46
The strongest view put forward in support of the argument that Chinese jurisdiction is suspended in Shan Tung is a passage in Halleck's International Law, published in 1878, Volume II, page 462, para. 14 -
"The duty of allegiance is reciprocal to the duty of protection. The sovereignty of the state which is thus unable to protect its territory is displaced and that of the conqueror substituted in its stead."
In regard to allegiance, that is, the lawful obedience which a subject is bound to render to his sovereign, Halleck is obviously referring to a local allegiance only, like that which an alien owes to the sovereign of the country in which he may be. In this regard he goes on to say
"But this change of sovereignty may be only of a temporary character, for the conquered territory may be recaptured by the former owner or it may be restored to him by a treaty of peace. During mere military occupation the sovereignty of the conqueror is unstable and incomplete. Hence the allegiance of the inhabitants of the territory so occupied is a temporary and qualified allegiance which becomes complete only on the confirmation of the conquest and with the express or implied consent of the conquered."
While the modern text-book writers, whose works have been freely quoted to us, consider that an invader has for the time being absolute authority in occupied territory, nowhere do they suggest that the rights of the invader enable him to do more than the military situation requires. And they clearly show that interference with the civil administration of occupied territory is limited to military necessity.
But military necessity cannot justify the voluntary acts of private persons, and so cannot warrant the refusal by the members of this company to obey the lawful order of a Chinese court. We cannot assume without any evidence that the Japanese authorities have interfered, or would interfere, to keep this company alive in spite of itself or against the will of its members, or that those authorities would do anything to prevent the members of the company resorting to the Chinese court, as they have in fact done here. This is strictly in accordance with Article XXIII (h) of The Hague Regulations, declares that it is especially forbidden
which
"to declare abolished, suspended or inadmissible in a
court of law the private claims of reassortissents of the hostile party."
In Halleck, at page 449, we find the statement, with regard to the suspension of political but not municipal laws, that
"Neither