All German possessions, which were administered from Rabaul, are included in terms of surrender by German Governor of Rabaul, vide following telegram received from the Administrator, Rabaul on the 17th instant:

Your 0315 Yes, surrender covers all German possessions Western Pacific officially

known as German New Guinea includes Islands you specify.

The Marshall, Caroline, Pelew and Mariana Islands are thus included.

These Islands have not been occupied by our forces, but have been effectively patrolled by Japanese men of war.

In these conditions would it be trading with the enemy for our merchant vessels to trade with the Islands?

The ordinary supplies to the Islands have been cut off and foodstuffs are urgently required.

The surrender by the German Governor of Rabaul was of course not a cession of sovereignty; it was in fact no more than a

cessation of hostilities and an admission of the British force into peaceful occupation. In general terms, it may be agreed that the military occupation of an enemy's territory attaches to it for most of the purposes of the war a friendly character, and after the occupation trade with the place occupied would not be trade with the enemy, though of course it would be subject to such restrictions as the occupant thought fit to put upon it.

The extent of territory covered by an 'occupation' is one of the controverted points of international law. One view regards it as coterminous with the administrative unit in which it has been established if in fact resistance has ceased (Hall, International Law, p. 476). The Hague Convention 1907 No. IV, Article XLII, states that 'a territory is considered to be occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established and can be exercised'.

It may be doubtful whether the mere surrender by the Governor of Rabaul, even if expressed to cover all German possessions in the Pacific would put the Marshall, the Caroline, the Pelew and Mariana Islands in British occupation. But presumably there are some representatives of German authority in these places, and they must either recognise or repudiate the new condition of things. If they recognise it and are in fact acting under the Allies' authority, that certainly would, in company with the other facts stated, be a substitution of the British or Allied occupation for that of Germany. In such circumstances, trade with the Islands would not be trade with the enemy, and it would then be for the Allies to determine under what conditions trade should be permitted.

If the authorities in these Islands do not recognise the Allies' authority and claim to administer independently or to offer resistance, the Islands must still be considered enemy territory until that condition of things is altered.⁽¹⁾

[Vol. 13, p. 117]

(1)In forwarding this opinion Mr Garran,Secretary,Attorney-General's Department,stated that it was 'concurred in by this Department'.

See Preface.