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immense impeding power of nature, to perfect their respective titles of discovery by effective occupation. The English have attempted recently a sweeping annexation of much of West Antarctica (which they call Graham Land) and the adjoining groups of islands. By letters patent published in July, 1908, the groups of islands known as South Georgia, the South Orkneys, the South Shetlands, and the South Sandwich Islands, and the territory known as Graham Land [that is the continental land mass directly south of Chili and Argentina), situated in the South Atlantic Ocean to the south of the fiftieth parallel of south latitude and the eightieth [sic] degree of west longitude, are declared to be dependencies of the Falkland Islands and to be within the jurisdiction of the Governor of those islands. Commenting on this attempted act of annexation of many islands and a vast tract of land that have always been regarded as not belonging to any one, a writer in the Scottish Geographical Magazine ' says:
Of these islands South Georgia has for long been a dependency of the Falklands, having been annexed by Britain in 1775. But the South Shetlands were at one time, at least nominally, claimed by the Argentine Republic, and the same country, it must be remembered, makes use of the South Orkneys for the meteorological observatory which they took over from the Scotia and still maintain. The South Sandwich Group is still unexplored, though it is, or until recently undoubtedly was, visited by sealing schooners. This annexation of part of the Antarctic regions is the first attempt to lay serious claim to what was previously no-man's land. It no doubt arises from the fact that these waters are now visited by a number of whalers who are making shore stations, such as at Deception Island, and South Georgia. A whaling station is also to be established on New Island, a small island of the Falkland Group. A whaler has now to pay an annual license at the Falkland Islands to be allowed to fish in these waters and to make use of the harbors of the islands.
The English in their attempted wholesale annexation have included Deception Island close to the continental mass of West Antarctica. But Norwegian and Chilian whalers are actively using the same island and harbor as their base for the whale fishery. On December 24, 1908, Dr. Charcot, commander of two French antarctic expedi
6 The Scottish Geographical Magazine, August, 1909, pp. 435–436. 7 August, 1909.
tions, reports that about two hundred Norwegian citizens and some Chilians were using Deception Island as their base in their quest for whales. The active use by citizens of two nations, one a neighboring South American state, of this island that has been from time immemorial a part of no-man's land saves for the world at large the rights of all of the family of nations to participate in the bounties of nature around Deception Island. But even supposing that Great Britain had established a good possession, through occupation, to Deception Island, the possession of that island would not give her possession of the continental mass of land directly south of South America. In that land mass, known in part as Palmer Land, Graham Land, Danco Land, etc., and often designated as a whole as West Antarctica, no power has as yet established an effective occupation. Deception Island is first spoken of by the American sealer, Fanning, as being used by American sealers as a harbor of refuge, under the name of “ Yankee Harbor." 9 Even if Norway and Chili through the actual use of that island by their whalers did not preserve it for the family of nations as a common possession of all mankind, and so block the claims of any one Power to the possession of all of West Antarctica, yet for Great Britain to now assert that she has obtained by her proclamation of July, 1908, possession of West Antarctica,1o the continental land mass lying south of South America, would cause her to run counter to her own interpretation of the Law of Nations in respect to what effects possession, from her great Queen Elizabeth to one of her greatest living international jurisconsults, Westlake. So, too, the best opinion of the international juris-consults of other lands are against her.
All mankind have an equal right to things that have not yet fallen into the possession of anyone; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country
8 Ib., June, 1909, pp. 326–327.
9 Fanning: Voyages Round the World, etc., pp. 434-440; Edwin Swift Balch: Antarctica, p. 86 et seq.
10 The Scottish Geographical Magazine, August, 1909, p. 436. 11 Vattel: The Law of Nations, tr. by Chitty, p. 98.
uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession.
But it is questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal.
On this point Klüber says:
The occupation of an uninhabited and ungoverned part of the globe of the earth cannot therefore extend except over the territories of which effective possession, with the intention of taking the proprietary right, is constant.
Ortolan maintains : 13
Taking a nominal possession, a sign or some index of sovereignty does not suflice.
There must be added to the intention an effective possession, that is to say, that one must have the country at one's disposition and have done there work which constitutes an establishment.
The Swiss-German jurist; Bluntschli says:
278. The sovereignty of the territories that do not form a part of any State is acquired by the taking possession of these by a given State.
12 Klüber: Droit des Gens moderne de l'Europe: edited by M. A. Ott, p. 177.
13 Ortolan: Des Moyens d'acquérir le Domaine International, cited by Westlake, International Law, Vol. I, p. 110.
14 Bluntschli: Le Droit International Codifié, tr. by M. C. Lardy.
The simple intention to take possession, and even the symbolic or formal expression of this intention, as also as a taking a provisional possession, are insufficient.
281. No State has the right to incorporate with itself more territory, uninhabited or inhabited by barbarous tribes, than it can civilize or that it can organize politically. The sovereignty of the State exists only if it is exercised as a fact.
In a note to article 281, Bluntschli says:
The principle of occupation is based uniquely on the fact that men are, by nature and destination, called to live in a state of society and to organize into States. But when a power, as for example England in America and Australia, as Spain and Portugal in South America, as the Netherlands in the islands of the Pacific Ocean extends its pretended sovereignty over immense spaces, inhabited or occupied by savages, and can, in reality, neither cultivate nor govern these territories, that State does not march towards the aim of humanity; it retards on the contrary the realization of that object, by preventing other Nations from establishing themselves in those countries or new States to organize therein. There is not a true occupation except when it is real and durable; temporary or symbolic occupation can only create a factitious right. A State cloes not, therefore, violate International Law in seizing a country of which another State only took formal possession at an earlier period. There can easily result therefrom conflicts, but the question of right is settled beforehand, politics alone are at stake.
Concerning the validity of the title to a newly occupied land, the late distinguished Russian international publicist, Fedor de Martens, holds 15
In order that an occupation may be valid, as a means of acquiring an international property, the following conditions must be fulfilled :
1. From the subjective point of view, it is necessary that the occupation is accomplished (ait lieu) in the name and with the assent of a government. If it is effected by functionaries, representing a State, there is not any doubt as to the Nation that must be considered as proprietor of the occupied land. The occupation undertaken by private individuals must be sanctioned by the government to whose advantage it has been accomplished.
2. The occupation is effective if the State that has undertaken it is resolved to submit to its power the territory that it has discovered, occupied and annexed. This resolution (animus possidendi) manifests itself externally by the national flag, arms and other symbols, but especially, by the material occupation of the newly discovered land, the
15 de Martens: Traité de Droit International, tr. by Alfred Léo: Vol. I, p. 463.
introduction of an administration, the dispatch of troops, the construction of fortifications, etc.
3. One can occupy only lands that belong to no one and inhabited by barbarous tribes.
4. The limits of the occupation are determined by the material possibility to cause to be respected the authority of the government throughout the extent of the occupied country. There where the power of the State does not make itself felt, there is not an occupation. In order that it may be affective, it must receive its entire execution.
The German jurist, Dr. von Holtzendorff, says: 18
No State can appropriate more territory through an act of occupation than it can regularly govern in time of peace with its effective means on
Westlake quotes with approval the declaration on this subject adopted in 1888 at Lausanne by the Institute of International Law. That body of scholars versed in the Law of Nations recommended as an international declaration concerning the occupation of territory the following articles:
Art. 1. The occupation of a territory by right of sovereignty can not be recognized as effective unless it unites the following conditions:
1st. Seizing possession of a territory contained within given limits, in the name of a government.
2nd. Official notification of the seizure of possession.
Seizure of possession is accomplished by the establishment of a responsible local power, endowed with means sufficient to maintain order and insure the regular exercise of its authority within the limits of the occupied territory. These means can be borrowed from institutions existing in the occupied country.
The notification of seizure of possession is accomplished either by the publication according to the form that in each State is customary for the notification of official acts, or by the channels of diplomacy. It will contain the approximate determination of the limits of the occupied territory.
The Argentine jurist Calvo, says: 17
Even in the case of the occupation of countries still in a savage state, the right of States to incorporate a greater territory than they can civilize or administer is contested.
16 Holtzendorff: Handbuch des Völkerrechts: Vol. II, p. 263.
17 Calvo: Le Droit International Théorique et Pratique: cinquième ed., Vol. I, p. 409.