Opinion Number. 723

Subject

GERMAN NEW GUINEA WHETHER POSTAGE RATES APPLICABLE TO PLACES IN BRITISH EMPIRE CAN BE APPLIED TO GERMAN NEW GUINEA: NATURE OF BRITISH OCCUPATION OF GERMAN NEW GUINEA

Date
Client
7-Jul-16

The Secretary to the Postmaster-General's Department has asked for advice on the question whether, in view of the British occupation of what was formerly German New Guinea, and the adjacent islands, pending decision re ownership by the Prize Court or other tribunal adjudicating on such matters after the termination of the war, such occupancy is sufficient to warrant the Commonwealth in treating these territories as British in contradistinction to foreign, that is to say, whether the nature of the occupation is such as to warrant the Commonwealth applying to those territories the rates of postage which automatically apply to places within the British Empire.

Hall, International Law, 6th edn at page 464 states that 'the rights of occupation may be placed upon the broad foundation of simple military necessity' and on page 465 he expands this principle by the statement that 'the rights acquired by an invader in effect amount to the momentary possession of all ultimate legislative and executive power'. He then indicates as follows the general conditions of the exercise of this ultimate authority:

In its exercise however this ultimate authority is governed by the condition that the invader, having only a right to such control as is necessary for his safety and the success of his operations, must use his power within the limits defined by the fundamental notion of occupation, and with due reference to its transient character. He is therefore forbidden as a general rule to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community. Commonly also he has not the right to interfere with the public exercise of religion, or to restrict expression of opinion upon matters not directly touching his rule, or tending to embarrass him in his negotiations for peace.

In my opinion, therefore, the nature of the British occupation of what was formerly German New Guinea, and the adjacent islands, is such as to warrant the Commonwealth applying to these territories the rates of postage which automatically apply to places within the British Empire.

[Vol. 14, p. 379]