3. The Imperial Government of Japan will also permit for a period of ten years vessels under flags of the Powers having treaties with Japan to engage in the coasting trade between the open ports of Korea and between those ports and any open port of Japan.
4. The existing open ports of Korea, with the exemption of Masampo, will be continued as open ports, and in addition Shiwiju will be newly opened so that vessels, foreign as well as Japanese, will there be admitted and goods may be imported into and exported from these ports.
A real succession takes place, however, first, with regard to such international rights and duties of the extinct State as are locally connected with its land, rivers, main roads, railways, and the like. According to the principle res transit cum suo onere, treaties of the extinct State concerning boundary lines, repairing of main roads, navigation on rivers, and the like, remain valid, and all rights and duties arising from such treaties of the extinct State devolve on the absorbing State.
A real succession, secondly, takes place with regard to the fiscal property and the fiscal funds of the extinct State. They both accrue to the absorbing State ipso facto by the absorption of the extinct State.[113] But the debts[114] of the extinct State must, on the other hand, also be taken over by the absorbing State.[115] The private creditor of an extinct State certainly acquires no right[116] by International Law against the absorbing State, since the Law of Nations is a law between States only and exclusively. But if he is a foreigner, the right of protection due to his home State enables the latter to exercise pressure upon the absorbing State for the purpose of making it fulfil its international duty to take over the debts of the extinct State. Some jurists[117] go so far as to maintain that the succeeding State must take over the debts of the extinct State, even when they are higher than the value of the accrued fiscal property and fiscal funds. But I doubt whether in such cases the practice of the States would follow that opinion. On the other hand, a State which has subjugated another would be compelled[118] to take over even such obligations as have been incurred by the annexed State for the immediate purpose of the war which led to its subjugation.[119]
[113] This was recognised by the High Court of Justice in 1866 in the case of the United States v. Prioleau. See Scott, "Cases on International Law" (1902), p. 85.
[114] See Moore, I. § 97, and Appleton, "Des effets des annexions de territoires sur les dettes, &c." (1895).
[115] This is almost generally recognised by writers on International Law and the practice of the States. (See Huber, op. cit. pp. 156 and 282, note 449.) The Report of the Transvaal Concessions Commission (see British State Papers, South Africa, 1901, Cd. 623), although it declares (p. 7), that "it is clear that a State which has annexed another is not legally bound by any contracts made by the State which has ceased to exist," nevertheless agrees that "the modern usage of nations has tended in the acknowledgment of such contracts." It may, however, safely be maintained that not a usage, but a real rule of International Law, based on custom, is in existence with regard to this point. (See Hall, § 29, and Westlake in The Law Quarterly Review, XVII. (1901), pp. 392-401, XXXI. (1905), p. 335, and now Westlake, I. pp. 74-82.)
[116] This is the real portent of the judgment in the case of Cook v. Sprigg, L.R. (1899), A.C. 572, and in the case of the West Rand Central Gold Mining Co. v. The King (1905), 2 K.B. 391. In so far as the latter judgment denies the existence of a rule of International Law that compels a subjugator to pay the debts of the subjugated State, its arguments are in no wise decisive. An International Court would recognise such a rule.
[117] See Martens, I. § 67; Heffter, § 25; Huber, op. cit. p. 158.
[118] See the Report of the Transvaal Concession Commission, p. 9, which maintains the contrary. Westlake (I. p. 78) adopts the reasoning of this report, but his arguments are not decisive. The lending of money to a belligerent under ordinary mercantile conditions—see Barclay in The Law Quarterly Review, XXI. (1905), p. 307—is not prohibited by International Law, although the carriage of such funds in cash on neutral vessels to the enemy falls under the category of carriage of contraband, and can be punished by the belligerents. (See below, Vol. II. § [352].)