GERMAN NEW GUINEA MILITARY OCCUPATION OF ENEMY TERRITORY: WHETHER OCCUPYING ADMINISTRATION IS REQUIRED TO INSURE PRIVATE PROPERTY USED FOR MILITARY PURPOSES: RIGHTS AND OBLIGATIONS WITH RESPECT TO PRIVATE PROPERTY INCIDENT TO MILITARY OCCUPATION
HAGUE CONVENTION (1907) (No.IV) CONCERNING THE LAWS AND CUSTOMS OF WAR ON LAND, Arts 46, 55
The Secretary, Department of Defence, has forwarded the following memorandum for advice:
I request advice on the following subject: Administration is in possession of, and occupying many bungalows and buildings, the property of the late German Administration, also buildings owned by private individuals and firms. For some of the latter rents have been agreed to and leases arranged, others are still the subject of negotiation which may not be concluded before the end of the war.
We occupy the Rabaul wharf and also a coal wharf at Katupi, for which no agreement exists.
None of these buildings are insured, and I am not sufficiently in touch with insurance rates to arrive at any conclusion as to the advisability of Administration continuing this risk. Practically all the bungalows are detached wooden buildings, lit by kerosene lamps. The wharf is also lit by kerosene. In many cases fire buckets are kept filled at the bungalows, but no other precaution against fire is observed.
Will you please inform me whether you think any further action is necessary.
I have read the terms of capitulation in connection with the occupation of Rabaul, and I am of opinion that these terms do not affect the question raised.
The law relating to military occupation is laid down in the fourth Convention of the Hague Conference, 1907. The law prior to this, as stated in Wheaton's International Law, 4th edn, p. 483, is as follows:
The effects of military occupation are different with regard to moveable and to immoveable property. It gives the conqueror the right to acquire a complete title to moveables, and to transfer them to any one he pleases, but it only gives him a qualified right over immoveables. He may use real property as he pleases during his occupation, but if he sells it, the purchaser takes it at the risk of being evicted by the original owner.
The Hague Convention distinguishes between state property and private property. Article 55 reads as follows:
The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural undertakings belonging to the hostile State and situated in the occupied territory. It must protect the capital of these properties and administer them in accordance with the rules of usufruct.
In Lawrence's Principles of International Law, 4th edn, p. 436, this Article is explained as follows:
With regard to immovables belonging to the invaded state, the occupying belligerent is to consider itself as an administrator and usufructuary only. That is to say, it may use the public lands, buildings, forests, and other real estate, and may take all the rents and profits arising from them, but may not waste or destroy the things themselves, save under stress of the most urgent military necessity.
In my opinion the occupying state cannot destroy or waste the things themselves, but there is no obligation upon it to insure those things.
In regard to private property, Article 46 of the Convention provides as follows:
Family honour and rights, lives of private individuals, and private property, as well as religious convictions and the practice of worship, must be respected. Private property cannot be confiscated.
This Article forbids the confiscation of private property, but not its use for military purposes. Such use is permitted by the laws and customs of war (see passage from Wheaton's International Law cited above).
In my opinion, where private property is used for military purposes the occupying state is not bound to insure such property.
[Vol. 16, p. 33]