Temporary allegiance

In Anglo-American law, as distinguished from that of the Continent, the relationship of the population of an occupied area to the occupant was, during a large portion of the nineteenth century, described in terms of temporary allegiance. This view is particularly apparent in the American jurisprudence of the period. It received its first statement in United States v. Hayward,12 in which Mr. Justice Story made his celebrated statement that by the military occupation of Castine, Maine, by British forces, the inhabitants thereof passed under a temporary allegiance to the British Government. Subsequent opinions of the United States Supreme Court adopted this principle,[1] but in 1830 the Court tempered its holding by suggesting that the occupation of James Island and Charleston by the British in 1780, while causing the inhabitants to owe temporary allegiance to Great Britain, did not ‘annihilate their allegiance to the state of South Carolina’.[2] This judicial characterization of the effect of belligerent occupation represented the state of the law during the war with Mexico and formed the basis of political pronouncements of the time.[3]

Repeated judicial affirmations of this principle left little room for dissent upon the part of American international lawyers. The duty of allegiance is, according to Halleck, writing in 1861, reciprocal to the duty of protection which rests on the occupant, but because of the incompleteness and instability of occupation, the allegiance is only a temporary or qualified one.[4] In fact, the civilian inhabitants of a place taken by the enemy who are allowed to lay down their arms and return to their peaceful pursuits are ‘virtually in the condition of prisoners of war on parole’.[5] Other authors, in extending this characterization to the inhabitants of occupied areas generally, overlooked the fact that Halleck had been speaking of members of defending armed forces who had surrendered and been allowed to assume peaceful occupations.[6] The American writers often speak of an ‘implied covenant’ or an ‘implied parole’ to remain quiescent which is imputed to the inhabitants and forms the basis of their allegiance to the occupant.[7] During the nineteenth century Mr. Justice Story’s remarks in United States v. Hayward were also quoted and approved by a number of British writers on the subject.[8]

The adoption of Article 45 of the Regulations annexed to Convention No. IV of The Hague of 1907, which forbade compelling the population of occupied territory to swear allegiance to the hostile Power, eventually made this theory untenable. The question of the exaction of an oath of allegiance had previously attracted relatively little attention. The United States Instructions for the Government of Armies of the United States in the Field, which came into use during the Civil War, had stated no more than that an oath of fidelity or temporary allegiance might be administered to civil officers in the occupied territory,[9] but Bluntschli’s paraphrase of this provision carried an annotation to the effect that an ‘oath of citizenship’ could not be demanded in occupied territory until the conclusion of peace.[10] A provision substantially similar to Article 45 had originally been drafted at the Brussels Conference of 1874[11] and was repeated in the Oxford Manual prepared by the Institute of International Law in 1880.[12] With the unequivocal statement of the 1899 Regulations, which was repeated without further discussion in 1907,[13] it was hardly possible to argue that an inhabitant owed any duty of allegiance to the occupant. More recently, the Geneva Civilians Convention of 1949 has called attention to the fact that an individual in occupied territory who has committed an offence against the occupying Power is not to be considered as bound to the occupant by any duty of allegiance.[14]

  • [1] UnitedStates v. Rice (1819), 4 Wheat. 246; Flemingetal. v. Page (1850), 9 How. 603; Thorington v.Smith (1868), 8 Wall. 1.
  • [2] Shanks v. Dupont (1830), 3 Pet. 242.
  • [3] In replying to Congressional inquiries concerning the administration of the occupied portion ofMexico, President Polk, in a message to the House of Representatives on 24 July 1848, stated that theinhabitants of this area owed a temporary allegiance to the United States. He quoted extensively fromUnitedStates v. Rice (Richardson, A Compilation ofthe MessagesandPapersofthe Presidents, 1789—1897(1897), vol. iv, p. 595).
  • [4] International Law; or, Rules Regulating the Intercourse of States in Peace and War (1861), p. 791.
  • [5] Ibid., p. 793.
  • [6] See, e.g., Rolin-Jaequemyns, ‘Chronique du droit international. Essai complementaire sur laguerre franco-allemande dans ses rapports avec le droit international’, in Revue de droit international etde legislation comparee, 3 (1871), p. 312.
  • [7] Field, Draft Outlines of an International Code (1872), vol. ii, p. 482; Birkhimer, MilitaryGovernment and Martial Law (1892), pp. 38—41. Dana’s notes in his edition of Wheaton state thatthe occupying forces have ‘a right to require of the inhabitants an oath or parole, not inconsistent withtheir general and ultimate allegiance to their own state’ to remain quiet and submit to the occupant’sauthority (Wheaton, Elements of International Law (8th ed. by Dana, 1866)), p. 436, note. AlthoughHannis Taylor believed that temporary or qualified allegiance is owed to the occupant, he adopted theview that there is no legal or moral impediment to insurrection by the inhabitants if they are willing toundergo the perils of such an enterprise (A Treatise on International Public Law (1901), pp. 585—92).
  • [8] Phillimore, Commentaries upon International Law (3rd ed., 1885), vol. iii, p. 869; Creasy, FirstPlatform of International Law (1876), p. 512; Wheaton, op. cit. (3rd English ed. by Boyd, 1889),p. 469.
  • [9] Art. 26, General Orders No. 100, War Department, Adjutant General’s Office, 24 April 1863.
  • [10] Das moderne Volkerrecht der civilisirten Staaten (1868), } 551.
  • [11] Art. 37. The provision in the projet submitted to the Conference by the Russian Government hadbeen that the occupied population could not be required to submit to a ‘serment de sujetionperpetuelle’ to the enemy (see Art. 49, Projet, in Actes de la Conference de Bruxelles (1874)).
  • [12] Art. 47, ‘Manuel deslois de laguerre’,in Annuairede Unstitutde droit international, 5 (1881—2),p. 167. In a penal code of war prepared by de Landa in 1878, the requiring of an oath (of apparentlyany nature) of the population of occupied territory rendered the occupant guilty of an abus d'autoriti(‘Droit penal de la guerre. Projet de classification des crimes et delits contre les lois de la guerre’, inRevue de droit international et de legislation comparie, 10 (1878), p. 183).
  • [13] See The Proceedings of the Hague Peace Conferences. The Conference of1899 (ed. by Scott, 1920),pp. 63, 428, 487, 557.
  • [14] Art. 68. See also Art. 67, which provides in part that ‘They [the courts of the occupant] shall takeinto consideration the fact that the accused is not a national of the Occupying Power.'
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