RE: The disposition of territory acquired under the principle of conquest .....?

Question

I read somewhere that a scholar in military studies said that "The disposition of territory acquired under the principle of conquest must be conducted according the laws of war." I think that this is a very important quote, and I would like to get more information about the details involved.

In the simplest terms, apparently, the meaning of this sentence is that territory acquired by conquest will be under "military occupation" which at some point will be followed by a "peace settlement." If there is a cession of territory, there must be a formal "peace treaty."

It is pretty clear that this concept rules out "conquest followed by outright annexation" of territory.

So, I would like to get more information about this entire matter, including authoritative references, additional information, additional points of view, explanations, etc. I believe that this falls in the realm of military studies.

Answer 1

CUSTOMARY NORM: "The disposition of territory acquired under the principle of conquest must be conducted according to the laws of war."

In layman's terms, this will mean military occupation followed by a peace settlement. If there is a territorial cession, there must be a formal treaty.

As the questioner has pointed out, this is an important CUSTOMARY NORM, based on the rules and usages of war, which can be fully supported by the following references --

=== Reference: Dorr v. U S, 195 U.S. 138 (1904): Chief Justice Marshall, . . . . . delivering the opinion of the court in the leading case upon the subject (American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542, 7 L. ed. 242, 255), says:
'The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty.

'The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose.'

=== Reference: Downes v. Bidwell 182 U.S. 244 (1901): The power to acquire territory, other than the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty.

=== Reference: Dow v. Johnson, 100 U.S. 158 (1879): . . . The question here is, What is the law which governs an army invading an enemy's country? It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law,-- the law of war, -- and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation on liberty.

=== Reference: Fleming v. Page, 50 U.S. 603 (1850): The jurisdiction of the conqueror is complete. He may change the form of government and the laws at his pleasure, and may exercise every attribute of sovereignty. The conquered territory becomes a part of the domain of the conqueror, subject to the right of the nation to which it belonged to recapture it if they can. By reason of this right to recapture, the title of the conqueror is not perfect until confirmed by treaty of peace. But this imperfection in his title is, practically speaking, important only in case of alienation made by the conqueror before treaty. If he sells, he sells subject to the right of recapture.

But although, for purposes of sale, the title of the conqueror is imperfect before cession, for purposes of government and jurisdiction his title is perfect before cession. As long as he retains possession he is sovereign; and not the less sovereign because his sovereignty may not endure for ever. [50 U.S. 603, 608] Grotius (Ch. 6, book 3, 4), speaking of the right to things taken in war, says that land is reputed lost which is so secured by fortifications that without their being forced it cannot be repossessed by the first owner. And in Ch. 8, book 3, treating of empire over the conquered, he shows that sovereignty may be acquired by conquest.

Wolffius, in his treatise De Jure Gentium (Ch. 7, De Jure Gentium in Bello, 863), states the doctrine very strongly.

Puffendorf, book 8, ch. 11, title 'How Subjection ceases'; same author, Treatise on the Duties of the Man and the Citizen, book 2, ch. 10 , 2; Bynkershoek on the Law of War, Duponceau's translation, 124; 2 Burlamaqui, 74; Vattel, book 3, ch. 13, and book 1, ch. 17; Martens on the Law of Nations, book 8, ch. 3, 8; Wheaton, Elements of International Law, p. 440; 7 Co. 17, b; Dyer, 224, a, pl. 29; 2 P. Wms. 75; Cowper, 204; Dodson, 450; 2 Hagg. Consistory Rep. 371; 9 Cranch, 191; 7 Peters, 86; 2 Gall. 485; 4 Wheat. 246; 1 Opinions of Attorney-General, 119.

These authorities seem to establish conclusively, --
1st. That, by conquest and firm military occupation of a portion of an enemy's country, the sovereignty of the nation to which the conquered territory belongs is subverted, and the sovereignty of the conqueror is substituted in its place.

2d. That although this sovereignty, until cession by treaty, is subject to be ousted by the enemy, and therefore does not give an indefeasible title for purposes of alienation, yet while it exists it is supreme, and confers jurisdiction without limit over the conquered territory, and the right to allegiance in return for protection.

It follows that Tampico, while in the military possession of our forces, passed from the sovereignty of Mexico to the sovereignty of the United States, and was subject in the fullest manner to the jurisdiction of the United States, and therefore could in no correct sense be said to be foreign to the United States.

It cannot be denied that these principles, established by the common consent of the civilized world, must govern the title to conquests made by the United States. As one of the family of nations, they are bound by the law of nations, and the nature and effect of their acquisitions by conquest must be defined and regulated by that law.

That the United States may acquire territory by conquest results from their power to make war. They cannot in this respect be less competent than all the other nations of the world. The right to acquire by conquest is an inseparable incident to the right to maintain war. [50 U.S. 603, 609] Mr. Justice Story, in the third volume of his Commentaries on the Constitution, says, at p. 160: -- 'The Constitution confers on the government of the Union the power of making war and of making treaties; and it seems consequently to possess the power of acquiring territory either by conquest or treaty.'

And at p. 193: -- 'As the general government possesses the right to acquire territory, either by conquest or treaty, it would seem to follow as an inevitable consequence that it possesses the power to govern what it has so acquired.'

Chief Justice Marshall, in the American Ins. Co. v. Canter, 1 Peters, 542, treats it as clear. 'The Constitution,' says he, 'confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory either by conquest or treaty.'

The messages of the President to Congress during the war, and the instructions from the heads of departments, contain authoritative declarations as to the right of the United States to acquire foreign territory by conquest, and as to the effect of such conquest upon the sovereignty of the conquered territory, in accordance with the principles above stated. Thus, the President, in his message of December, 1846, says: -- 'By the law of nations a conquered territory is subject to be governed by the conqueror during his military possession, and until there is either a treaty of peace or he shall voluntarily withdraw from it. The old civil government being necessarily superseded, it is the right and duty of the conqueror to secure his conquest, and to provide for the maintenance of civil order and the rights of the inhabitants. This right has been exercised and this duty performed by our military and naval commanders, by the establishment of temporary governments in some of the conquered provinces in Mexico, assimilating them as far as practicable to the free institutions of our own country.'

=== Reference: Worcester v. State of Ga., 31 U.S. 515 (1832): But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend.

=== Also see the following references in Military Government and Martial Law, by William E. Birkhimer, third edition, revised (1914), Kansas City, Missouri, Franklin Hudson Publishing Co.

* Reference: Birkhimer, p. 45
In an opinion dated September 8, 1900, the Attorney-General stated that the rights of the United States authorities in Cuba, notwithstanding the pacific aspect of affairs, were based wholly on the laws of war.

* Reference: Birkhimer, p. 124
If the territory be not completely conquered, its people subjugated, the laws of war regard its occupation, although de facto accomplished, yet as temporary only until its fate is determined by the treaty of peace.

* Reference: Birkhimer, p. 174
The powers of commanders enforcing military government are derived from and are limited by the laws of war.

Answer 2

"To the victor goes the spoils", but yes, in the modern world, there is always treaties, good or bad, it was a bad one after the truce or armistice ending WW1 that so humiliated Germany it ensured a WW2. In reality one tribe challenged and usually assimiliated another in North America before European invasion, Spain was just another part of Europe, same as England or France or the Dutch, and what they took by force from teh natives they later lost in wars, signed treaties, and even sold to the USA, and then we bought Alaska from Russia. While you have to give the Dutch credit for "purchasing" Manhattan for $20 worth of trade goods, the unspoken fact is they got ripped off as that tribe didn't have a claim to it. This lead to warfare and the establishment of a bounty, by the Dutch, on native scalps. It became much more expedient to claim taking foreign countries into "protectorship" as Russia created the USSR or China has been slowly swallowing up Asia, with eyes currently on Taiwan, Nepal and elsewhere. It does away with the need of "treaties" at all. The Isreal situation is a mess, with hatreds and distrust and fundamental differences so deep people kill each other over rocks and desert, and one religion insists on holding a site holy to the other simply to prove superiority, and Isreal holding land like Golan Heights because it is always used to attack them from, and no one seems to suggest the UN occupy these places and keep them open and safe for all peoples of all nations and faiths. If there can be no peace in the Middle East, the cradle of human race and modern civilization, there never will be anywhere.

Answer 3

The principle of conquest was used to legitimate European gains overseas. However, I believe that it has been repudiated during most if not all of the 20th century by most of Europe and the United States. It remains on the books because to remove it also removes the legitimacy of claims made prior to that time. Territorial cession has (from my understanding) been applied to areas not "conquered" but still given to the attacking government whether compensated or not, such as the Gadsden Purchase. I'm not an expert in military law, but from my readings of history that is how it has applied in the past.

Answer 4

In early europe, trade, thinking and terriotory were controlled by the church. Through the ages a code developed for the relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe. In the Middle Ages, it had been considered the obligation of the Church to mediate in international disputes. During the Council of Constance (1414) Pawel Wlodkowic, rector of Jagiellonian University (Kraków, Poland), theologian, lawyer and diplomat, presented the theory that all, including pagan, nations have right to self-govern and to live in peace and possess their land.

The rise in Protestism, about 1517 on - there was developed an international law, which gave a king the right to conquer - right of conquest -

The statesmen of the time believed no nation could escape war, so they prepared for it. King Henry IV's Chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established.

So unable to attack eact other, european nation's, always at a state of readyness, turned on conquring the non christian world. this state of affairs - which lasted up to the end of the Napolonic Wars - was replaced by a peace treaty system, policed by Britian, who had the largest force at the time.

Of course this all fell apart when Russia wanted to expand, and stopped by Britian, and Japan, started a little war (1913) in the Balkans, which led to world war 1, the leauge of nations, which too failed, and world war 2, and finally the united nations.