Hall, §§ 32-34—Westlake, I. pp. 96-111, 119-133—Lawrence, § 74—Phillimore, I. §§ 236-250—Twiss, I. §§ 118-126—Halleck, I. p. 154—Taylor, §§ 221-224—Walker, § 9—Wharton, I. § 2—Moore, I. §§ 80-81—Wheaton, §§ 165-174—Bluntschli, §§ 278-283—Hartmann, § 61—Heffter, § 70—Holtzendorff in Holtzendorff, II. pp. 255-266—Gareis, § 70—Liszt, § 10—Ullmann, §§ 93-96—Bonfils, Nos. 536-563—Despagnet, Nos. 329-399—Mérignhac, II. pp. 419-487—Pradier-Fodéré, II. Nos. 784-802—Rivier, I. pp. 188-197—Nys, II. pp. 47-108—Calvo, I. §§ 266-282—Fiore, II. Nos. 841-849, and Code, Nos. 1054-1067—Martens, I. § 90—Tartarin, "Traité de l'occupation" (1873)—Westlake, Chapters, pp. 155-187—Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 103-155—Salomon, "L'occupation des territoires sans maître" (1889)—Jèze, "Étude théorique et pratique sur l'occupation, &c." (1896)—Macdonell in the Journal of the Society of Comparative Legislation, New Series, I. (1899), pp. 276-286—Waultrin in R.G. XV. (1908), pp. 78, 185, 401.
Conception of Occupation.
§ 220. Occupation is the act of appropriation by a State through which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another State. Occupation as a mode of acquisition differs from subjugation[429] chiefly in so far as the conquered and afterwards annexed territory has hitherto belonged to another State. Again, occupation differs from cession in so far as through cession the acquiring State receives sovereignty over the respective territory from the former owner State. In contradistinction to cession, which is a derivative mode of acquisition, occupation is therefore an original mode. And it must be emphasised that occupation can only take place by and for a State;[430] it must be a State act, that is, it must be performed in the service of a State, or it must be acknowledged by a State after its performance.
Object of Occupation.
§ 221. Only such territory can be the object of occupation as is no State's land, whether entirely uninhabited, as e.g. an island, or inhabited by natives whose community is not to be considered as a State. Even civilised individuals may live and have private property on a territory without any union by them into a State proper which exercises sovereignty over such territory. And natives may live on a territory under a tribal organisation which need not be considered a State proper. But a part or the whole of the territory of any State, even although such State is entirely outside the Family of Nations, is not a possible object of occupation, and it can only be acquired through cession[431] or subjugation. On the other hand, a territory which belonged at one time to a State but has been afterwards abandoned, is a possible object for occupation on the part of another State.[432]
[432] See below, §§ [228] and [247].
Although the Open Sea is free and is, therefore, not the object of occupation, the subsoil[433] of the bed of the Open Sea may become the object of occupation through driving mines and piercing tunnels from the coast.[434]