1

December 9, 1919, in regard to the adjustment of the territorial dispute with the Serb-Croat-Slovene Kingdom, it was declared that "the broad principle remains that it is neither just nor expedient to annex as the spoils of war territories inhabited by an alien race, anxious and capable to maintain a separate national State." Inasmuch as he deemed that revised proposals offered to the Jugoslav delegation by the British and French Governments January 14, 1920,2 failed to adhere to this principle, partly because it demanded the acceptance as an alternative, of the Treaty of London of 1915, believed to be at variance with the idea of self-determination, President Wilson on February 10, 1920, made vigorous protest.3 It was declared in his behalf that if it did not appear feasible to secure acceptance of the concessions offered in the memorandum of December 9, he would be obliged to "take under serious consideration the withdrawal of the treaty with Germany and the agreement between the United States and France of June 28, 1919", which were then before the Senate. Following a reply signed by the Prime Ministers of France and Great Britain, February 17, 1920, the President on February 24, 1920, addressed to them a note in which he declared it to be "the central principle fought for in the war that no government or group of governments

1 For the text of the memorandum see Congressional Record, Feb. 27, 1920, LIX, No. 66, p. 3779.

2 See Congressional Record, Feb. 27, 1920, LIX, No. 66, p. 3782, for a paraphrase of the proposals of Jan. 14, 1920. Cf. also inquiry of Mr. Lansing, Secy. of State, Jan. 19, 1920, id.: also statement of the French and British Prime Ministers of Jan. 23, 1920, communicated to Mr. Wallace, American Ambassador at Paris, for transmission to Mr. Lansing, id. It should be observed that the United States was not a party to the proposals of Jan. 14, 1920, and does not appear to have been informed as to their contents until the response elicited by Mr. Lansing's inquiry.

3 Congressional Record, Feb. 27, 1920, LIX, No. 66, pp. 3783-3784. It was here said in part: "But if substantial agreement on what is just and reasonable is not to determine international issues, if the country possessing the most endurance in pressing its demands rather than the country armed with a just cause is to gain the support of the Powers, if forcible seizure of coveted areas is to be permitted and condoned and is to receive ultimate justification by creating a situation so difficult that decision favorable to the aggressor is deemed a practical necessity; if deliberately incited ambition is, under the name of national sentiment, to be rewarded at the expense of the small and the weak; if, in a word, the old order of things which brought so many evils on the world is still to prevail, then the time is not yet come when this Government can enter a concert of Powers the very existence of which must depend upon a new spirit and a new order. The American people are willing to share in such high enterprise, but many among them are fearful lest they become entangled in international policies and committed to international obligations, foreign alike to their ideals and their traditions. To commit them to such a policy as that embodied in the latest Adriatic proposals and to obligate them to maintain injustice as against the claims of justice, would be to provide the most solid ground for such fears. This Government can undertake no such grave responsibility."

DEPENDENT STATES AS GRANTORS

1

[§ 110

has the right to dispose of the territory or to determine the political allegiance of any free people." His position was that "the Powers associated against Germany gave final and irrefutable proof of their sincerity in the war" by writing into the treaty of Versailles, Article X, of the Covenant of the League of Nations, which was said to constitute an assurance that all the great Powers had done what they had compelled Germany to do to forego all territorial aggression and all interference with the free political selfdetermination of the peoples of the world.2 The President announced that he would make no objection to a settlement mutually agreeable to Italy and Jugoslavia regarding their common frontier in the Fiume region, provided that such an agreement was not made on the basis of compensations elsewhere at the expense of nationals of a third Power; and he suggested that the results of direct negotiations of the two interested Powers would fall within the scope of the principle of self-determination.

(ii)

§ 110. Dependent States as Grantors.

A dependent State, by reason of the relationship which it bears to the State on which it depends, doubtless lacks the right, without the consent of the latter, to cede territory. The agreement establishing that relationship may definitely refer to this fact. Such was the case in the treaty of May 22, 1903, declaratory of the fundamental relations to exist between the United States and Cuba, and fixing the status of the latter.3

1 Congressional Record, Feb. 27, 1920, LIX, No. 66, p. 3786.

2 It should be observed that in defending their proposals of Jan. 14, 1920, the British and French Governments adverted to the difficulty of reconciling ethnographic with other considerations in general treaties of peace, and declared that this was recognized by President Wilson and his colleagues. That ethnologic reasons could not be the only ones to be taken into account, was said to be "clearly shown by the inclusion of three million Germans in CzechoSlovakia and the proposals so actively supported by the United States delegation for the inclusion within Poland of great Ruthenian majorities, exceeding three million five hundred thousand in number, to Polish rule."

3 Art. I, Malloy's Treaties, I, 363; cf. Oppenheim, 2 ed., I, § 215. On November 28, 1907, a treaty was concluded in behalf of Belgium and the Independent State of the Congo, providing for the cession of the latter to the former. Am. J., III, Supp., 73. See, also, a decree suppressing the foundation of the Crown, March 5, 1908, id., III, 87; Belgian laws of Oct. 18, 1908, approving treaty of cession, and act additional thereto. Arch. Dip., CVII, 291 and 293. It will be remembered that both the grantor and the grantee, at the time of the conclusion of the treaty, were neutralized States.

(iii)

§ 111. Belligerent States as Grantors.

A State engaged in war does not necessarily lack the right to make a valid cession of territory to a neutral. There may be circumstances where, as between the neutral grantee and the enemy of the grantor, there are no equities in favor of the latter. This would appear to be true where the transfer of rights of property and control offered no interference with the military or naval operations of the belligerents. A different situation would arise, however, if the territory concerned were occupied by the enemy of the grantor, or were in its grasp, or were within the zone of hostilities. In such case the lands sought to be transferred by virtue of a treaty of cession would doubtless not be deemed to acquire a neutral character, and would continue to be regarded for belligerent purposes as hostile territory.

(c)

§ 112. Protection of Territory Pending Cession.

No right of sovereignty is transferred by virtue of a treaty of cession prior to the ratification of the agreement by both the grantor and the grantee. The question may arise, however, whether the prospective grantee, after having entered into negotiations for the cession, and having authorized the signature of an appropriate treaty which has been duly ratified by the grantor, acquires any right to protect the territory concerned against external aggression. The United States appears to have taken the stand that where the grantor has, by its act of ratification made known to the grantee, placed it within the power of the latter to accept the contract by taking appropriate steps, it may, within the period of time allotted for ratification, share with the grantor the right of protection.3 Such a claim is based on the

1 "That the right of a neutral to procure for itself by a bona fide transaction property of any sort from a belligerent power ought not to be frustrated by the chance that a rightful conquest thereof might thereby be precluded. A contrary doctrine would sacrifice the just interests of peace to the unreasonable pretensions of war, and the positive rights of one nation to the possible rights of another." Mr. Madison, Secy. of State, to Messrs. Livingston and Monroe, Plenipotentiaries to France, May 28, 1803, Am. State Pap., For. Rel., II, 562.

But see special message of President Tyler, May 15, 1844, respecting the nature of the right of the United States to protect Texas by virtue of a treaty which ultimately failed to receive the necessary approval of the Senate. Senate Doc. No. 341, 28 Cong. 1 Sess., 74-81, Moore, Dig., I, 274-275.

3 On November 18, 1903, a convention was signed in behalf of the United

PROPERTY PASSING BY CESSION

[§ 113

theory that it lies within the power of the contingent grantee to accept an unrevoked offer, and that at least before the expiration of a reasonable interval, outside interference tending to impair the value of the territory concerned may be justly thwarted.1

(d)

§ 113. Property Passing by Cession.

It is believed that on principle all public property of the grantor, and which by reason of its nature or use is to be fairly regarded as belonging within the territory ceded, should pass to the grantee. This would embrace property of whatsoever kind, whether movable or immovable, corporeal or incorporeal.

The matter is commonly adjusted by the terms of the treaty of cession. As these have oftentimes been of narrow scope, the omissions have given rise to controversy as to what the law of nations prescribed. Thus the treaties of the nineteenth century in which the United States was the grantee of territory, always acknowledged that various forms of public immovable property such as buildings, wharves, barracks, docks and other like structures, together with the public domain to which they were attached, were embraced in the cession.2 Doubt remained, however, as

States and Panama, providing for the grant to the former in perpetuity of the use, occupation and control of a zone of territory in Panama, in order to facilitate the construction of an interoceanic ship canal. The convention was ratified by Panama Dec. 2, 1903; ratification was advised by the Senate of the United States Feb. 23, 1904; and the treaty was ratified by the President Feb. 25, 1904. For. Rel. 1904, 543. On December 11, 1903, Mr. Hay, Secretary of State, in the course of a communication to General Reyes of Colombia, said: "Although the treaty has not yet become law by the action of the Senate, there are already inchoate rights and duties created by it which place the responsibility of preserving peace and order on the Isthmus in the hands of the Government of the United States and of Panama, even if such responsibilities were not imposed by the historical events of the last fifty years.' For. Rel. 1903, 279. See President Polk, Annual Message, Dec. 2, 1845, Senate Doc. No. 1, 29 Cong., 1 Sess., 5. Moore, Dig., I, 277; also other documents, id., I, 274-280.

1 It must be clear that under the circumstances stated in the text the grantor must be regarded as free to withhold its final approval of the agreement and incidentally to terminate all negotiations and abandon the transaction. When, however, the grantor remains indisposed to do so, and is ready at the appropriate time to exchange ratifications with the grantee when it shall have availed itself of the opportunity to complete the contract, there arises a situation when, with respect to other States, the position of the contingent or prospective grantee appears to be fortified.

2 See, for example, Art. VIII of the treaty of peace with Spain, Dec. 10, 1898, Malloy's Treaties, II, 1692. Cf. also Art. II of treaty with France for the cession of Louisiana, April 30, 1803, id., I, 509; Art. II of treaty with Spain respecting the cession of the Floridas, Feb. 22, 1819, id., II, 1652; Art. II of treaty with Russia for the cession of Alaska, March 30, 1867, id., 1522.

to the fate of heavy ordnance such as fixed cannon. Moreover there appears to have been no design to include generally public movable property.

As a matter of expediency, in the normal case of a cession the terms of which are not dictated by the exigencies of war between the parties to the transaction, it is useful that the agreement should have the broadest possible scope, embracing all forms of the public property of the grantor, subject to such reservations as are specified. The convention between the United States and Denmark providing for the cession of the Danish West Indies, and concluded August 4, 1916, is illustrative. It was there announced that

In all of the foregoing Articles the cession embraced documents or archives referring exclusively to the sovereignty over the territory ceded. See especially the provisions in this regard in Art. VIII of the treaty with Spain of Dec. 10, 1898.

The same Article further provided that neither relinquishment nor cession, as the case might be, could "in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be." Cf. Articles V and IX of the Russo-Japanese Treaty of Portsmouth, Aug. 23 (Sept. 5), 1905, For. Rel. 1905, 824.

Art. II of the treaty of April 30, 1803, with France, contained no specific provision with reference to cannon, which, according to the subsequent action of the contracting parties, were not deemed to pass to the grantee. Moore, Dig., I, 281, and documents there cited. After the cession of the Floridas to the United States, the grantee permitted the removal of cannon. Permission was given in consideration of the release by Spanish authorities of the duty of provisioning the troops whose transportation to Spain had been undertaken by the United States. See documents, id., 282-284, especially, Mr. Adams, Secy. of State, to Mr. Nelson, Minister to Spain, April 28, 1823, MS. Inst. U. S. Ministers, IX, 183, 227. The treaty of cession of Feb. 22, 1819, made no provision as to the matter. The inventories of property delivered to the United States in pursuance of Art. II of the treaty with Russia of March 30, 1867, providing for the cession of Alaska (which embraced all public buildings, fortifications and barracks), included certain forts with their armaments. Moore, Dig., I, 285, and documents cited. The Commissioners who negotiated the Spanish-American treaty of peace of Dec. 10, 1898, were unable to agree as to the disposition of certain public property of Spain in the Island of Cuba and adjacent Spanish Islands, consisting of artillery and fixed batteries and fortifications, as well as fixtures and other property thereto belonging. Id., 287. The treaty contained no provision as to the matter. With respect, however, to heavy guns and armaments in the Philippines it was agreed that "Stands of colors, uncaptured war vessels, small arms, guns of all calibres, with their carriages and accessories, powder, ammunition, livestock, and materials and supplies of all kinds, belonging to the land and naval forces of Spain in the Philippines and Guam, remain the property of Spain. Pieces of heavy ordnance, exclusive of field artillery, in the fortifications and coast defences, shall remain in their emplacements for the term of six months, to be reckoned from the exchange of ratifications of the treaty; and the United States may, in the meantime, purchase such material from Spain, if a satisfactory agreement between the two Governments on the subject shall be reached." Art. V, Malloy's Treaties, II, 1692. Cf. also, Moore, Dig., I, 288-289, and documents cited.