[399] See above, § [101]. The case of Sir James Brooke, who acquired in 1841 Sarawak, in North Borneo, and established an independent State there, of which he became the Sovereign, may also be cited. Sarawak is under English protectorate, but the successor of Sir James Brooke is still recognised as Sovereign.
[400] The matter is treated with great lucidity by Heimburger, pp. 44-77, who defends the opinion represented in the text against Sir Travers Twiss (I. Preface, p. x.; also in R.I. XV. p. 547, and XVI. p. 237) and other writers. See also Ullmann, § 93.
Former Doctrine concerning Acquisition of Territory.
§ 210. No unanimity exists among writers on the Law of Nations with regard to the modes of acquiring territory on the part of the members of the Family of Nations. The topic owes its controversial character to the fact that the conception of State territory has undergone a great change since the appearance of the science of the Law of Nations. When Grotius created that science, State territory used to be still, as in the Middle Ages, more or less identified with the private property of the monarch of the State. Grotius and his followers applied, therefore, the rules of Roman Law concerning the acquisition of private property to the acquisition of territory by States.[401] As nowadays, as far as International Law is concerned, every analogy to private property has disappeared from the conception of State territory, the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory. It is obvious that under these circumstances the rules of Roman Law concerning the acquisition of private property can no longer be applied. Yet the fact that they have been applied in the past has left traces which can hardly be obliterated; and they need not be obliterated, since they contain a good deal of truth in agreement with the actual facts. But the different modes of acquiring territory must be taken from the real practice of the States, and not from Roman Law, although the latter's terminology and common-sense basis may be made use of.
[401] See above, § [168]. The distinction between imperium and dominium in Seneca's dictum that "omnia rex imperio possidet, singuli dominio" was well known, and Grotius, II. c. 3, § 4, quotes it, but the consequences thereof were nevertheless not deduced. (See Westlake, Chapters, pp. 129-133, and Westlake, I. pp. 84-88.)
What Modes of Acquisition of Territory there are.
§ 211. States as living organisms grow and decrease in territory. If the historical facts are taken into consideration, different reasons may be found to account for the exercise of sovereignty by a State over the different sections of its territory. One section may have been ceded by another State, another section may have come into the possession of the owner in consequence of accretion, a third through subjugation, a fourth through occupation of no State's land. As regards a fifth section, a State may say that it has exercised its sovereignty over the same for so long a period that the fact of having had it in undisturbed possession is a sufficient title of ownership. Accordingly, five modes of acquiring territory may be distinguished, namely: cession, occupation, accretion, subjugation, and prescription. Most writers recognise these five modes. Some, however, do not recognise prescription; some assert that accretion creates nothing else than a modification of the territory of a State; and some do not recognise subjugation at all, or declare it to be only a special case of occupation. It is for these reasons that some writers recognise only two or three[402] modes of acquiring territory. Be that as it may, all modes, besides the five mentioned, enumerated by some writers, are in fact not special modes, but only special cases of cession.[403] And whatever may be the value of the opinions of publicists, so much is certain that the practice of the States recognises cession, occupation, accretion, subjugation, and prescription as distinct modes of acquiring territory.
[402] Thus Gareis (§ 70) recognises cession and occupation only, whereas Heimburger (pp. 106-110) and Holtzendorff (II. p. 254) recognise cession, occupation, and accretion only.
[403] See below, § [216]. Such alleged special modes are sale, exchange, gift, marriage contract, testamentary disposition, and the like.
Original and derivative Modes of Acquisition.