1911 Encyclopædia Britannica/Conquest

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1911 Encyclopædia Britannica, Volume 6

Conquest by Thomas Barclay

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21575571911 Encyclopædia Britannica, Volume 6 — ConquestThomas Barclay

CONQUEST, in international law, the subjugation of an enemy in war. International law recognizes a “right of conquest”;^[1] that is to say, neutral powers accept the de facto result of a war of conquest, or of a war which has led to conquest, without reference to any questions of justice or morality the war may involve. Neutral states, however, have often intervened to prevent the exercise of the right, on the ground that some interest of theirs was implicated. Two comparatively recent cases of this were the intervention of neutral European powers after the signing of the Russo-Turkish treaty of San Stefano in 1878, and that which took place after the Chino-Japanese War (1899). The theory of the balance of power, which long swayed the diplomacy of Europe, was also a restriction placed upon the right of conquest (see Balance of Power). Where, however, no neutral interest is involved, as in the case of the South African War (1899–1902), or where any neutral interest involved is not backed by sufficient physical or moral support among the powers to ensure success to any joint action among them, the conquering state deals with the conquered state in such way as it has the power to enforce, subject only to the possible moral reproval of public opinion in case of any ruthless abuse of the latter’s impotency.

Conquest may or may not be followed by annexation (q.v.) in part, as in the case of the Franco-German War when Germany exercised her overwhelming strength to force France into transferring to her a portion of her territory, or as in the case of the South African War, in which Great Britain annexed to her dominions the whole territory of the subjugated republics. Among European states any attempt to disturb the balance of the political distribution of Europe might still be held to involve the common interests of the other powers. The suppression of an independent European state and its incorporation into another state, as a termination to a war, in fact has only occurred in recent times in Italy and Germany, and these were cases in which that balance has rather been promoted than disturbed.

It is sometimes difficult to say when a conquest is complete, and the consequences of annexation may be rightfully enforced. A time necessarily comes, in the course of a war of conquest, when the conqueror may rightfully declare that the laws of peace shall be applicable from a certain moment, and that further resistance will not entitle the combatants to the treatment prescribed for regular combatants by the laws of war. To carry on warfare after the entire territory is in the hands of the enemy, after all means of government by the dispossessed authority are at an end, after all hope of recovery of its territorial sovereignty is absolutely gone, is obviously mere wanton bloodshed. A war is practically at an end when the position of the one belligerent renders the contest manifestly hopeless for the other belligerent.”^[2] From that moment it is the duty of the conqueror to organize the regular government of the conquered territory on a footing of peace. As soon as this regular government has been established, to take human life, destroy property or otherwise disturb public order entails the penalties of the criminal law. A government which is strong enough to maintain its authority, which is in possession of and is de facto administering country, is the government of that country, and, however just or interesting may be the cause of those who have been dispossessed, they are not entitled to treatment as belligerents. Thus in the South African War of 1899–1902 the British authorities, when the whole territory was occupied, manifestly beyond hope of recovery, might have ceased to treat the roving bands of armed men, who were still carrying on war, as belligerents. This, however, would probably have entailed reprisals; and when the Dutch government offered its good offices in January 1902, with a view to bringing the war to an end, the offer, though not accepted in the form of mediation, nevertheless led to negotiations which resulted in “terms of surrender” between delegates of the burghers “acting as the government” of the two republics (31st of May 1902), which gave finality to the conquest and made individual resistance thereafter unquestionably an act of rebellion. The position of the remains of a regular force roving over a conquered country, in fact, is one which it is difficult to deal with under principles of law, men who have been fighting for the retention of their national independence differing essentially from insurgents. (T. Ba)

↑ “The rights of conquest,” says Halleck (Int. Law, 3rd ed., ch. 33), explaining the nature of the right, “are derived from force alone. They begin with possession and end in the loss of possession. The possession is acquired by force, either from its actual exercise or from the intimidation it produces. There can be no antecedent claim or title from which any right of possession is derived, for if so it would not be a conquest. The assertion and enforcement of a right to possess a particular territory do not constitute a conquest of that territory. By the term conquest we understand the forcible acquisition of territory admitted to belong to the enemy. It expresses, not a right, but a fact, from which rights are derived. Until the fact of conquest occurs, there can be no rights of conquest. A title acquired by a conquest cannot, therefore, relate back to a period anterior to the conquest. That would involve a contradiction of terms. The title of the original owner prior to the conquest is, by the very nature of the case, admitted to be valid. His rights are therefore suspended by force alone. If that force be overcome, and the original owner resumes his possession, his rights revive and are deemed to have been uninterrupted. It, therefore, cannot be said that the original owner loses any of his rights of sovereignty, or that the conqueror acquires any rights whatever in the conquered territory anterior to actual conquest.”
↑ “There is subjugation,” says Rivier (Droit des gens, vol. ii. p. 436), “when a war is terminated by the complete defeat of one of the belligerents, so that all his territory is taken, the authority of his government suppressed, and he ceases in consequence to exist as a state.”
“The extinction of a state by conquest,” says Westlake (Int. Law, 1904, pt. i. p. 64), “will take place when the conquering power has declared its will to annex it, and has established its authority throughout the territory, any opposition still made being on the scale of brigandage rather than of war, and no corner remains in which the ordinary functions of government are carried on-in the name of the old state.”

[1] “The rights of conquest,” says Halleck (Int. Law, 3rd ed., ch. 33), explaining the nature of the right, “are derived from force alone. They begin with possession and end in the loss of possession. The possession is acquired by force, either from its actual exercise or from the intimidation it produces. There can be no antecedent claim or title from which any right of possession is derived, for if so it would not be a conquest. The assertion and enforcement of a right to possess a particular territory do not constitute a conquest of that territory. By the term conquest we understand the forcible acquisition of territory admitted to belong to the enemy. It expresses, not a right, but a fact, from which rights are derived. Until the fact of conquest occurs, there can be no rights of conquest. A title acquired by a conquest cannot, therefore, relate back to a period anterior to the conquest. That would involve a contradiction of terms. The title of the original owner prior to the conquest is, by the very nature of the case, admitted to be valid. His rights are therefore suspended by force alone. If that force be overcome, and the original owner resumes his possession, his rights revive and are deemed to have been uninterrupted. It, therefore, cannot be said that the original owner loses any of his rights of sovereignty, or that the conqueror acquires any rights whatever in the conquered territory anterior to actual conquest.”

[2] “There is subjugation,” says Rivier (Droit des gens, vol. ii. p. 436), “when a war is terminated by the complete defeat of one of the belligerents, so that all his territory is taken, the authority of his government suppressed, and he ceases in consequence to exist as a state.”
“The extinction of a state by conquest,” says Westlake (Int. Law, 1904, pt. i. p. 64), “will take place when the conquering power has declared its will to annex it, and has established its authority throughout the territory, any opposition still made being on the scale of brigandage rather than of war, and no corner remains in which the ordinary functions of government are carried on-in the name of the old state.”

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