what doubtful as to whether it succeeds to the whole of its private domain or property as well. The better opinion would seem to be that it only succeeds to that portion of the private property of the ceding or dismembered State which is destined for local use. Thus, State-owned railways, telegraph and telephone plants, etc., pass to the annexing or new State; 22 but State loans to corporations or individuals should not, as a rule, be confiscated. In the case of privately owned railroads, the principle of succession only applies to the public rights of regulation or control. In view of the increasing tendency toward State socialism, this subject deserves more attention than it has yet received.

There is a difference of opinion respecting the obligations of the new or annexing State to execute the contracts, concessions, or franchises, etc., granted by the ceding or dismembered State within the ceded territory or territorial borders of the colony or province which has achieved its independence. It would certainly seem that such contracts and concessions should, as a rule, be respected, and this has been the general practice of nations for at least a century; 23 but international practice is by no means uniform, and the rule is not without important exceptions.

See especially Despagnet, No. 99; 1 Piédelièvre, No. 161; and 1 P.-Fodéré,

No. 161.

* Such provisions were contained in the treaties of Campo Formio (1797), Paris (1814), Zürich (1859), Paris (1860), London (1864), Vienna (1864), Frankfort (1871), and Berlin (1878). The various treaties by which the United States acquired Louisiana, Florida, and Texas contained similar stipulations. But these provisions have been ignored in several recent cases of cession or conquest, viz. by France in Madagascar (1896), by the United States in the treaty of Paris (1898) with Spain, and by Great Britain in South Africa (1900). 1 Moore, § 98, pp. 385-390, and Gidel, Des effets de l'annexion sur les concessions (1904), ch. 11.

The United States of course acknowledged the validity of Spanish contracts and concessions in Cuba, Porto Rico, and the Philippines, which were of a purely local nature or in the exclusive interests of the inhabitants of these islands (1 Moore, p. 406); but it refused to admit a legal obligation to continue payments to the Manila Railway Co., which was a concession with a guarantee of 8 per cent granted by Spain partly in the imperial and partly in the local interest. See I Moore, § 98, pp. 395 ff., and Magoon, op. cit., pp. 177 ff. See also Magoon, pp. 529-531, for the opinion of this law officer that the United States was not legally bound to continue the payment of the Spanish subsidy to a telegraph company in the Philippine Islands.

The Transvaal Concessions Commission of 1901, which was appointed by the British Government to inquire into concessions presenting examples of mixed public and private rights granted by the South African Republic, declared: "It is clear that a State which has annexed another is not legally bound to any con

The general principle which should govern this important but much neglected subject has been correctly stated by a leading Italian authority: "The annexing Government succeeds to the rights and obligations resulting from contracts regularly stipulated by the ceding government in the relative public interest of the territory ceded." 24

To this rule there seem, however, to be several exceptions. The grant or concession must have been not merely regularly obtained or duly acquired, i.e. from the proper authority and with a proper observance of legal forms, but it must have been made in good faith.25 It must not be in violation of a treaty with the annexing or dismembered State nor contracted for the purpose of the war which results in annexation. The concession may also be canceled if the grantee has without lawful excuse failed to fulfill the essential conditions of the grant. The new government is, moreover, justified in canceling or modifying the concession in case it is injurious to the public interest or in conflict with the public order or the fundamental principles governing the legislation or policy of the annexing State. In the various classes of cases covered by the last sentence compensation or indemnity should, however, be made.26

tracts made by the State which has ceased to exist, and that no court of law has jurisdiction to enforce such contracts if the annexing State refuse to recognize them." In commenting upon these dicta, Westlake (I, pp. 81–82) observes: "The latter dictum is true, since courts of law are bound by the will of the sovereign power of the country, whether that will be just or unjust. The former dictum. . . is to be explained by the narrow meaning which the commissioners evidently attached to the term 'legal'. . ." The Commissioners add: "But the modern usage of nations has tended in the direction of the acknowledgment of such contracts." And, with certain reservations, England appears to have acted on this principle.

In the cases which were brought up for judicial determination, the British Courts declined to assert jurisdiction on the ground that annexation was an act of State, and they held that municipal tribunals lacked authority to enforce contractual obligations alleged to have been incurred by an adversary. The leading cases are those of Cook v. Spring (1899), A. C. 572; and the West Rand Central Gold Mining Co. v. The King (1905), 2 K. B. 498. See "Colonial Cases Relating to the Succession of States," in 3 Zeitschrift, 618-620, and Westlake, in 17 Law Quar. Rev. 392 ff.

24 1 Fiore, No. 356, p. 313.

25 See on this point the instructions of Secretary Root, in 1 Moore, pp. 392 ff., and Magoon, 595 ff.

26 For the exceptions, see Report of the Transvaal Concessions Commission in I Moore, § 98, pp. 411-414; and Gidel, Des effets de l'annexion sur les concessions (1904), chs. 7-10.

The same principles of course apply to a colony or province which has achieved its independence.27

BIBLIOGRAPHY

Succession and Extinction of States.

*

-

Appleton, Des effets de l'annexion sur les dettes de l'état demembré ou annexé (1895); Bluntschli, Arts. 46-61; Bry, Nos. 56-72; Bonfils, Nos. 214-233; Cabouat, Des annexions de territoires et de leurs principales conséquences (1881); 1 Calvo, $8 99-106; 1 Cobbett, Cases, 68-76; Decamps, in 15 R. D. I. P. (1908), 385 ff.;* Despagnet, Nos. 86-102; Field, Arts. 22-26; * 1 Fiore, Nos. 348366; Gabba, Questioni di diritto civile (1886); Gareis, § 16, pp. 59 ff.; *Gidel, Des effets de l'annexion sur les concessions (1904); Grotius, liv. II,

"The authorities are very much divided as to the meaning and propriety of the phrase "succession of States." Several (e.g. Gareis, § 16, pp. 59 ff., and Zorn, 32, 77) even deny that it ever takes place, and one (Liszt, § 23) only admits it in a few cases. Others maintain that it is a pure fiction or metaphor, whether useful or otherwise. But the majority accept the doctrine of succession either in pure or modified form.

The Roman idea of succession upon death as the continuation of the person of the deceased by the heir was introduced into the Law of Nations by Grotius who said: "It is undoubted law that the person of the heir, in respect to the continuation of public as well as private ownership, is to be conceived as the same with the person deceased" (lib. II, cap. 9, § 12). This view was adopted by Pufendorf and Vattel, but denied by the commentator Cocéji, who claimed that the Grotian doctrine of succession was a fiction based upon a principle of Roman private law which is inapplicable, in all its content, to International Public Law. On the views of Cocéji, see Gidel, op. cit., pp. 35 and 57 ff.

Among the publicists who hold more or less strictly to the Grotian doctrine of succession are: Despagnet, Nos. 90 ff.; Hall, 99; 2 Halleck, 495; 1 F. de Martens, $67, pp. 368 f.; and 1 Rivier, 70 ff.

I

The following authorities are among those who hold to the doctrine of succession in modified form: Bluntschli, Arts. 50, 54, and 55; 1 Calvo, §§ 99 ff.; 1 Fiore, No. 355; Heffter, § 25; 1 Oppenheim, §§ 80 ff.; 1 P.-Fodéré, Nos. 158 and 160.

Among the publicists who evidently consider the phrase "succession of States" a mere fiction or metaphor are Appleton, Gabba, and Gidel, who have produced valuable monographs on this important subject. But Huber, the most important of them all, does not hesitate to use the phrase "Staatensuccession" as the title of his remarkable work. It must be admitted that these monographs are, for the most part, highly abstract and theoretical, and that their conclusions are often at variance with international practice. Thus Appleton (p. 51) holds that the annexed or extinguished State still continues to exist in spite of its loss of sovereignty; and Gidel (chs. 3 and 4) bases his theory of "continuity" upon the right of the occupant. He claims that cession is a recognition rather than a source of rights. The views of Max Huber, although highly abstract, are more reasonable and are largely upon a study of international practice. He declares (p. 18) : —

based

"The notion of succession is a general one in law, and belongs exclusively neither to private nor to public law. Succession is a substitution plus continuation. The successor steps into the place of the predecessor and continues his rights and obligations; so far the succession of private and public law agree. But we now have to

*

*

cc. 9 and ro; Hall (5th ed.), 91-99; 1 Halleck (3d ed.), 90-92; Hartman, §§ 12-13; Heffter, §§ 24-25; Holtzendorff, in 2 Handbuch, 33-43; * Huber, Die Staatensuccession (1898); Larrivière, Des conséquences des transformations territoriales des États sur les traités anterieurs (1892); Lawrence (4th ed.), § 49; Liszt, § 23; 1 F. de Martens, §§ 66-69; *1 Moore, ch. 4, §§ 9299; 1 Nys, 399±401 ; 1 Piédelièvre, Nos. 134-200; 1 Phillimore, Pt. II, chs. 5-6; 1 Oppenheim, §§ 79-84; 1.P.-Fodéré, Nos. 156-163; * 1 Rivier, 65-75, 213 ff.; Selossé, Traité de l'annexion au territoire français et de son démembrement (1880); * Scott, Cases, 85-116; Snow, § 9; Taylor, §§ 163-168; Ullmann (2d ed.), §§ 31-34; 1 Westlake, 59-83; Wheaton, §§ 28-32; I Wharton, § 5; Woolsey, § 38.

distinguish between those kinds of succession. A civil successor who steps into the place of his predecessor steps into his rights and obligations as though he were himself the predecessor. That is the universal succession of private law in the human sense, at least according to the prevailing doctrine. But the successor of international law steps into the rights and obligations of his predecessor as though they were his own." Cited and translated by Westlake, I, p. 69.

For an excellent review of the authorities, see Gidel, Des effets de l'annexion sur les concessions (1904), ch. 2.

CHAPTER IX

THE ESSENTIAL RIGHTS AND DUTIES OF STATES

131. Their Nature. - Until recently, authorities were generally agreed that there exist certain essential or fundamental rights and duties of States which underly the positive rules and customs of International Law. These rights (to which are attached corresponding duties) are usually described as primary, inherent, absolute, fundamental, essential, permanent, etc. They were formerly identified with natural rights and formed part of the so-called law of nature. Some publicists now regard them as moral rather than legal principles, and a few even deny them altogether. But these rights have, in fact, a broader and deeper significance than the ordinary positive rules of the Law of Nations of which they are in large measure the ultimate basis or source, and have even greater obligatory force. Though far from absolute and not inherently unchangeable, they are in the nature of controlling or fundamental principles based upon conditions essential to State existence and international life in our time.

1 For example, Cavaglieri, in 18 R. D. I. P. (1911), 261; *Heilborn, System, 279– 306; Jellinek, System, 302 ff.; 1 Oppenheim, § 112; and 1 Westlake, 293 ff.

Jellinek considers the fundamental rights of States tautological, and Heilborn's main argument appears to be that they lack sanction or are included under other categories. But the lack of sanction is not greater than in the case of many of the more positive rules of International Law. The fact that authorities are not fully agreed on the content of the fundamental rights and duties of States is no proof of their non-existence. Oppenheim says he agrees with the publicists cited above, but he admits these rights and duties under a different name.

The most suggestive treatment of this question is by Pillet, in 5 R. D. I. P. (1898), 66 ff., 236 ff.; but many of his suggestions are too tentative for acceptance in a textbook.

Some of the older publicists adopted the Thomasian classification of perfect and imperfect rights and duties. This division is now generally abandoned. See I Westlake (153, 285, 288) for a modern instance of adherence to the doctrine of imperfect rights.