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17. An occupation of a territory by the enemy may be an occupation for military or strategic purpose and the territory may be subjugated by the hostile force which occupies it so as to subject it to such control as it may think fit to exercise, or it may, having occupied it by cession or conquest or some other means permanently or temporarily have incorporated it with the territory ever which the enemy has undisputed sovereignty. There may yet be an intermediate position where the enemy without actual and formal annexation of the territory may hold the dominion and control over the territory for a sufficiently long period and the occupation may be of such relatively permanent character as to indicate an intention to hold it. The belligerent State may in such a case assume some kind of administration over it.

This view has been regarded by all the authorities as erroneous and an occuoation of such a nature has not the effect of altering the" national character of the territory. The second view was held by the Right Hon. T. Pemberton Leigh, afterwards Lord Kingsdown, in the 'Gerasimo's Case', (1857) 11 Moore P.C. 88.

The intermediate view has been established by the decision of the House of Lords in 'Sov-Fracht (V/O) CASE' (1943) A.C. 203. Whea-ton on International Law, Vol. II, 6th Edn, at page 780 points out the distinction between"occupation" and "conquest" in these words:. "Further, just as invasion must be accompanied by certain essential conditions in order, that it may be transformed into occupation,, so must military occupation be accompanied, by certain necessary conditions in order- that it may ripen into conquest. Formerly, a a-, we have pointed out above, the invader assumed the larger rights of an occupant, andl the: occupant assumed the still larger rights of a conqueror. But now there is a line, of demarcation between these stages. Conquest or complete subjugation implies the permanent subjection of the occupied country to the sovereign of the occupying forces, with the intention that this territory shall be annexed to the dominions of the new sovereigns and shall henceforth be considered as a constituent portion thereof; that is, conquest depends on "firm possession" together with- the intention and the capacity to hold the terri--tory so acquired.

The rights under occupation, then, cannot be co-extensive with those of sovereignty, The rights acquired are due to the military exigencies of the invader, and consequently are only provisional. The local inhabitants do not owe the occupant even temporary allegiance; and the national character of the locality is not legally changed.

This view has long been adopted by British Courts. Thus in the 'Gerasimo's Case, 11 Moore P. C. 88 the Privy Council pointed out that in order to convert a friendly or neutral territory into an enemy territory, it was not sufficient that the territory in question should be under hostile occupation and subjected to the control of a hostile power; some additional element was necessary, e.g. cession or conquest, whereby the territory was incorporated with and made part of the dominions of the invader. This principle was adopted not only by the British Prize Courts, but also, in the Courts of common law. Lord Stowell emphasised the distinction between a hostile occupation and possession clothed with a legal right by cession or conquest, or confirmed by lapse of time." In the 7th Edn. of Wheaton's International law, Vol. II, pages 233 and 234, the same definition of conquest is retained. The point for consider ration, therefore is, is there a substantial difference between the view of Lord Kingsdown ire 'Gerasimo's Case', (1857) 11 Moore PC 88 as to what is required to be established to change the national character of the territory and the view expressed by the House of Lords in 'Sov-Fracht (V/O) CASE', (1943) A.C. 203.

19. From the foregoing discussion, it would follow that the only difference between the House of Lords and Lord Kingsdown is this, that a formal declaration of a conquest, cession or annexation is not needed to change the national character of the territory according to the House of Lords. Lord Kingsdown in terms does not himself express and insist on such formality though Lord Stowell laid down that requirement in the case of The "Fama" 5 Rob. 115.

The essence, however, of the two views is that the occupation must be an effective occupation with the intention to hold it as if by conquest. It must be total subjugation. The civil and military administration over the country must be exercised by the enemy to the exclusion of the former government. The occupation should not be of the slightest character for military or strategical reasons, but of the more comprehensive nature. The enemy must have effective control though provisional and must treat it as a settled acquisition. If the oc-cupation is in a fluid state, swinging backwards and forwards, as in the case of Korea at present, the national character of the territory would not be altered. This approximates to the test laid down by Wheaton in defining what constitutes conquest.