[433] See below, §§ [287c] and [287d].
[434] When, in 1909, Admiral Peary reached the North Pole and hoisted the flag of the United States the question was discussed whether the North Pole could be the object of occupation. The question must, I believe, be answered in the negative since there is no land on the Pole. See Scott in A.J. III. (1909), pp. 928-941, and Balch in A.J. IV. (1910), pp. 265-275.
Occupation how effected.
§ 222. Theory and practice agree nowadays upon the rule that occupation is effected through taking possession of and establishing an administration over the territory in the name of and for the acquiring State. Occupation thus effected is real occupation, and, in contradistinction to fictitious occupation, is named effective occupation. Possession and administration are the two essential facts that constitute an effective occupation.
(1) The territory must really be taken into possession by the occupying State. For this purpose it is necessary that the respective State should take the territory under its sway (corpus) with the intention to acquire sovereignty over it (animus). This can only be done by a settlement on the territory accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty. The necessary formal act is usually performed either by the publication of a proclamation or by the hoisting of a flag. But such formal act by itself constitutes fictitious occupation only, unless there is left on the territory a settlement which is able to keep up the authority of the flag. On the other hand, it is irrelevant whether or not some agreement is made with the natives by which they submit themselves to the sway of the occupying State. Any such agreement is usually neither understood nor appreciated by them, and even if the natives really do understand the meaning, such agreements have a moral value only.[435]
[435] If an agreement with natives were legally important, the respective territory would be acquired by cession, and not by occupation. But although it is nowadays quite usual to obtain a cession from a native chief, this is, nevertheless, not cession in the technical sense of the term in International Law; see above, § [214].
(2) After having, in the aforementioned way, taken possession of a territory, the possessor must establish some kind of administration thereon which shows that the territory is really governed by the new possessor. If within a reasonable time after the act of taking possession the possessor does not establish some responsible authority which exercises governing functions, there is then no effective occupation, since in fact no sovereignty of a State is exercised over the territory.
Inchoate Title of Discovery.
§ 223. In former times the two conditions of possession and administration which now make the occupation effective were not considered necessary for the acquisition of territory through occupation. In the age of the discoveries, States maintained that the fact of discovering a hitherto unknown territory was sufficient reason for considering it as acquired through occupation by the State in whose service the discoverer made his explorations. And although later on a real taking possession of the territory was considered necessary for its occupation, it was not until the eighteenth century that the writers on the Law of Nations postulated an effective occupation as necessary,[436] and it was not until the nineteenth century that the practice of the States accorded with this postulate. But although nowadays discovery does not constitute acquisition through occupation, it is nevertheless not without importance. It is agreed that discovery gives to the State in whose service it was made an inchoate title; it "acts as a temporary bar to occupation by another State"[437] within such a period as is reasonably sufficient for effectively occupying the discovered territory. If such period lapses without any attempt by the discovering State to turn its inchoate title into a real title of occupation, such inchoate title perishes, and any other State can now acquire the territory by means of an effective occupation.
[436] See Vattel, I. § 208.