SECTION 11. _enemy Property in Occupied Territory_

Enemy Property in Occupied Territory

By Art. 55 of The Hague Règlement of 1899, which reproduces Art. 7 of the Brussels Projet, and is repeated as Art. 55 of the Règlement of 1907: "The occupying State shall regard itself as being only administrator and usufructuary of the public buildings, immoveable property, forests and agricultural undertakings belonging to the hostile State and situated in the hostile country. It must protect the substance of these properties and administer them according to the rules of usufruct."

The following letter touches incidentally upon the description of the rights of an invader over certain kinds of State property in the occupied territory as being those of a "usufructuary."

INTERNATIONAL "USUFRUCT"

Sir,--The terminology of the law of nations has been enriched by a new phrase. We are all getting accustomed to "spheres of influence." We have been meditating for some time past upon the interpretation to be put upon "a lease of sovereign rights." But what is an international "usufruct"? The word has, of course, a perfectly ascertained sense in Roman law and its derivatives; but it has been hitherto employed, during, perhaps two thousand years, always as a term of private law--i.e. as descriptive of a right enjoyed by one private individual or corporation over the property of another. It is the "ius utendi fruendi, salva rerum substantia." The usufructuary of land not merely has the use of it, but may cut its forests and work its mines, so long as he does not destroy the character of the place as he received it. His interest terminates with his life, though it might also be granted to him for a shorter period. If the grantee be a corporation, in order to protect the outstanding right of the owner an artificial limit is imposed upon the tenure--e.g. in Roman law 100 years, by the French Code 30 years. For details it may suffice to refer to the Institutes of Justinian, II. 4; the Digest, VII. 1; the Code Civil, sects. 573-636; the new German Civil Code, sects. 1030-1089.

It remains to be seen how the conception of "usufruct" is to be imported into the relations of sovereign States, and, more especially, what are to be the relations of the usufructuary to States other than the State under which he holds. It is, of course, quite possible to adapt the terms of Roman private law to international use. "Dominium," "Possessio," "Occupatio," have long been so adapted, but it has yet to be proved that "Usufructus" is equally malleable. I can recall no other use of the term in international discussions than the somewhat rhetorical statement that an invader should consider himself as merely the "usufructuary" of the resources of the country which he is invading; which is no more than to say that he should use them "en bon père de famille." It will be a very different matter to put a strict legal construction upon the grant of the "usufruct" of Port Arthur. By way of homage to the conception of such a grant, as presumably creating at the outside a life-interest, Russia seems to have taken it, in the first instance, only for twenty-five years. One may, however, be pardoned for sharing, with reference to this transaction, the scruples which were felt at Rome as to allowing the grant of a usufruct to a corporation--"periculum enim esse videbatur, ne perpetuus fieret."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 30 (1898).

P.S.--It would seem from M. Lehr's Éléments du droit civil Russe that "usufruct" is almost unknown to the law of Russia, though a restricted form of it figures in the code of the Baltic provinces.

It is certain that, apart from general conventions, international law imposes no liability on an invader to pay for requisitioned property or services, or to honour any receipts which he may have given for them.

The Hague Convention of 1899 made no change in this respect. Arts. 51 and 52 of the Règlement annexed to the Convention direct, it is true, that receipts should be given for contributions ("un reçu sera délivré aux contribuables") also for requisitions in kind, if not paid for ("elles seront constatées par des reçus"), but these receipts were to be merely evidence that money or goods have been taken, and it was left an open question, by whom, if at all, compensation was to be made or the losses thus established.

The Règlement of 1907 is more liberal than that of 1899 with reference to requisitioned property (though not with reference to contributions). By the new Art. 52, "supplies furnished in kind shall be paid for, so far as possible, on the spot. If not, they shall be vouched for (constatées) by receipts, and payment of the sums due shall be made as soon as may be." The Hague Convention mentioned in the following letter is, of course, that of 1899.

REQUISITIONS IN WARFARE

Sir,--A few words of explanation may not be out of place with reference to a topic touched upon last night in the House of Commons--viz. the liability of the British Government to pay for stock requisitioned during the late war from private enemy owners. It should be clearly understood that no such liability is imposed by international law. The commander of invading forces may, for valid reasons of his own, pay cash for any property which he takes, and, if he does not do so, is nowadays expected to give receipts for it. These receipts are, however, not in the nature of evidence of a contract to pay for the goods. They are intended merely to constater the fact that the goods have been requisitioned, with a view to any indemnity which may eventually be granted to the sufferers by their own Government. What steps should be taken by a Government towards indemnifying enemies who have subsequently become its subjects, as is now happily the case in South Africa, is a question not of international law, but of grace and favour.

An article in the current number of the Review of Reviews, to which my attention has just been called, contains some extraordinary statements upon the topic under discussion. The uninformed public is assured that "we owe the Boers payment in full for all the devastation which we have inflicted upon their private property ... it is our plain legal obligation, from the point of view of international law, to pay it to the last farthing." Then The Hague Convention is invoked as permitting interference with private property "only on condition that it is paid for in cash by the conqueror, and, if that is not possible at the moment, he must in every case give a receipt, which he must discharge at the conclusion of hostilities." There is no such provision as to honouring receipts in this much-misquoted convention.

Your obedient servant, T. E. HOLLAND. Oxford, July 30 (1962).

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