military operations; but if a province conquered in a war is afterward made over to the victorious power by treaty, it is acquired by cession. Title by conquest arises only when no formal international document transfers the territory to its new possessor. "When territory changes hands by cession or conquest, the fact that allegiance is now based upon consent is usually recognized by the insertion of a clause in the treaty by which the conquest is completed or the cession accomplished, permitting such of the inhabitants as desire to retain their former citizenship to dispose of their property and return to the state of their original allegiance. Individuals who decline to take advantage of this permission and elect to remain in the ceded territory are presumed to consent to the change in allegiance which is involved in the conquest or cession. From the nature of the case, however, no formal guarantee of the allegiance of the population of territory thus transferred is either given or expected. It is proper to say, also, that while the inhabitants of conquered or ceded territory become vested with the rights of citizenship by the fact of conquest or cession, in so far as other states are concerned, their actual absorption into the body politic of the conquering state is a matter which is regulated not by international law but by the constitution and laws of the state to which their allegiance has been transferred by conquest or cession." In the cession of Alsace and Lorraine it was provided by the treaty of Frankfort, of 1871, that those who wished to retain their French nationality must emigrate, but they were allowed to retain the ownership of their real estate within the ceded territory. It may be considered to be a general rule that, whenever political jurisdiction is transferred over certain territory from one state to another, the existing and strictly municipal laws continue in force until changed by the new govern1 Lawrence's "Principles," 4th ed., par. 77. 2 Davis, “Int. Law," 3d ed., p. 346. In some cases, ment. This may be done gradually or at once. like that of Louisiana, the laws based upon Roman law have been allowed to continue in a very large degree until the present time. Certainly it is more equitable to have such radical changes in legal institutions to occur gradually. TOPICS AND REFERENCES 1. The Meaning of Military Occupation Higgins, "The Hague Peace Conferences," sec. III, 245, etc. Holland, "Laws of War on Land," 52. G. B. Davis, "International Law," 3d ed., 327-331. 2. The Authority of the Military Occupant Oppenheim, "International Law," 2d ed., vol. II, 210-225. Moore's 3. Limitations to the Military Authority of the Occupant Westlake, Higgins, "Hague Peace Conferences," 265-272. Hall, "International Law," 6th ed., 464-480. Hershey's "Essentials," 410417. 4. Termination of War Oppenheim, "International Law," 2d ed., vol. II, 322-7. Hall, "International Law," 6th ed., 553-571. Moore's "Digest of International Law," vol. VII, par. 1163. 5. Treaty of Peace Oppenheim, "International Law," 2d ed., vol. II, 327-332. 6. Effects of a Treaty of Peace Stockton's "Manual for Naval Officers," 208, 213. Davis, "International Law," 3d ed., 343-5. Westlake, "International Law," 2d ed., vol. II, 57. 7. Conquest and Cession Moore's "Digest," vol. VII, par. 1156. Oppenheim, 2d ed., vol. PART V RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS CHAPTER XXIII NEUTRALITY AND ITS DEVELOPMENT. RIGHTS AND DUTIES OF NEUTRALS IN LAND WARFARE 174. The Creation of Neutral States by Commencement of War. It has been seen in the previous pages of this book that, in general, international law, so far as it is concerned with the relations of states and peoples, may be separated into two great divisions, the first dealing with the time of peace and the second with a period of war. The period of war, so far as states are concerned, is in its turn subdivided into two parts; the first concerning the relations between the opposing belligerent states, and the second treating of the relations between the opposing belligerents and the states remaining in peace, and which have become by the existence of war neutral parties to the conflict; of this last subdivision we now propose to treat. No matter how much war is to be regretted and, if possible, avoided, it is recognized by international law as a legal method of procedure for the enforcement of rights and the redress of wrongs and also for the settlement of disputes in a great conflict of wills between states. "The existence of war," says Westlake, "as between the belligerents imposes the duties of neutrality on third powers and their subjects and gives them what are called the rights of neutrals, but which are in truth only the limitations of its duties, for no new right accrues to a neutral as such. But although the duties arise from the facts, it would be unjust to impose them without notification of the facts or something equivalent to them." This is provided in The Hague convention of 1907 in the Convention VI, relative to the commencement of hostilities in which it is stated in Article 2 that "the state of war should be notified to the neutral powers without delay and shall not take effect in regard to them until after the receipt of a notification, which may even be made by telegraph. Nevertheless, neutral powers cannot plead the absence of notification if it be established beyond doubt that they were in fact aware of the state of war."2 In the case of civil war which commences without a regular declaration of war, duties of neutrality are created similar to those existing in war between states for all of the powers not engaged in the hostilities. A recognition of the state of blockade duly proclaimed at once brings into play neutral duties and restrictions as well as the rights of belligerents. 175. The Status and Principles of Neutrality. The status of strict neutrality in war may be described as a complete abstinence on the part of the neutral states from any participation in the war, coupled with absolute impartiality toward the opposing belligerent states in all other matters. State neutrality which becomes incumbent on the part of those states not engaged in the war is not only a right but a duty. It is a duty performed voluntarily, except in the cases of the neutrality required by treaty from such permanently neutralized states as Switzerland, Belgium, and the Grand Duchy of Luxemburg. Professor Holland, a leading British jurist, considers the obligations of a neutral state as being of three classes, involving respectively abstention, prevention, and acquiescence. 1 Westlake, "Int. Law," 2d ed., vol. II, p. 30. "1. Abstention is of a negative character. It consists of restrictions upon the free action of the neutral state, by which it is, for instance, bound not to supply armed forces to a belligerent, not to grant passage to such forces, and not to sell him ships or munitions of war, even when the sale takes place in the ordinary course of getting rid of superfluous or obsolete equipment. "2. Prevention. The second class of neutral obligations is of much wider scope than the first and gives rise to a greater number of debatable questions. It is positive in character, imposing on the neutral state duties of interference with the action of belligerents and of its own subjects. "3. Acquiescence. The third head of neutral duty is of a negative character, obliging the neutral state to acquiesce in acts on the part of belligerents which, but for the existence of war, would be unlawful and ground for redress."1 What are called the general rights of neutral states, on the other hand, include those of a complete inviolability of territory, both land and water, from the warlike operations of the belligerents. This inviolability can be secured by them, if necessary, by force of arms. Neutral states have also freedom of trade on land and sea with all states, including the belligerents, as in time of peace, except so far as the carriage of contraband, evasion of blockade, or unneutral service to the belligerents is concerned. In case of capture, for these offences, of their merchantmen on the high seas or in belligerent territorial waters neutral states have the right to require a fair trial before condemnation of the goods or vessel. Neutral states have also the right to afford asylum to troops or vessels seeking it, provided they disarm and intern them until the end of the war. They have also the right to allow entrance of belligerent vessels of war under certain limitations into their ports, but they can also, if they choose, exclude them 1 Holland, "Transactions of the British Academy," vol. II, p. 58. |