This essay argues that the law governing belligerent occupation has been undermined on two fronts it is not accepted by belligerent occupiers who consider themselves the legitimate powers of a given territory and it has also not been able to prevent or to reverse the so called transformative occupation However state practice of occupying powers does not support the view that transformative activities are widespread and that the conservationist principle serves the critical function of limiting occupiers unilateral appropriation of the subordinate state's legislative powers The second half of the nineteenth century saw the birth of the contemporary law of occupation i e conservationist occupation designed to regulate the conduct of occupying powers The debate on the law of occupation began with Brussels Declaration 1874 It was first adopted by the 1899 Hague Peace Conference and subsequently by the second peace conference of 1907 At the heart of the conservationist principle is the belief that any alteration to the existing order in occupied territory should be minimum Robert Adams illustrates this point by arguing by the prohibition of annexation rules regarding the structure of the occupying power and the rules in regards to the maintenance of existing legal instruments in the occupied territory For example Article 43 of the
Hague regulation provides that the occupying power must respect the laws in force unless absolutely prevented from doing so Therefore the occupying power had an obligation not to disrupt the existing structure of life in occupied territory The first challenge that emerged in the law of occupation had to do with the interpretation of Article 43 of the Hague Regulation during Belgium s occupation by Germany in World War I WWI The challenge arose because of two opposing schools of thoughts on the interpretation of the provision firstly the measures adopted by the German occupying authority during the war in Belgium and secondly Belgium s decision to invalidate the laws passed during the occupation The German authorities interpreted Article 43 as sanctioning the transfer of legislative authority to the German government By doing so they made sweeping administrative changes by altering Belgium s political structure in favour of the then disadvantaged Flemish Such a measure was considered to be an abuse of occupant s power On the other hand the Belgium Courts held that any act passed by the German authorities during the occupation to be illegal The Court of Appeal of Liege vehemently contested the German s interpretation as logically and legally inadmissible and held that Article 43 of the Hague convention conferred upon the occupying power a positive right to legislate that all that was intended was to restrict the abuse of force by the occupant and not to give him or recognise him as possessing any authority in the sphere of law
The Court developed the so called Belgian School according to which the coercive power of the occupant meant that it could enforce its commands but its order did not have any legal effect The concrete determinacy and relevance of the idea of military occupation It is not to say that the Belgian authority was under an obligation to retain the laws that were passed by Germany during the occupation but it's merely to highlight the different interpretation that the two parties had to Article 43 And fundamentally what shortcomings of international law is the lack of a centralised authority to interpret the law that can be objectively assessed The second war also posed another challenge which undermined the law of occupation Most states failed to recognise the applicability of the law of occupation to de facto occupied territories The occupation of the Axis countries in Germany Austria and Japan by the Allied forces and the USSR is considered to be the birth of the transformative occupation which aimed at making drastic political and other changes in those countries Adam Roberts argues that the occupations went beyond the Hague Regulations but fell short of annexation or assumption of sovereignty However even though sovereignty was vested in the German people the allied authorities conferred upon themselves sovereign rights
The allies justified the radical democratic changes carried out in West Germany on the policy of de Nazifying Germany The UK Foreign Office in 1945 said that they are proposing to exercise their authority with respect to Germany in order to expel the Nazi system and its manifestations completely and utterly and continue this process indefinitely until it has succeeded The UK foreign office did acknowledge that their actions did go far beyond the exercise of military occupation as limited by international law at the time To be exempt from the Hague regulation the Allies insisted on unconditional surrender This is because the occupiers did not want to be formally bound by the Hague regulation Even though sovereignty was vested in the German population the Allied authorities conferred upon themselves sovereign rights Japan s occupation by the US was also preconditioned on the instrument of surrender which allowed the US to carry out a comprehensive reform of Japan s imperial and militarist legacies without necessarily being constrained by the Conservationist principle of the Hague regulation Robert Jennings argued that the law of occupation has two functions first the protection of the legitimate government s sovereign rights of the occupied territory and second to safeguard the population of the occupied territory from exploitation by the occupants Neither of these purposes had much bearing on the situation the Allies faced thus the whole raison d ètre of the law of belligerent occupation is absent in the circumstances of the allied occupation of Germany and to attempt to apply it would be a manifest anachronism There is no possible interpretation of the rules of warfare that could bring the powers exercised by the Allies in Germany within the scope of belligerent occupation
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