[455] See above, §§ [216] and [219].
Subjugation in Contradistinction to Occupation.
§ 237. Some writers[456] maintain that subjugation is only a special case of occupation, because, as they assert, through conquest the enemy territory becomes no State's land and the conqueror can acquire it by turning his military occupation into absolute occupation. Yet this opinion cannot be upheld, because military occupation, which is conquest, in no way makes enemy territory no State's land. Conquered enemy territory, although actually in possession and under the sway of the conqueror, remains legally under the sovereignty of the enemy until through annexation it comes under the sovereignty of the conqueror. Annexation turns the conquest into subjugation. It is the very annexation which uno actu makes the vanquished State cease to exist and brings the territory under the conqueror's sovereignty. Thus the subjugated territory has not for one moment been no State's land, but comes from the enemy's into the conqueror's sovereignty, although not through cession, but through annexation.
[456] Holtzendorff, II. p. 255; Heimburger, p. 128; Salomon, p. 24.
Justification of Subjugation as a Mode of Acquisition.
§ 238. As long as a Law of Nations has been in existence, the States as well as the vast majority of writers have recognised subjugation as a mode of acquiring territory. Its justification lies in the fact that war is a contention between States for the purpose of overpowering one another. States which go to war know beforehand that they risk more or less their very existence, and that it may be a necessity for the victor to annex the conquered enemy territory, be it in the interest of national unity or of safety against further attacks, or for other reasons. One must hope that the time will come when war will disappear entirely, but, as long as war exists, subjugation will also be recognised. If some writers[457] refuse to recognise subjugation at all as a mode of acquiring territory, they show a lack of insight into the historical development of States and nations.[458]
[457] Bonfils, No. 535; Fiore, II. No. 863, III. No. 1693, and Code N. See also Despagnet, Nos. 387-390.
[458] It should be mentioned that the Pan-American Congress at Washington, 1890, passed a resolution that conquest should hereafter not be a mode of acquisition of territory in America; see Moore, I. § 87.
Subjugation of the whole or of a part of Enemy Territory.
§ 239. Subjugation is as a rule a mode of acquiring the entire enemy territory. The actual process is regularly that the victor destroys the enemy military forces, takes possession of the enemy territory, and then annexes it, although the head and the Government of the extinguished State might have fled, might protest, and still keep up a claim. Thus after the war with Austria and her allies in 1866, Prussia subjugated the territories of the Duchy of Nassau, the Kingdom of Hanover, the Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main; and Great Britain subjugated in 1900 the territories of the Orange Free State and the South African Republic.