and thoughtful publicists, give authority to the doctrine that effective international occupation is made up of two inseparable elements, annexation and settlement. By the formal act of annexation the annexing state notifies its intention of henceforth regarding the annexed territory as a part of its dominions; and by the patent fact of settlement it takes actual physical possession of the territory and retains a hold upon it. The formalities accompanying annexation are not prescribed by International Law. In modern times it is usual to hoist the national flag and read a proclamation setting forth the intention of the government to take the territory in question as its own; but any ceremony of clear import done on the spot in a public manner is sufficient. It must, however, be an undoubted act of the central government speaking on behalf of the state. If the proper authorities have sent out an official specially charged with the duty of making a particular acquisition, the act of annexation. performed by him is in the highest degree a state act, and therefore valid. But subordinate authorities have no such power, and their proceedings would be null and void unless they were ratified by the supreme government.2 Thus when in 1883 the Ministry of the British Colony of Queensland endeavored to annex on their own authority the greater part of the island of New Guinea, together with New Britain, New Ireland, and a large number of other islands off the north coast of Australia from longitude 141° to longitude 155°, the home government refused ratification of so sweeping an act. All it would consent to do was to add to the Empire a large portion of the southeast of New Guinea. This was done in 1884,3 and at the end of that year Germany annexed another portion, and established a protectorate over the islands of New Britain and New Ireland, which had been discovered by Dampier, a great British navigator, in 1699, and

1 e. g. Hertslet, Treaties, XVII., 670, 671.

2 Maine, International Law, 66–68.

8 Hertslet, Treaties, XVII., 678, 679.

nominally taken possession of for Great Britain in 1767 by Captain Cartaret of the Royal Navy. His act was, however, never ratified, and consequently it had no validity, though he bore the commission of King George III. A private person cannot perform even an inchoate annexation. Any ceremony he may go through is invalid from the beginning, and incapable of ratification. In order to annex, a state act is necessary, which may be direct, as when it is done by an officer commissioned specially for the purpose or armed with a general authority to annex under certain circumstances, or indirect, as when it is performed by subordinate authorities on their own initiative, but afterwards ratified by the central government.

Annexation alone is incapable of giving a good title. It is necessary for effective occupation that some hold on the country be taken and maintained. This is done by settlement; that is to say, the actual establishment of a civilized administration and civilized inhabitants upon the territory in question and their continuous presence therein. They may be established at one spot or many. Their posts may be civil, or military, or a mixture of the two. They may live upon the resources of the country or upon supplies sent from home. But they must be a permanent community. A temporary camp withdrawn after a time to the mother-country will not be sufficient to keep alive rights of sovereignty over the territory purporting to be occupied. There must be a real possession, as Vattel argued nearly a century and a half ago. Thus Great Britain has a settlement at Port Moresby in British New Guinea, and has established there a government and a central court, while Germany has placed her portion of New Guinea under an Imperial Commissioner, and has a few little stations along the coast. 3 In most cases annexation comes first and settlement follows, but this order is sometimes

1 London Times of Dec. 23, 1884; Annual Register for 1884, pp. 432-434. 2 Droit des Gens, I., § 207.

8 Statesman's Year Book, 1894, pp. 239 and 569.

2

reversed. A state occasionally annexes unoccupied territory because a little group of its subjects have gone there to trade, and a settlement has been formed which it deems desirable to place under its authority and protection. The mere fact of settlement, like the mere fact of annexation, will not give sovereign rights while it stands alone. It does not matter which of the two comes first, but they must coexist in order to make a valid occupation. Moreover, it is necessary, that the hold upon the territory should be maintained continuously, or at the least that any cessation of control should be temporary and intermittent. A territory once occupied can be abandoned, as the British abandoned the island of Santa Lucia in 1640, after their settlers had been massacred by the Caribs. And when such an abandonment has been shown by lapse of time, or in any other way, to be definite, another state is at liberty to treat the territory as again in the condition of a res nullius and occupy it, as the French occupied Santa Lucia in 1650. But the case of Delagoa Bay seems to prove, that a temporary lapse of control over territory will not be sufficient to invalidate a claim based upon the exercise for centuries of more or less continuous authority. The territory in question was claimed by England and Portugal, and the dispute between them was referred to the arbitration of Marshal MacMahon, then President of the French Republic. His decision in 1875 in favor of Portugal was based upon the ground we have indicated.2

§ 94.

It is admitted on all hands that the rights of sovereignty gained by occupation extend beyond the territory inhabited and used by the original settlers or commanded by the guns of their forts. What is needed for gained by their security and to afford room for the possible expansion of their settlements in the not too distant future

Extent of territory

occupation.

1 This was the case with the British Colony of Natal, the principal seaport of which, Durban, was founded by a little band of British settlers in 1824, nineteen years before the district was annexed by Great Britain.

2 Hall, International Law, § 34; Pitt Cobbett, Leading Cases in International Law, pp. 262–263.

should be added. But the reasonable doctrine of expansion must not be pushed to absurd lengths. A state which has established one or two posts on a small portion of the coast of a vast continent cannot found thereon a claim to exercise sovereign power over the whole of it, and exclude the colonies of other states, on the ground that after the lapse of many centuries her own settlers may overspread it, if all goes well with them. The questions connected with occupation which have proved in practice to be the most fruitful sources of controversy and war have been boundary disputes. States have been unable to agree as to how much territory was acquired by an act or series of acts of annexation and settlement, and the Roman Law from which the rules of occupancy were originally derived gave little help towards the solution of these difficulties. But a few principles and precepts, some positive and some negative, may be evolved from their history.

The whole of an island, unless it be a very large one, and even a group of very small islands, may be acquired by one act of annexation and one settlement. Thus, in 1885, Great Britain and Germany took possession of the Louisiade Archipelago and the Marshall Islands respectively. Both groups are situated off the eastern end of New Guinea, and were taken in consequence of the acquisitions made on that island. In each case one formal act of annexation was held to be sufficient for the entire group.1 The rules that apply to continents will apply to islands of vast extent like Australia, which is often called a continent. It belongs to the Empire of Great Britain, because a large number of British settlements fringe its coasts and run far up into the interior. But there can be no doubt that if other powers had colonized there a hundred years ago, when England's sole settlement was at Botany Bay, they would have been entitled to divide with her the vast territories that are now hers exclusively by a perfectly valid title.

A state cannot acquire a whole continent by establishing 1 Annual Register for 1884, pp. 433, 434.

a few settlements upon one of its coasts and going through the formal ceremony of annexation, nor can the colonization of one shore or a part of one shore of a continent give a title right across it to the opposite coast. These statements are mere negations; but, nevertheless, they enunciate a very im portant principle, and one which was not at first recognized by the colonizing nations of Europe. Spain and France vied with one another in the magnitude of the pretensions they based upon isolated acts of discovery, annexation and settlement, and some of the charters given by the kings of England to the early British colonists in America expressly granted territorial rights across the continent to the Pacific Ocean. But when these documents were referred to by the American Commissioners at the Conference held in London in 1826-1827 on the Oregon boundary question, the British negotiators declared that they had no international validity and could give to the grantees no more than an exclusive title against their fellow-subjects. This was undoubtedly a correct statement. Modern International Law lends no sanction to such preposterous claims.

Occupation of a considerable extent of coast gives a title up to the watershed of the rivers which enter the sea along the occupied line; but settlement at the mouth of a river does not give a title to all the territory drained by that river. Water is appurtenant to land, not land to water. If a coastline is effectively occupied, the rivers which fall into the sea throughout its extent, and the country drained by them, are held to belong in full sovereignty to the power whose settlements are dotted along the shore. This rule provides room for reasonable extension inland, but gives no countenance to the limitless pretensions of which we have just spoken. It is nowhere better set forth than in the words of Messrs. Monroe and Pinckney, the American negotiators at Madrid in the controversy of 1803-1805 about the boundaries of Louisiana. They declared that "When any European nation 1 Twiss, Law of Nations, I., § 126.