Occupation

Y. Arai-Takahashi – Preoccupied with occupation: critical examinations of the historical development ofthe law of occupationThe anomalous (from the classical international law point-of-view) distinctionbetween effective control and sovereign rights over territory which lies at theheart of the law of occupation, and the law’s enjoining of fundamentalconstitutional change by the military occupant, had no application to colonialwars or ‘police actions’ against less civilized – and therefore non-sovereign –peoples and territories. 146As a result, military occupation of non-European territories was sufficient forthe European powers to claim sovereign rights over those territories. 147 Further,together with discovery, conquest, and cession, the occupation of terra nullius wasone of the modalities that a ‘civilized’ nation was able to invoke to acquiresovereignty over the ‘non-Christian world’. 148 As an ancillary argument, one canadd that the temporary nature of the normative regime of occupation was unsuitablefor the colonial powers’ avowed intention to exert sovereignty over the colonizedterritories. 149It should be borne in mind that, by the time imperialism held sway inthe late nineteenth century, many rules relating to occupation were alreadyembodied in the Lieber Code (1863), the aborted Brussels Project (1874), and theOxford Manual (1880). Further, many ‘occupations’ of territories in the course ofimperial adventures took place after the First Hague Peace Conference (1899). 150Bhuta contends that ‘As a matter of principle and practice, belligerent occupationin its 19th-century manifestation was applied exclusively to land wars betweenEuropean sovereigns.’ 151 The conceptual chasm between the ‘civilized’ and‘uncivilized’ nations can be readily discerned. During the Franco-Prussian War(1870–1871), the Prussians arguably applied the customary law of occupation,leaving the French laws relatively intact. 152 Similarly, in the Spanish–American War146 N. Bhuta, above note 11, p. 729; Sharon Korman, The Right to Conquest: The Acquisition of Territory byForce in International Law and Practice, Oxford University Press, 1996, pp. 56, 61.147 Such sovereign rights were understood as encompassing the right to demand allegiance. Note that theOccupying Power, according to Article 45 of the 1907 Hague Regulations, is forbidden to demand the oathof allegiance from a population of foreign nationality under its occupation. See also N. Bhuta, above note11, p. 729.148 E. Benvenisti, above note 6, p. 647. See also Malcolm N. Shaw, ‘Territory in international law’, inNetherlands Yearbook of International Law, Vol. 13, 1982, pp. 61, 79 ff.149 M. N. Shaw, above note 148.150 Among numerous examples that occurred after 1874, note, for instance, the Russian occupation ofBulgaria (1877–1878) and the ‘transformative policy’ based on ‘un nouvel ordre de choses’ implementedthere; the British policy of asserting sovereignty over Egypt and Cyprus by means of occupation in 1914without being bound by the constraints of Article 43 of the Hague Regulations; and the US occupationsand subsequent annexation of Hawaii (1898), The Philippines (1898), and Puerto Rico (1898). SeeE. Benvenisti, above note 6, pp. 636, 641, 645. Furthermore, even Feilchenfeld, a prominent jurist on thelaw of occupation, was sceptical of the applicability of the law of occupation to the Japanese occupation ofChina after 1937 (failing to mention the Japanese occupation and colonization of Manchuria in 1931).With respect to the Italian invasion of Abyssinia, he considered that this was ‘a clear occupation’, butwithheld examination of the applicability of the law of occupation: E. H. Feilchenfeld, above note 68, p. 23,para. 94.151 N. Bhuta, above note 11, p. 729.152 J. M. Spaight, above note 19, pp. 323–330. However, there were a few cases of the suspension of the Frenchlaws: see F. F. Martens, above note 12, pp. 275–276. Furthermore, many of the Prussian measures, such asthe requirement to pay extensive reparations under Article 11 of the General Armistice of 28 January 1871,76