_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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