The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER XXVIII
WAR ON LAND (Continued)

THE LAW OF MILITARY OCCUPATION

387. Occupation Defined. -- "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established and can be exercised" (Art. 42).1

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1
H. R., 42. Cf. B. D., 1. Like blockade at sea, occupation "in order to be binding must be effective," i.e. real and actually capable of enforcement. A mere proclamation or "paper" occupation will not suffice, though a formal notification may be taken as evidence of occupation.

"War law distinguishes between the invasion and the occupation of a hostile territory. . . . Invasion ripens into occupation when the national troops have been completely ousted from the invaded territory and the enemy has acquired control over it. . . . War law recognizes in the occupying belligerent a right of government which comes very near to the right of sovereignty." Spaight, 321.

Belligerent or military occupation should also be distinguished from conquest. Cf. supra, No. 171. The rights of a military occupant, however absolute, are in no wise those of a sovereign. They are merely provisional and are based upon military necessity. The occupant may not exact an oath of allegiance and his status is not even that of a temporary or substituted sovereign. The theory of the "temporary allegiance of the inhabitants" as laid down by some authorities (e.g. by Birkhimer, in Military Government and Martial Law, 2d ed., 1904) and our courts, is, therefore, erroneous.

Prior to the middle of the eighteenth century there was no distinction, either in theory or practice, between a mere occupation and a completed conquest. It was first made by Vattel (liv. III, § 197), but the full consequences of this distinction were not drawn before the appearance of Heffter's (§ 131) remarkable work in 1844.

On the older theory and practice, see especially: Hall, § 154; Lawrence, § 176; 2 Oppenheim, § 166; and 2 Westlake, ( 1st ed.), 85. The special student of this subject will find much illustrative material in the works of Lameire (see Bibliography at the close of this chapter).

There has been much controversy over the question as to what constitutes real or effective military occupation. It is now agreed that mere invasion is not occupation, and that constructive or presumptive occupation is insufficient. At the Brussels Conference of 1874, the smaller Powers stood up for the rights of the native inhabitants of an occupied district; the larger Powers (particularly Germany) championed the rights of the military occupant. The result was a compromise which is mainly in favor of the view of the smaller Powers and which certainly condemns some of the methods employed by the Germans

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