such prescription cannot be compared with the usucaption of Roman Law, because the latter required bona-fide possession, whereas the Law of Nations recognises prescription both in cases where the State is in bona-fide possession and in cases where it is not. The basis of prescription in International Law is nothing else than general recognition 1 of a fact, however unlawful in its origin, on the part of the members of the Family of Nations. And prescription in International Law may therefore be defined as the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order. Thus, prescription in International Law has the same rational basis as prescription in Municipal Law-namely, the creation of stability of order.

tion, how

§ 243. From the conception of prescription, as above Prescripdefined, it becomes apparent that no general rule can effected. be laid down as regards the length of time and other circumstances which are necessary to create a title by prescription. Everything depends upon the merits of

This is pointed out with great lucidity by Heimburger, pp. 151155; he rejects, however, prescription as a mode of acquiring territory, maintaining that there is

VOL. I.

2 c

a customary rule of International
Law in existence according to which
recognition can make good originally
wrongful possession.

the individual case. As long as other Powers keep up protests and claims, the actual exercise of sovereignty is not undisturbed, nor is there the required general conviction that the present condition of things is in conformity with international order. But after such protests and claims, if any, cease to be repeated, the actual possession ceases to be disturbed, and thus under certain circumstances matters may gradually ripen into that condition which is in conformity with international order. The question, at what time and under what circumstances such a condition of things arises, is not one of law, but of fact. When, to give an example, a State which originally held an island mala fide under a title by occupation, knowing well that this land had already been occupied by another State, has succeeded in keeping up its possession undisturbed for so long a time that the former possessor has ceased to protest, and has silently dropped the claim, the conviction will be prevalent among the members of the Family of Nations that the present condition of things is in conformity with international order. Or, to give another example, when an incorrectly drawn boundary line, which wrongly allots to one of the States concerned a tract of territory, has for a long time been regarded as correct, the conviction will prevail that the present condition of things is in conformity with international order, even if afterwards the wronged State raises a protest, and demands that the boundary line should be redrawn.1 These examples show why a certain number of years2

1 See Maryland v. West Virginia, (1909) 217 U.S. 22, where it was held that a boundary line which had been for a century regarded as correct should be maintained, although afterwards alleged to be incorrect. court came to this conclusion recognising prescription as conferring title.

The

2 Vattel (ii. § 151) suggests that

the members of the Family of Nations should enter into an agree ment stipulating the number of years necessary for prescription, and David Dudley Field proposes the following rule (52) in his Outlines of an International Code: "The unin terrupted possession of territory or other property for fifty years by a nation excludes the claim of every other nation.'

cannot, once for all, be fixed to create the title by prescription. There are indeed immeasurable and imponderable circumstances and influences besides the mere lapse of time 1 at work to create the conviction that in the interest of stability of order the present possessor should be considered the rightful owner of a territory. And these circumstances and influences, which are of a political and historical character, differ so much in the different cases that the length of time necessary for prescription must likewise differ.

XVIII

LOSS OF STATE TERRITORY

Grotius, ii. c. 9-Hall, § 34-Phillimore, i. §§ 284-295-Moore, i. §§ 89 and 90-Hershey, Nos. 188-190-Holtzendorff in Holtzendorff, ii. pp. 274276-Gareis, § 70-Liszt, § 10-Ullmann, § 100-Pradier-Fodéré, ii. Nos. 850-852-Bonfils, No. 544-Rivier, i. § 13-Fiore, ii. No. 865-Martens, i. § 92.

State

§ 244. To the five modes of acquiring sovereignty Six Modes over territory correspond five modes of losing it- of losing namely, cession, dereliction, operation of nature, sub- Territory. jugation, prescription. But there is a sixth mode of losing territory-namely, revolt. No special details are necessary with regard to loss of territory through subjugation, prescription, and cession, except that it is of some importance to repeat here that the historical cases of pledging, leasing, and giving territory to another State to administer are in fact, although not in strict law, nothing else than cessions 2 of territory. But operation of nature, revolt, and dereliction must be specially discussed.

1 Heffter's (§ 12) dictum, 'Hundert Jahre Unrecht ist noch kein Tag Recht,' is met by the fact that it is not the operation of time alone,

but the co-operation of other circum-
stances and influences which creates
the title by prescription.

2 See above, §§ 171 and 216.

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