CO129-585-3 Sino-Japanese conflict- shipping 17-1-1940 - 13-11-1940 — Page 39

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between military occupation and "de facto" sovereignty.

Reading chapter IV of Hall's Treatise as a whole I can find no support for the contention that in modern times an invader is regarded by international law as "de facto" sovereign of the territory he has occupied.

At page 559 Hall makes it clear that this was the old theory the theory of partial and substituted sovereignty whereas "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 the enemy, that the rights of the sovereign remain "intact, and that the legal relations of the population "towards the invader remain unchanged". "So also the French "Manuel de Droit international (page 93) l'occupation est "simplement un état de fait qui produit les consequences d'un "cas de force majeure; l'occupant n'est pas substitutive en "droit au gouvernement légal."

Furthermore, so far from recognising the supersession by an invading power of the jurisdiction of the local courts in the area invaded, Article 23 (h) of the Hague Regulations, 1907, states that it is specially prohibited to an invader "to declare "extingui shed, suspended, or unenforceable in a Court of law the "rights and rights of action of the nationals of the adverse

'party."

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It is admitted here that on the Japanese occupation of Shantung the District Court of Chefoo ceased to function, but that could not deprive the respondents of their right of action in the District Court of Chungking which had been given special jurisdiction to deal with Shantung matters. Indeed the appellants themselves seem to have recognised that Chinese law had not ceased to run in Chefoo and Shantung since they appealed to the First Divisional Court of Szechuen (at Chungking) against the order of the Chungking District Court.

Even if effective military occupation were indistinguishable from "de facto" sovereignty, there is the clearest possible authority for the proposition that it is not for an English Court to declare that a state of "de facto" sovereignty exists or existed at any given time, unless it has received an authoritative communication to that effect from one of His Majesty's Principal Secretaries of State (or in Crown Colony from the Colonial Secretary). Recognition of "de facto" sovereignty is an act of State. and it is only when such sovereignty is recognised by His Majesty the King as Head of the State that his Courts will give effect to the legal rights that arise from the establishment thereof. In case of doubt a Court can apply to a Secretary of State for the necessary information. See the Bank of Ethiopoa and Ranca de Bilbao cases (supra).

and

Here there can be no possible doubt that the duly recognised sovereignty de facto and de jure over the Province of Shantung lies in the Government of the Republic of China, it follows that this Court cannot consider the possibility of any other sovereignty being exercised or of the curtailment of any of China's rights therein.

It/