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war.

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Belligerent occupation begins when an invaded territory is effectively held by a military force."1 "The occupation applies only to the territory where such authority is established and in a position to assert itself." "

2

Therefore the sphere of occupation might change from day to day.

Hall says of the effect of military occupation:

"When an army enters a hostile country, its advance by ousting the forces of the owner puts the invader into possession of territory which he is justified in seizing under his general right to appropriate the property of his enemy. But he often has no intention of so appropriating it, and even when the intention exists, there is generally a period during which, owing to insecurity of possession, the act of appropriation can not be looked upon as complete. In such case the invader is obviously a person who temporarily deprives an acknowledged owner of the enjoyment of his property; and logically he ought to be regarded either as putting the country which he has seized under a kind of sequestration, or, in stricter accordance with the facts as being an enemy who in the exercise of violence has acquired a local position which gives rise to special necessities of war, and which therefore may be the foundation of special belligerent right. Recent writers adopt the view that the acts which are permitted to a belligerent in occupied territory are merely incidents of hostilities; that the authority which he exercises is a form of the stress which he puts upon his enemy; that the rights of the sovereign remain intact (p. 487). * * * If occupation is merely a phase in military operations, and implies no change in the legal position of the invader with respect to the occupied territory and its inhabitants, the rights which he possesses over them are those which in the special circumstances represent his general right to do whatever acts are necessary for the prosecution of his war; in other words, he has the right of exercising such control, and such control only, within

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1 Wilson & Tucker, Int. Law, p. 251.

2 Hague Convention, War on Land, Article XLII.

MILITARY OCCUPATION AND CONQUEST.

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the occupied territory as is required for his safety and the success of his operations."1

Military occupation differs from conquest.

"Conquest in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force.

"Military occupation may pass into conquest (1) by actual occupation for a long period with intention on the part of the occupier to continue the possession for an indefinite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as complete. Each state must judge for itself as to the reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, to which the inhabitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the title by conquest."

From what has been said there is an agreement sufficient to be called general that the city, bay, and harbor of Manila was in a state of hostile occupancy by the United States on August 20, 1898; that such occupancy does not work a change of nationality in the territory so occupied, and that the change in nationality occurs only when the conclusion of the treaty of peace or long uninterrupted holding after conquest shows no intent on the part of the original holders to maintain their title to the occupied territory.

It is certain that the uninterrupted holding by the United States had not been sufficiently long, sufficiently complete and uncontested (as the city had only been taken a week before) to warrant any claim of title in the United States. It was certain that no agreement conferring this territory upon the United States had been made. It is certain that the United States had made no claim to this territory other than that of hostile occupancy.

1 Int. Law, 4th ed., p. 481. See p. 488, sec. 155.
* Wilson & Tucker, p. 99.

Thus as Manila had not been incorporated into the United States on August 20, 1898, it could not be considered "a port of her own country." Again it might be an offense to Spain to give expression to such an opinion pending negotiations the issue of which could not be foretold. There was no way by which it could be presumed by the British authorities that this might ultimately be incorporated by the United States rather than be restored to Spain, be made an independent state or be disposed of otherwise.

The United States has also led the way in giving an interpretation to the rule as is shown in the proclamation of President Grant, October 8, 1870, when it allowed "only sufficient coal to take the vessel to the nearest European port of her own country," regardless of the fact that there were island ports of one of the belligerents nearer. This by implication eliminates ports which are in doubt or are liable to involve hardship if made the points to which vessels must of necessity set out. Of course a neutral may make further regulations for safeguarding herself against abuses of coaling privileges if the vessel, unless the ordinarily accepted contingencies of accident, weather, or other stress prevent, does not sail to the port for which it sets out.

Grounds of the commander's protest.-The commander of the war ship should protest against the decision of the authorities at Hongkong that Manila was on August 20, 1898, "the nearest port of her own country" in the intent of the neutrality proclamation.

He should protest on the ground that:

(1) Manila is simply in a state of hostile occupancy. (2) That hostile occupancy does not transfer nationality in people or place.

(3) That it is only by the terms of peace or long occupancy that Manila could become "a port of the home country."

(4) That the condition of Manila was itself uncertain while so small an area was occupied.

(5) That to affirm that Manila was a United States port prejudged the Spanish rights which might revert by postliminy.

SOVEREIGNTY OF "HOME PORT."

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(6) That the request for coal for Honolulu at least was a reasonable one, and that a statement that the vessel would not journey to Manila would be made if there were any question still remaining.

What constitutes a "port of a home country ?”—The question as to what constitutes, as it is called in the British and other neutralization proclamations, "port of her own country" is in part already answered. It is a port in which the political authority of the state would have full vigor. The element "own country," in this international sense, implies within the sovereign authority, which manifestly Manila can not be, for it is merely military authority by power of arms, without political competence, that the United States is exercising on August 20, 1898. Further, a "port" in plies, when applied to a home country, a place in which full rights and privileges are secured without effort upon the part of the domestic vessel but as a right requiring no defense. Manila is not such a harbor.

Further, it may be said that "port of her own country" can not be construed to mean merely a point within its jurisdiction, unless such point be a reasonably suitable port considering the nature of the vessel. A harbor which would be of such a character as to forbid entrance or make it exceedingly dangerous in time of peace would not be a reasonable harbor, nor would one for the time being in the possession of the enemy. While the neutral is bound to exercise "due diligence," the neutral is not bound to carry on war or sacrifice itself or its merchants unduly for either of the belligerents. As Wharton has said:"

"To require a neutral to shut up its ports so as to exclude from coaling all belligerents would expose a nation with ports as numerous as those of the United States to an expense as great as would be imposed by actual belligerency. It is on the belligerent who goes to war, not on the neutral, who desires to keep out of it, that should be thrown expenses so enormous and constitutional strains so severe as those thus required."

'Criminal Law, 9th ed., sec. 1908.

A "port of the home country" would, then, be a reasonably suitable harbor at a point which is within the political sovereignty of the state to which the vessel belongs.

Conclusion.

In conclusion, then, the commander has a right to protest against the action of the authorities. at Hongkong, and to claim that Manila was not, on August 20, 1898, a port of the United States, but was nothing more than a temporary military base.

The term "port of a home country" must be given an interpretation which will permit a reasonably suitable harbor within the full political sovereignty of the flag of the vessel.

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