38
He contends that, once it is admitted (as here) that part of a country has been effectively occupied by an enemy, the area becomes subject to that enemy and the jurisdiction of the country's Courts ceases to run therein.
In support of this contention he has cited passages from various authoritative works on International law.
In paragraph 155, page 559 of his Treatise (8th Edition) Hall puts the case thus;-
But
"An invader has the right of exercising such control, and such control only, within the occupied territory, as it required for his safety and the success of his operations. the measure and range of military necessity in particular cases can only be determined by the circumstances of those cases. It is consequently impossible formally to exclude any of the subjects of legislative or administrative action from the sphere of the control which is exercised in virtue of it; and the rights acquired by an invader in effect amount to all ultimate legislative and executive power. On occupying a country an invader at once invests himself with absolute authority; and the fact of occupation draws with it as of course the substitution of his will for previously existing laws wherever such substitution is reasonably needed, and also the replacement of the actual civil and judicial administration by military jurisdiction."
Again in paragraph 156, page 561 - "He (the invader) suspends the operation of the laws under which they (the inhabitants) owe allegiance to their legitimate ruler" and in paragraph 157, page 566 "It has been seen that the authority of the local, civil and judicial administration is suspended as of course so soon as occupation takes place."
Statements to a similar effect appear in Oppenheim's reatise (5th Edition Volume II at pages 345 and 356, and in Halleck's International Law Volume II at pages 449, 462 and 469.
These authoritative statements taken by themselves undoubtedly lend some colour to the view that at the time when the winding-up order was made by the District Court of Chungking the administration of justice in the province of Shantung was no longer in the hands of the Chinese judicature, and that the order was therefore a nullity. And the same view is also at first sight supported by two of the cases relied on by the respondents, Pank of Ethiopia v. National Bank of Egypt (1937 Chancery 513) and Banca de Balbao v. Sancha (1938, 2 Chancery 176), in each of which it was held that where "de facto" sovereignty over a country or part of a country has been established by an invader the English Courts will not give effect to decrees by the dispossessed sovereign of the country purporting to take effect in the invaded and occupied area, even though he is regarded by His Majesty's Government as still retaining "de jure" sovereignty.
In my judgment, however, this view is based on the fallacious assumption that there is no distinction in law
between/
No comments yet.
Private notes are available after approval.