enlightened maritime power with respect to a contiguous island which could be fairly deemed of military importance to it.

By virtue of a principle known as that of accretion, a State may be said to acquire with respect to the outside world an original and exclusive right of sovereignty over lands which, imperceptibly in their process of formation, are added to its coasts and shores, or which so come into being as islands appendant thereto.1 No formal acts of appropriation are required.2

When the appendage is on the ocean coast, neither the process of formation nor the length of time involved in it appears to be a matter of international concern.3 The creation of the right of sovereignty, and likewise the question of ownership, are not dependent upon whether the new land is due to the work of men's hands, or formed by the action of water or attributable to other natural causes. Nor is it important whether it is in fact of sudden

1 The Anna, 5 C. Rob. 373. "The doctrine of the English cases is, that accretion is an addition to land coterminous with the water, which is formed so slowly that its progress cannot be perceived, and does not admit of the view that, in order to be accretion, the formation must be one not discernible by comparison at two distinct points of time." Blatchford, J., in Jefferis v. East Omaha Land Company, 134 U. S. 178, 193.

See County of St. Clair v. Lovingston, 23 Wall. 46, 68, where Mr. Justice Swayne declared: "In the light of the authorities alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous. It is different from reliction, and is the opposite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the progress was going on. Whether it is the effect of natural or artificial causes makes no difference. The result as to the ownership in either case is the same." 2 The term accretion employed by English writers with reference to the acquisition of newly made lands was, notwithstanding its Latin derivation, not borrowed from the Roman law. Neither in the Institutes, nor in the works of its classic commentators is there any word of similar origin used with such a signification. The term accretio of that law was always employed in connection with another branch of law. The word alluvio was used in the Institutes to describe the process by which land was imperceptibly formed by the action of the water; and the rules of ownership applicable thereto were confined chiefly to situations where the formation occurred within a river. The earliest writers on international law borrowed the principle of alluvio, in so far as it was applicable to international disputes relating to newly made lands. Inasmuch, however, as those disputes related to broader problems than those for which the Roman law made provision, the term alluvio was incapable of describing generally either a process or a legal principle concerning the acquisition of newly made lands, however and wherever formed. The author acknowledges his indebtedness to Prof. Roscoe Pound and to Prof. Albert Kocourek for guidance enabling him to make this statement.

Opinion of Sir William Scott, in The Anna, 5 C. Rob. 373, 385b-385d; Opinion of Mr. Justice Holmes, in Ker v. Couden, 223 U. S. 268, concerning the public ownership of accessions by accretion on the ocean coast in the Philippine Islands.

CONQUEST

[§ 106 and perceptible growth, manifesting an instance of avulsion rather than accretion.1

When, however, new land comes into being along the shore of a river constituting an international boundary, the facts to which its existence are attributable may have significance. Even in such a situation causes productive of accretion seem to have no effect upon the creation of a right of property and control in favor of the State to whose territory such land is appendant, subject to the general limitation that no riparian proprietor may by its own acts, as through artificial works, lawfully alter the boundary.2

When new lands are gradually and imperceptibly formed within the course of a river, whether attached either to the shore or arising as islands, the right of sovereignty is in that State on whose side of the boundary line the formation occurs.3

The term conquest appears to be used to refer to at least two distinct processes or activities: first, that by which a military commander in time of war gains possession of hostile territory and subjects it and its occupants to his control; and secondly, that by which a victorious belligerent compels its enemy to surrender the sovereignty of territory belonging to it.

It is not believed that conquest indicates a mode by which a right of sovereignty comes into being, or by virtue of which an existing one is transferred. If the inhabitants of the territory concerned are an uncivilized people, deemed to be incapable of possessing a right of property and control, the conqueror may, in fact, choose to ignore their title, and proceed to occupy the land as though it were vacant. In such case the conquest refers merely

1 Thus it is possible where land comes into being on the ocean coast by some sudden act of violence, however induced, for a right of property and control to be created simultaneously. That the case is one of avulsion rather than of accretion seems to be unimportant.

It should be observed that the litigated cases in the United States and elsewhere, which do not involve decisions as to the extent of the right of a maritime State under international law to assert, as against any other State, sovereignty or ownership over new lands which are added by various processes to its ocean coast, are not to be regarded as purporting to mark the limits of the claim.

2 See Thalweg, infra, § 138.

3 St. Louis v. Rutz, 138 U. S. 226, 250, 251. Also, Islands, infra, § 139. 4 Story, J., in United States v. Rice, 4 Wheat. 246, 254. Declares Oppenheim: "Conquest is the taking possession of enemy territory through military force in time of war." 2 ed., I, § 236.

Belligerent Occupation, Nature and Effect, infra, § 688.

5 Westlake, "The Nature and Extent of the Title by Conquest", Collected Papers, 475, reprinted from Law Quar. Rev., XVII, 392–401.

to the military or physical effort by means of which occupation becomes possible. If, on the other hand, the vanquished enemy is a State, or a country whose exclusive rights as sovereign over the territory have been respected, the conqueror is not, at least at the present time, regarded as deriving rights of property and control from the military achievement. Although the victor may be able to bring about a transfer of rights of sovereignty by some appropriate action, the bare possession of such power does not suffice to effect a change. The State whose armies have gained control of enemy territory and occupied it may have no design of doing more. In such case it would be unreasonable to shift the title, and transform the conqueror into the territorial sovereign, even against its will. Thus in practice, upon the withdrawal of a belligerent occupant, the normal government of the State resumes automatically the exercise of its rights as sovereign which are deemed to have been suspended rather than transferred during the period of occupation.1

If, however, the conqueror so desires, it may, in theory, retain as the fruits of victory the territory which is held, and acquire the sovereignty thereof. The common method of so doing is by compelling a transfer embodied in an appropriate treaty.2

The conqueror may in fact resort to a different procedure. It may formally annex the occupied yet hostile territory to its own domain. By so doing it announces to the outside world both the design to acquire the rights of property and control over the

1 Referring to the belligerent occupation by Great Britain of Castine during the war of 1812, Mr. Justice Story declared in the case of the United States v. Hayward: "It could only be by a renunciation in a treaty of peace, or by possession so long and permanent, as should afford conclusive proof, that the territory was altogether abandoned by its sovereign, or had been irretrievably subdued, that it could be considered as incorporated into the dominions of the British sovereign." 2 Gall. 485, 501. Marshall, C. J., in The American Insurance Company v. Canter, declared: "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace." 1 Pet. 511, 542. Cf., also, United States v. Rice, 4 Wheat. 246, 254; Fleming v. Page, 9 How. 603, 614-616.

"It is quite true that down to the middle of the eighteenth century the practice of belligerent nations was in accord with the theory that all kinds of property, coming into the hands of one of the parties to the war, vested in him as conqueror and were subject to his absolute disposal, so that he might even alienate or cede the occupied territory while the issue of hostilities remained undecided. [Citing Hall, Int. Law, 4th ed., 482 et seq.] But since that period this rule has been either abandoned or subjected to very considerable limitations both in theory and in practice.” Moore, Arbitrations, II, 1607.

2 Thus in concluding peace with Spain in 1898, the United States secured by cession rights of sovereignty over territory which was then within its possession. See, for example, Art. II of treaty with Spain, of Dec. 10, 1898, Malloy's Treaties, II, 1691.

IN GENERAL

[§ 107 area involved, and the achievement of that end solely by its own act. This process is described as subjugation. It betokens not only the acquisition of rights of sovereignty by virtue of sheer power, but also unconcern on the part of the conqueror as to the lack of any agreement manifesting acceptance of the change by its foe. Subjugation, in so far as it is employed with respect to territory already subjected to rights of property and control by the country which is ousted therefrom, cannot be regarded as indicative of a method by which a right of sovereignty comes into being or is created. It manifests rather a mode by which an existing right of property and control is taken away from one State (possibly by its very extinction) and lodged in another.

It seems important to observe that at the present time there appears to be much less interest on the part of the family of nations in the mode, howsoever described, by which a conqueror compels its enemy to yield rights of sovereignty, than in the fundamental inquiry whether the conqueror should be deemed to possess a right, limited solely by its power to enforce its will.3 Inasmuch as it is in connection with the transfer rather than the creation of rights of property and control that the problem arises, it is discussed elsewhere.4

Cession is a process by which rights of property and control are transferred by one State to another. The terms of transfer

1

Oppenheim, 2 ed., I, §§ 236–241.

"As in the case of other modes of acquisition by unilateral acts, it is necessary to the accomplishment of conquest that intention to appropriate and ability to keep shall be combined. Intention to appropriate is invariably, and perhaps necessarily, shown by a formal declaration or proclamation of annexation.' Hall, Higgins' 7 ed., § 204.

2 "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-Main, and Great Britain subjugated in 1900 the territories of the Orange Free State and the South African Republic." Oppenheim, 2 ed., I, § 239.

In the course of its war with Turkey, Italy, by a law of February 25, 1912, following a Royal Decree of November 5, 1911, annexed Tripoli and Cyrenaïca, placing them under its full sovereignty. Collezione Celerifera, 1912, p. 82.

3 Declared President Wilson in an address before the Congress Jan. 8, 1918: "The day of conquest and aggrandizement is gone by." Official Bulletin, Vol. II, No. 202.

Cession, Validity, The Principle of Self-Determination, infra, § 108.

are embodied in an agreement which commonly assumes the form of a treaty. There is always manifested an act of surrender by a grantor, and one of acceptance by a grantee. In this respect cession differs from relinquishment, a process which is perfected by the appropriate act of the relinquisher, and which thus obviates the necessity of action by a grantee.1

An act of cession may not in fact be described as such in the agreement which sets forth the transfer. Any terms suffice which express the design of a grantor to give over its rights to a grantee, and of a grantee to take what is yielded. The interested parties are not, however, likely to have recourse to a treaty purporting to be one of cession unless it is agreed that the right of sovereignty has not already been transferred to the proposed grantee by some other process, and that it is desirable, if not essential, that there be a formal surrender of that right by a grantor. A cession usually implies, therefore, respect for the actual as well as theoretical lodgment of rights of property and control in the State called upon to divest itself thereof. When in consequence of the operations of a war those rights have been in fact wrung by force from a vanquished State, the only requirement at the conclusion of the conflict may be some appropriate acknowledgment of what has taken place.3

1 Relinquishment, infra, § 115.

2 The treaties by virtue of which the United States has acquired rights of sovereignty through acts of cession on the part of foreign States have commonly referred to the mode of transfer as one of cession. As a recent instance, cf. Art. I of convention with Denmark of Aug. 4, 1916, providing for the cession of the Danish West Indies, U. S. Treaty Series, No. 629, Am. J., XI, Supp., 53. It should be noted, however, that the treaty of peace with Mexico of Feb. 2, 1848 (Guadalupe Hidalgo), whereby the United States acquired much territory from Mexico, merely referred to the transfer by a declaration (Art. V; Malloy's Treaties, I, 1109) indicating how the new boundary should run. another portion of the same treaty reference to the transfer was made in connection with the treatment to be accorded "Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty." Art. VIII.

In

3 In the treaty of peace with Germany of June 28, 1919, the new boundaries of that State were minutely described so as to exclude (subject to specified reservations) from Germany the territory contiguous thereto and of which the sovereignty was, by any process, deemed to be transferred. (Part II, Arts. 2730.) Acts amounting to cession were elsewhere variously described. By Art. 45 there was a definite cession of the coal mines in the Saar Basin to France. There was also an agreement to cede "all rights and title" to France over such part of the Saar Basin as might be specified by the League of Nations, in the event of a decision of the inhabitants thereof in favor of union with France at the termination of fifteen years from the coming into force of the treaty. (Chap. III of Annex following Art. 50.) According to Art. 51, the territories of Alsace-Lorraine, which had been "ceded" to Germany in 1871, were "restored to French sovereignty" as from the date of the armistice, Nov. 11, 1918. In numerous Articles it was declared that Germany re