Legal Relations Between an Occupying Power and the Inhabitants 33 Law Quarterly Review 1917

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33 L. Q. Rev. 363 (1917)
Legal Relations Between an Occupying Power and the Inhabitants

handle is hein.journals/lqr33 and id is 371 raw text is: THE LEGAL RELATIONS BETWEEN AN OCCUPYING
POWER AND THE INHABITANTS.
IN my paper on War Treason published on pp. a66-86 of this volume
of the L. Q. R. I discussed and rejected the doctrine which asserts
that the inhabitants of militarily occupied country owe a temporary
allegiance to the occupant. It is advisable to inquire now into the
nature of the relations between an occupying power and the inhabi-
tants. It cannot be said at all that the nature of these relations is
everywhere clearly recognized and well defined. The literature on the
subject is to a great extent obscure, and the echo of the former rule
that the occupant at once becomes the sovereign of the occupied
territory resounds more or less distinctly in the writings of many
publicists, although it is commonly rejected in the crude expression
given to it by Twiss (vol. ii, з 64). When Bluntschli (з 544) says
that, while the dominion (Staatsgewalt) of the legitimate government
is displaced by the military power of the occupant, the inhabitants
must render laatliene Gelor&am to the occupying power; when
Despagmet (з 570) says that the de facto substitution -of the sove-
reignty of the occupant for the sovereignty of the legitimate
government subjects the inhabitants to certain obligations to the
occupying power; and when other authors use similar language,
the suspicion is roused that they still labour under a remote influence
of the nowadays untenable theory that the occupant is for the time
being the sovereign of the occupied territory. Indeed, a number of
writers, such as Hall (зз 154 and 155 of the 4th edition) and Calvo
(з 2166 of the 5th edition), have in every point freed themselves
from the influence of the theory of substituted sovereignty, yet they
have not sufficiently I elucidated. the nature of the relations between
the occupying power and the inhabitants. On the other hand, there
is a general agreement on three points. Firstly, every one agrees
that through military occupation the authority over the territory
1 I must reproach myself in this matter, if there be reproach at all. Although
throughout my treatise on international law where I treat of occupation, I, of
course, avoid calling the authority of the occupant 'sovereignty '-I always
deliberately speak of his 'sway' to which inhabitants owe obedience, and assert
that this sway is merely military authority,-I have nowhere pointed out, as
I ought to have, that the obedience owed to the occupant is imposed upon the
inhabitants by his martial law only, and neither by international nor by their
own municipal law.
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