LIST OF BOOKS CITED:

I.-General Treatises on International Law.

BLUNTSCHLI.1.-"Le Droit international codifié," French translation from German, by M. C. Lardy, 5th ed. Paris, 1895.

CALVO "Le Droit international théorique et pratique," 5th ed., 6 vols. Paris, 1896.

FIORE.—“ Trattato di diritto internazionale pubblico," 3rd ed., 3 vols. Turin, 1887-91.

HALL. "Treatise on International Law," 5th ed. Oxford, 1904.

HALLECK.- "Elements of International Law," edited by Sir Sherston Baker, 2 vols. London, 1878.

HARTMANN." Institutionen des praktischen Völkerrechts," 2nd ed. Hanover, 1878.

HEFFTER." Das europäische Völkerrecht der Gegenwart," edited by Geffcken. Berlin, 1888.

HOLTZENDORFF.-" Encyclopädie der Rechtswissenschaft," 5th ed. Leipzig, 1889-90 (cited as "Encyclopädie ").

HOLTZENDORFF.- “Handbuch des Völkerrechts." Hamburg, 1885–90.

MARTENS (F. v.). ---“ Völkerrecht," German edition by Bergbohm, 2 vols. Berlin, 1883-6.

PHILLIMORE. -"Commentaries on International Law," 4 vols., 2nd ed. London,

1871-4.

PRADIER-FODÉRÉ.-"Traité de droit international public européen et americain," 6 vols. Paris, 1885–94.

RIVIER." Principes du droit des gens," 2 vols. Paris, 1896.

WESTLAKE.- ""

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International Law," Part I., "Peace." Cambridge, 1904. WHARTON." Digest of the International Law of the United States," 3 vols. Washington, 1887.

WHEATON.- -" Elements of International Law," edited by Atlay. London, 1904.

II.-Special Treatises on State Succession.

APPLETON.- "Des effets des annexions de territoires sur les dettes de l'Etat, demembré ou annexé, et sur celles des provinces departements, etc., annexés." Paris, 1895.

CABOUAT." Des annexions de territoire et de leurs principales conséquences." Paris, 1881.

GABBA.—“ Quistioni di diritto civile: X Successione di Stato ai Stato," 2nd ed.

Turin, 1885.

HUBER." Die Staatensuccession." Leipzig, 1898.

KIATIBIAN.“ Conséquences juridiques de la transformation des Etats sur les traités." Paris, 1892.

SELOSSE." Traité de l'annexion au territoire français et de son démembrement.” Paris, 1880.

III.-Treaties cited.

These will be found printed in :—

HERTSLET'S "State Papers," or his "Map of Europe by Treaty," 4 vols., or his Map of Africa by Treaty," 3 vols.

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And also in

G. F. DE MARTENS' "Recueil de Traités." Gottingen, 1817-35.

And its continuations the

"Nouveau Recueil de Traités," 1817-42, and the "Nouveau Recueil général de Traités," 1st and 2nd series, 1843-96.

THE THEORY OF STATE SUCCESSION, WITH
SPECIAL REFERENCE TO ENGLISH AND

COLONIAL LAW.

CHAPTER I.

THE LEADING THEORIES OF STATE SUCCESSION.

THE cases in which there arises, or appears to arise, a transfer of the rights and obligations of one state to another may be classified on one or other of two principles. The main distinction may be drawn between (1) the transfer of a part of one state to another state, whether as the result of bare conquest, rebellion or cession, and (2) the absorption of a whole state into another state, whether by bare conquest or by self-cession. In the former case there remain two states of International Law between whom the obligations of the ceded territory or the conquered province must be shared; in the latter, one state must in some way sustain a double personality. But important as this distinction is, it is, in our view, for reasons which will be further developed in Chapter II., better to accept as the fundamental division that between (1) cases of cession and (2) cases of conquest, thus distinguishing the instances, not on the basis of the extent to which the state is affected by the change, but on the basis of the mode in which the change comes about, by agreement or by force. Under the first of these two heads fall cases of incorporation in a federal union; under the second, cases where a part of a state rebels and finally wins recognition as a separate state without the conclusion of any treaty with the parent state. Each of these heads, cession and conquest, may be sub-divided on the principle first proposed of completeness or partiality.

As is natural, it is customary to treat both sets of cases as falling under the same law. It is true that such an attempt has to meet obvious difficulties. At first sight nothing can be more disparate than cession and conquest. In the former the terms of settlement are drawn up by mutual consent, while in the latter the settlement is left to the victor's pleasure. In the former case there is a contract of the most solemn kind known to International Law, any violation of which gives to the other party the right of diplomatic action or of war on a just casus belli. Even in the extreme instance of a complete self-cession the contract of cession remains binding under International Law, and would afford just ground for interference by foreign powers. On the other hand, even if a conqueror after annexation were to offer favourable terms to those of his opponents in the annexed territory who still resisted on condition of their abandoning their resistance, he would not be bound in the eyes of International Law, which recognises only sovereign states as parties capable of contracting. So Russia consistently declined to permit any right of diplomatic representation with regard to her engagements towards Poland after 1815, and it may safely be said that no foreign power would have felt itself justified in criticising diplomatically the action taken by His Majesty's Government in carrying out the articles of peace which terminated the war with the South African Republic and the Orange Free State.

Despite these patent differences between the two cases the writers on International Law, as a rule, proceed to assume that there must be some common basis

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on which the facts can he dealt with, and this basis they find by subsuming all the instances under the head succession, and by determining the content of this conception by generalisations from the conditions usually contained in treaties of cession. The principles thus attained, they apply, in the first instance, to cases of cession where there is omitted, by accident or otherwise, some point usually provided for in such treaties, and then by a far bolder stretch to cases of pure conquest.

On the face of it this is a distinctly arbitrary proceeding, but it is rendered plausible by the peculiar value attributed by some of the leading continental authorities on International Law to treaties as determining the nature of such law. This view is conclusively combated by Hall (International Law, pp 7-12), and it does not seem possible seriously to maintain it. It may be argued, with at least equal plausibility, that stipulations in treaties are inserted to oust the application of the ordinary rules of International Law, and, as will be seen throughout this discussion, the stipulations actually inserted in treaties of cession are of so varied a nature, and differ in so many points of principle as well as of detail, that it would be quite impracticable to construct from them any consistent or harmonious body of doctrine.

Indeed, even in the case most favourable for this line of argument—that is, where a treaty of cession is silent on some point usually dealt with in such treaties— we shall find reason to believe that the common law of annexation and not a law derived from the comparison of treaty stipulations is the principle which is, in fact, applied by states in determining their action. Nor is this in any way unnatural, for the essence of cession is the total abandonment by the ceding power of its sovereign rights over the ceded lands, and à priori all the incidents of conquest must attach unless the treaty expressly exempts them. Cases of cession stand, therefore, on the same footing as cases of conquest, and it remains to be seen how far the results obtained on an examination of treaties of cession can be applied to cases of annexation.

The answer to this question depends on the content of the conception of succession. The question is whether succession denotes substitution or change merely or substitution with continuity, whether the state maintains in some sort a personality despite the change or whether a new personality in nowise connected with the old personality comes into being. The view prevalent among jurists, both on the Continent and in England, is that succession involves continuation. The origin of the idea belongs to the earliest period of International Law. As the state was regarded as a person, it was an obvious and indeed an inevitable step to go further and identify the conqueror of the state to which the cession was made as succeeding to the universum jus on the analogy of the heir in Roman Law. For example, Grotius (Book ii., Chapter IX., sec. 12) says: "Hæredis personam quoad dominii tam publici quam privati continuationem pro eadem censeri cum defuncti persona, certi est juris," and again (Book iii., Chapter VIII., sec.2): "Potest imperium victoria acquiri, ut est in rege alio imperante, et tunc in ejus jus succeditur.' should be noted, however, that Grotius does not carry out to its logical conclusion the doctrine which he here enunciates. He recognises (Book iii., Chapter VIII.) the right of a state to conquer another, and that the property of conquered states falls to the victor, including incorporeal rights, but he never asserts that the conqueror is saddled with any of the obligations of the conquered. On the contrary, he approves the view that all things belonging to the conquered become the property of the conqueror, and that it is for the conqueror to decide what the conquered may keep and what he must forfeit. But whatever Grotius' view was, the analogy to the Roman heir was carried out more logically by his successors. Heffter (Das europäische Völkerrecht, para. 178) distinctly recognises it, and Bluntschli (Droit international, para. 54) declares that both rights and obligations of extinguished states pass to the successor. Halleck (International Law, ii., 495) says: "Complete conquest, by whatever mode it may be perfected, carries with it all the

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rights of the former Government, or, in other words, the conqueror by completion of his conquest becomes, as it were, the heir and universal successor of the defunct

or extinguished state." Hall (p. 99) says: "When a state ceases to exist by absorption in another state, the latter in the same way is the inheritor of all local rights, obligations and property." Similarly, he holds (p. 92) that when a new state is formed out of an old one the new state has the rights which attached by treaty to its local limits, and is saddled with local obligations such as that to regulate the channel of a river, and local debts, whether they be debts contracted for a local object or secured on local revenues, are binding upon it. Phillimore (International Law, iii., 814) expressly adopts the view that the succeeding state is in the position of a Roman heir, and this view is also found in most manuals on International Law.

This view, however, despite the weight of the authority in its favour, cannot, it is submitted, stand examination. According to Sohm's Institutes (E. T., ed. 2, p. 526) the heir succeeded to the personality of the deceased. He took all his rights, but became liable for all his debts to the full extent, not only of the inherited property, but to the extent of his own means. But it cannot seriously be contended that this is the position of a state which succeeds, for, in the first place, the state does not succeed to the personality of the former state. This is sufficiently proved by the fact that it has never been held that the successor is bound by treaties of a personal nature, such as treaties of alliance or guarantee. In fact, as Huber points out (Die Staatensuccession, p. 18), the state succeeds to the rights and liabilities as its own. The personality of the former state disappears absolutely, and what is succeeded to is not the personality but the "jura.' The successor of International Law steps into the rights and obligations of the predecessor as though they were his own. In the second place, the conception of an heir in the early Roman Law was that of a person who had to be heir whether he wished to be so or not, and it has been conjectured that really the heir was ab initio a Co-owner. Whatever the truth of this doctrine, -and it raises, of course, the question still open to dispute,--whether a collective or an individual ownership is the earlier (cf. Pollock and Maitland, History of English Law, Book ii., Chapter V., with Vinogradoff, Doomsday-book, p. 13, and my note in the Journal of the African Society, January, 1907), yet there can be no doubt that the successor in International Law is quite different; whether he conquers or obtains by cession, he succeeds through an act of his own will.

These differences have given rise to another theory which appears as early as Cocceijus in his Commentary on Grotius, quoted in Huber (p. 191, n. 42): "Negamus in successionibus regnorum successoris personam pro eadem censeri cum persona defuncti." A new personality takes over all the rights and obligations of its predecessor. This view has been developed with great force by Huber, and is accepted in a modified form by Westlake (International Law, Part I., p. 69). It may be interesting to compare it as modified with the universal succession mentioned by Sohm (p. 526) as an alternative possibility to the universal succession of Roman private law. He points out that admitting that the heir succeeds to all the rights and liabilities of the deceased, yet he may succeed to them only in such a manner that his liability for the obligations of the deceased shall be limited by the amount of the assets he has received from him. That is to say, he doɛs not take over the personality of the deceased. He takes over a bundle of rights and obligations which he deals with as he likes, on the understanding that as far as the assets go he must meet the liabilities, and no further. The advantages of this modification of the doctrine (cf. p. 70) are striking, as it enables its supporters to escape the difficulty which confronts Huber's form of the theory that a state which had been driven to annex another state which by reason of its bankruptcy was unable to maintain order in its own territories, and so was a menace to neighbouring powers, might find itself forced to discharge the