International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
History
International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 166. If a belligerent succeeds in occupying a part or even the whole
of the enemy territory, he has realised a very important aim of warfare.
He can now not only make use of the resources of the enemy country for
military purposes, but can also keep it for the time being as a pledge
of his military success, and thereby impress upon the enemy the
necessity of submitting to terms of peace. And in regard to occupation,
International Law respecting warfare has progressed more than in any
other department. In former times enemy territory that was occupied by a
belligerent was in every point considered his State property, with which
and with the inhabitants therein he could do what he liked. He could
devastate the country with fire and sword, appropriate all public and
private property therein, kill the inhabitants, or take them away into
captivity, or make them take an oath of allegiance. He could, even
before the war was decided and his occupation was definitive, dispose of
the territory by ceding it to a third State, and an instance of this
happened during the Northern War (1700-1718), when in 1715 Denmark sold
the occupied Swedish territories of Bremen and Verden to Hanover. That
an occupant could force the inhabitants of the occupied territory to
serve in his own army and to fight against their legitimate sovereign,
was indubitable. Thus, during the Seven Years' War, Frederick II. of
Prussia repeatedly made forcible levies of thousands of recruits in
Saxony, which he had occupied. But during the second half of the
eighteenth century things gradually began to undergo a change. That the
distinction between mere temporary military occupation of territory, on
the one hand, and, on the other, real acquisition of territory through
conquest and subjugation, became more and more apparent, is shown by the
fact that Vattel (III. § 197) drew attention to it. However, it was not
till long after the Napoleonic wars in the nineteenth century that the
consequences of this distinction were carried to their full extent by
the theory and practice of International Law. So late as 1808, after the
Russian troops had militarily occupied Finland, which was at that time a
part of Sweden, Alexander I. of Russia made the inhabitants take an oath
of allegiance,[324] although it was only by article 4 of the Peace
Treaty of Frederikshamm[325] of September 17, 1809, that Sweden ceded
Finland to Russia. The first writer who drew all the consequences of the
distinction between mere military occupation and real acquisition of
territory was Heffter in his treatise _Das Europaeische Völkerrecht der
Gegenwart_ (§ 131), which made its appearance in 1844. And it is
certain that it took the whole of the nineteenth century to develop such
rules regarding occupation as are now universally recognised and in many
respects enacted by articles 42-56 of the Hague Regulations.
[Footnote 324: See Martens, _N.R._ I. p. 9.]
[Footnote 325: See Martens, _N.R._ I. p. 19.]
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