Rev. Mons. Sebastiao Francisco Xavier
DOS. Remedios Monte Vs. State of Goa  INSC 92 (26 March 1969)
26/03/1969 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SIKRI, S.M.
CITATION: 1970 AIR 329 1970 SCR (1) 87 1969
SCC (3) 419
Geneva Conventions Act Fourth Schedule, Arts.
6, 47, 49Occupation' under Art. 47 whether continues after annexation and
subjugation-True annexation distinguished from premature annexation-Art. 47
refers to premature annexation only-Goa annexed by India after swift military
action-Benefit of Arts. 47 and 49 whether available to Portuguese nationals in
Goa-Court's power to give remedy.
The Geneva Conventions Act 6 of 1960 was
passed by the Indian Parliament to enable effect to be given to the
International Conventions done at Geneva in 1949. India and Portugal have both
signed and ratified the Conventions. The four Conventions were adopted in as
many Schedules to the Act. 'Mc Fourth Convention was meant to apply to all cases
of partial or total occupation of the territory of the contracting parties and
gave protection to persons who, found themselves in case of a conflict or
occupation in the hands of a Party to the conflict or Occupying Power of which
they were not nationals. In the case of occupied territory the Convention
applies under Art. 6 for a period of one year after the general close of
Military operations, but during the period of occupation the Occupying Power is
bound by certain Articles including, inter alia, Arts. 1-12, 47 and
49. By Art. 47 protected persons in occupied
territory cannot be deprived of the benefits of the Convention despite any
change introduced as a result of the occupation or even annexation of whole or
part of the territory by the Occupying Power. Art. 49 forbids the deportation
of protected persons 'from the occupied territory. There is no definition of
the term 'occupied' in the Geneva Conventions but the Hague Regulations to
which the Conventions are made supplementary defined a territory as occupied
when it finds itself 'in fact placed under the authority of a hostile Army'.
The territory of Goa was a Portuguese colony
for about 450 years, having been seized by force of arms. On December 19, 1961
Goa was occupied by Indian Armed Forces following a short military action. It
then came under Indian Administration from December 20, 1961 and was governed
under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the
President of India. The Ordinance was replaced on March 27, 1962 by Act 1 of
1962. The same day the Constitution (Twelth Amendment) Act 1962 was enacted and
was deemed to have come into force on December 20,, 1961.
By this amendment Goa was included in the
Union Territories and a reference to Goa was inserted in Art. 240 of the
Constitution. Indian laws including the Citizenship Act of 1955, the Foreigners
Act 1946 and the Registration of Foreigners Act 1939 were extended to Goa. The
Central Government also promulgated under s. 7 of the Citizenship Act, 1955,
the Goa, Daman and Diu (Citizenship) Order 1962.
The second paragraph of the order conferred
Indian Citizenship on certain classes of persons in these territories, giving
an option to those desirous of retaining their previous citizenship or
nationality of another country to make a declaration to that effect within one
month of the Order.
88 The appellant who was a resident of Goa
made pursuant to the above order his declaration of Portuguese nationality. He
was allowed to stay in India under a temporary residential permit till November
13., 1964. After that date he did not ask for a renewal of the permit. The Lt.
Governor of Goa empowered under Art. 239 of the Constitution ordered him to
leave India. For disobeying the order he was prosecuted under s. 14 read with
s. 3 (2) (c) of the Foreigners Act.
Being convicted he appealed unsuccessfully to
the Court of Session. His revision petition being rejected by the Judicial
Commissioner, he appealed by special leave to this Court.
The contention on behalf of the appellant
were based on the Geneva Conventions which it was said had become a part of the
law of India under Act 6 of 1960. It was urged that after the United Nations
Charter the acquisition of territory in International Law by 'force of arms
could not confer title. The amendment of the Constitution only legalised the
annexation so far as India was concerned but in International Law the territory
remained occupied because it had neither been ceded, nor had the Occupying
Power withdrawn. As a result, it was contended, the protection of Arts. 47 and
49 continued to be available to the appellant and by disobeying the deportation
order he did not commit any offence.
HELD : (i) The appellant's argument
overlooked the cardinal principle of international law that the reception and
residence of an alien is a matter of discretion and every State has by reason
of its own territorial supremacy not only the legal right but also the
competence to exclude aliens from the whole or any part of its territory.
Accordingly every country has adopted the
passport system which document certifies nationality and entry into any State
is only possible with the concurrence of the State.
Again a State exercises territorial supremacy
over persons in its territory, whether its own subjects or aliens, and can make
laws for regulating the entry, residence and eviction of aliens. Therefore the
application of the Foreigners Act, the Registration of Foreigners Act and
Orders passed under them, to the appellant who had chosen Portuguese
nationality was legally competent. There is authority for the proposition that
an alien excluded from the territory of a State cannot maintain an action in a
Municipal Court to enforce his right. [92 H-93 C] Oppen them International Law
(Vol. 1) pp. 675/676, Brierly Law of Nations p. 217, and Musgrove v. Chun
Teeong Toy,  A.C. 272, referred to.
(ii)The Geneva Conventions Act also gives no
specific right to anyone to approach the Court. By itself it gives no special
remedy. It does give indirect protection by providing for penalties for breach
of Convention. The Conventions are not made enforceable by Government against
itself, nor does the Act give a cause of action to any party, for the
enforcement of the Conventions. Thus there is only an obligation undertaken by
the Government of India to respect the Conventions regarding the treatment of
civilian population but there is no right created in favour of protected which
the court has been asked to enforce. If there is no provision of law which the
courts can enforce the court may be powerless and has to leave the matter to
the 'indignation of mankind'. [97 B-C] (iii)The Geneva Conventions too did not
support the appellant's claim to the benefit of Art. 49 of the Fourth
Convention on the basis that Goa continued, even after its annexation by India,
to be occupied territory B within the meaning of Art. 47.
(a)In the Hague Regulations to which the
Geneva Conventions were supplementary the definition of 'occupation' shows that
a territory is considered as occupied when it finds itself in fact placed under
the authority of a hostile army. This means that occupation is by military
authorities i.e. belligerent occupation. Under belligerent occupation, which is
a de facto situation, the Occupied Power is not deprived of its sovereignty or
its statehood. All that happens is that pro tempore the Occupied Power cannot
exercise its rights, its Government cannot function and authority is exercised
by the occupying force. In this connection the courts must take the Facts of
State from the declaration of the State authorities. [99 C-F] United States v.
Attstoctter et tit, (1947) U.S. Military Tribunal, Nuremburg L.R. 3 T.W.C. vi,
34, referred to.
(b) Annexation as distinguished from
belligerent occupation occurs when the Occupying Power acquires and makes the
occupied territory its own. Annexation gives a de jure right to administer the
territory. Annexation means that there is not only possession but uncontested
sovereignty over the territory. [99 F-G] Greenspan, The Modern Law of Land
Warfare, p. 215; referred to.
There is however difference between true
annexation on the one hand and premature annexation or 'anticipated annexation'
on the other. Annexation is premature so long as hostilities are continuing and
there is an opposing army in the field even if the Occupied Power is wholly
excluded from the territory. Anticipated annexation by unilateral action is not
true annexation. True annexation is only so when the territory is conquered and
subjugated. [99 C-H; 100 A-B] Oppenbeim : International Law (7th Edn.) pp.
1), 566 (Vol. 1), pp. 846-847 (Vol. 11),
430-439 (Vol. 11) and 599 et seq (Vol. 11); Greenspan pp. 215 et seq 600-603,
Gould : Introduction to International Law pp. 652-656, 662663; Brierly : Law of
Nations, p. 155, referred to.
(c) When Conventions lays down that
annexation has no effect they speak of premature or anticipated annexation.
It was so held by the Nuremburg Tribunal and
the experts who drafted the Convention were inclined to add the word 'alleged'
before 'annexation' in Art. 47 to distinguish between annexation following
conquest and subjugation and annexation made while hostilities were going on
subjugation puts an end to the State of war and destroys the source of
authority of the existing Government. In subjugation which is recognised as one
of the modes of acquiring title not only the de facto but also the de jure
title passes to the conqueror. After subjugation the inhabitants must obey the
laws such as they are and not resist them. [10C-D] (d) Under Art. 6 the
Convention continues to apply to occupied territory for one year after the
general close of hostilities for the reason that if the Occupied Power turns
victorious the land would be freed in one year, and if the Occupying Power
remains victorious, as hostilities cease, strong measures against the civilian
population are no longer necessary. Otherwise also, occupation, which means
belligerent occupation comes to an end when hostilities cease and the territory
becomes a part of the Occupying Power. [100 F-G] (e) Title to new territory is
not dependent on recognition.
Despite the Stimson doctrine the conquest of
Abyssinia by Italy was recognised because it was though that the State of
affairs had come to stay. Even after the adoption of the United Nations Charter
events since the Second 2Sup.
CT/69--7 90 World War have shown that
transfer of title to territory by conquest is still recognised. If cession
after defeat can create title, occupation combined with absence of opposition
must lead to the same result. [100 H-101 B] (f)In the present case the military
engagement was only a few hours duration and there was no resistance at all. It
was hardly necessary to try to establish title by history traced to the early
days nor any room for Schwarzenburger's thesis that title is relative and grows
True annexation followed here so close upon
military occupation as to leave no real hiatus. True annexation by conquest and
subjugation was complete on December 20, 1961 and the Geneva Convention ceased
to apply 'from that date.
It was not disputed that the annexation was
Therefore since occupation in the sense used
in Art. 47 had ceased the protection must cease also. [101 C-F] Minquiers and
Ecrenos, 1953 (I.C.J.) 47 and Schwarzenburger : A Manual of International Law,
5th Edn. p. 12, referred to.
(iv)The national status of subject of the
subjugated State is a matter for the State and courts of law can have no say in
the matter. Having chosen Portuguese nationality the appellant could only stay
in India on taking out a permit.
He was therefore rightly convicted under the
law applicable to him. [101 H-102 B] Oppenheim International Law, Vol. 1 p.
573, referred to.
[On the view taken it was not considered
decide the question whether deportation was
an Act of State and the Municipal Courts could therefore give no remedy.] [101
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 50 of 1968.
Appeal by special leave from the judgment and
order dated August 7, 1967 of the Judicial Commissioner Court, Goa, Daman ,and
Diu in Criminal Revision Petition in No. 55 of 1966.
Edward Gardner, O.C., A. Bruto Da Costa, M.
Bruto Da Costa, P. C. Bhartari, A. K. Varma and J. B. Dadachanji, for the
Niren De, Attorney-General, G. R. Rajagopaul,
J. M. Mukhi and R. H. Dhebar, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, C.J. The appellant (Rev. Father Monteiro) is a resident of Goa.
After the annexation of Goa by India, he had the choice of becoming an Indian
national or retaining Portuguese nationality. He choose the latter and was
registered as a foreigner. He also obtained a temporary residential permit
which allowed him to stay on in India till November 13, 1964. The period of
stay expired and he did not ask for its extension or renewal. He was ordered to
leave India by the Lt. Governor of Goa. The Lt. Governor is empowered by a
notification of the President of India issued under Art. 239 of the
Constitution to discharge the functions of the Central Government and his order
91 has the same force and validity as if made by the Central Government. Rev.
Father Monteiro disobeyed the order, and in consequence was prosecuted under S.
14 read with s. 3 (2) (c) of the Foreigners Act. He was convicted and sentenced
to 30 days' simple imprisonment and a fine of Rs. 50/(or 5 days' further simple
imprisonment). He appealed unsuccessfully to the Court of Session and his
revision application to the Court of the judicial Commissioner, Goa also
failed. He now appeals by special leave of this Court against the order of the
Judicial Commissioner, Goa dated August 7, 1967.
The defence of Rev. Father Monteiro was that
he was protected by the Geneva Conventions Act, 1960, that the order of the Lt.
Governor for his deportation was ultra vires the Act and that he had committed
no offence. The Judicial Commissioner and the two courts below have held, for
different reasons, that the Geneva Conventions ceased to apply after Goa became
a part of India and that the Municipal Courts in India can give him no redress against
an Act of State. In the appeal before us Mr. Edward Gardner Q.C. appeared for
Rev. Father Monteiro with the leave of this Court.
To understand the case, a brief history of
the annexation of Goa and what happened thereafter is necessary. Goa was a Portuguese
colony for about 450 years, having been seized by force of arms. On December
19, 1961 Goa was occupied by the Indian Armed Forces following a short military
action. It then came under Indian Administration from December 20, 1961 and was
governed under the Goa, Daman and Diu (Administration) Ordinance 1962
promulgated by the President of India. Under the Ordinance all authorities were
to continue performing their functions and -all laws (with such adaptations as
were necessary) were to continue in force and power was conferred on the
Central Government to extend to Goa other laws in force in India. The Ordinance
was later replaced by an Act of Parliament bearing the same title and numbered
as Act 1 of 1962. It was enacted on March 27, 1962 and came into force from
March 5, 1962. It re-enacted the provisions of the Ordinance and in addition
gave representation to Goa in Parliament amending for the purpose the
Representation of the People Act. The same day (March 27, 1962), the
Constitution (Twelfth Amendment) Act, 1962 was enacted and was deemed to have
come into force on December 20, 1961. By this amendment Goa was included in
Union Territories and -a reference to Goa was inserted in Art. 240 of the
Constitution. Many Acts it,. force in India were then extended to Goa and many
Regulations and Orders were promulgated. Among the Acts so extended were the Citizenship
Act of 1955, the Foreigners Act 1946 and the Registration of Foreigners Act,
92 The Central Government also promulgated
under S. 7 of the Citizenship Act, 1955, the Goa, Daman and Diu (Citizenship)
Order 1962 and as it directly concerns the present matter we may re produce the
second paragraph of the Order (in so far as it is material to our purpose) here
"2. Every person who or either of whose
parents or any of whose grand-parents was born before twentieth day of
December, 1961, in the territories now comprised in the Union Territory of Goa,
Daman and Diu shall be deemed to have become a citizen of India on that day :
Provided that any such person shall not be
deemed to have become a citizen of India as aforesaid if within one month from
the date of publication of this Order in the Official Gazette that person makes
a declaration in writing to the Administrator of Goa, Daman and Diu or any
other authority specified by him in this behalf that he chooses to retain the
citizenship or nationality which he had immediately before the twentieth day of
Pursuant to this Order, on April 27, 1962, Rev. Father Monteiro made his
declaration of Portuguese nationality and on August 14, 1964 applied for a
residential permit. On his failure to apply for a renewal of the permit the
order of the Lt. Governor was passed on June 19, 1965. Prosecution followed the
disobedience of the order.
At the outset it may be stated that Mr.
Gardner concedes that he does, not question the legality of the military action
or the annexation. In fact, he is quite clear that we may consider the annexation
to be legal. His contention, in brief, is that the order of the Lt. Governor is
tantamount to deportation of Rev. Father Monteiro and the Geneva Conventions
Act gives protection against such deportation during occupation which has not
validly come to an end, and, therefore, no offence was committed by him.
The argument overlooks one cardinal principle
of International Law and it is this Rev. Father Monteiro by his declaration retained
his Portuguese nationality. His sojourn in India was subject to such laws as
existed in India in general and in Goa in particular. It cannot be doubted that
the reception and residence of an alien is a matter of discretion and every
State has, by reason ,of its own territorial supremacy, not onlythe legal right
but also 93 the competence to exclude aliens from the whole or any part of its.
territory. This proposition is so well-grounded in International Law that every
country has adopted the passport system, which document certifies nationality
and entry into any State is only possible with the concurrence of that State.
Again a State exercises territorial supremacy over persons in its territory,
whether its own subjects or aliens -and can make laws for regulating the entry,
residence and eviction of aliens. Therefore, the application of the Foreigners
Act, the Registration of Foreigners Act and the Orders passed under them, to
Father Monteiro was legally competent. A
considerable body of writers on International Law support the proposition and
it is sufficient to refer only to Oppenheim (Vol. 1) pp.
675/676 and Brierly Law of Nations p. 217. If
authority were needed the proposition would be found supported in the decision
of the Privy Council in Musgrove v. Chun Teeong Toy(1). The Lord Chancellor in
that case denied that an alien excluded from British territory could maintain
an action in a British Court to enforce such a right.
This proposition being settled, Mr. Gardner
sought support for his plea from the provisions of the Geneva Conventions Act
of 1960. That Act was passed to enable effect to be given to the International
Conventions done at Geneva in 1949. Both India and Portugal have signed and
ratified the Conventions. Mr. Gardiner relies on the provisions of the Fourth
Schedule relative to the protection of certain persons in time of war. Ho
refers in particular to Articles 1, 2, 4, 6, 8, 47 and 49. By Arts. 1 and 2
there is an undertaking to respect and ensure respect for the Conventions in
all circumstances of declared war or of any other armed conflict even if the
state of war is not recognised by one of the parties and to all cases of partial
or total occupation of the territory of a High Contracting Party even if the
occupation meets with no armed resistance.
Article 4 defines a protected person and the
expression includes those who at a given moment and in any manner whatsoever,
find themselves, in case of conflict or occupation, in the hands of a Party to
the conflict or Occupying Power of which they are not nationals. Article 6 then
lays down the beginning and end of application of the Convention.
The Convention applies from the outset of any
conflict or occupation. In the territory of Parties to the conflict, the
application of the Convention ceases on the general close of Military
operations. In the case of occupied territories it ceases one year after the
general close of military operations but the occupying Power is bound for the
duration of occupation, to the extent that such Power exercise the functions of
Government in such territory, by Arts. 1-12, 27, 29-34, 47, 49, 51, 52, 53, 59,
61-73 and 143.
(1)  A. C. 2 94 We next come to Arts.
47 and 49 which are the crux of the matter and are relied upon for the
protection. Mr. Gardner points out that under Art. 48 even protected persons
may in no circumstance renounce in part or in entirety the rights secured to
them by the Conventions. The case, therefore,, depends on whether Arts. 47 and
49 apply here. We may now read Arts. 47 and 49 "47. Protected persons who
are in occupied territory shall not be deprived, in any case or in any manner
whatsoever, of the benefits of the present Convention by any change introduced,
as the result of the occupation of a territory, into the institutions or
Government of the said territory, nor by any agreement concluded between the
authorities of the occupied territories and the Occupying Power, nor by any
annexation by the latter of the whole or part of the occupied territory."
"49. Individual or mass forcible transfers, as well as deportation of
protected persons from occupied territory to the territory of the Occupying
Power or to that of any other country, occupied or not, are prohibited,
regardless of their motive.
Nevertheless, the Occupying Power may
undertake total or partial evacuation of -a given area if the security of the
population or imperative military reasons so demand.
Such evacuation may not involve the displacement
of protected persons outside the bounds of the occupied territory except when
for material reasons it is impossible to -avoid such displacement. Persons thus
evacuated shall be transferred back to their homes as soon as hostilities in
the area in question have ceased.
The Occupying Power undertaking such
transfers or evacuations shall ensure, to the greatest practicable extent, that
proper accommodation is provided to receive the protected persons, that the
removals are effected in satisfactory conditions of hygiene, health, safety and
nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any
transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain
protected persons in an area particularly exposed to the danger of war unless
the security of the population or imperative military reasons so demand.
95 The Occupying Power shall not deport or
transfer parts of its own civilian population into the territory it
occupies." The point of difference between the parties before us in
relation to Art. 47 is whether the occupation continues, the annexation of the
territory notwithstanding; -and in relation to Art. 49 whether the order of the
Lt. Governor amounts to deportation of a protected person.
Mr. Gardner's submissions are : the order
that has been made is a deportation order and it is therefore ultra vires the
Geneva Conventions. These Conventions create individual rights which cannot
even be waived. So long as occupation continues ,these rights are available and
the Geneva Conventions must not be looked at in isolation but read in
conjunction with International Law as part of the positive law. They should not
be abandoned lightly. According to him, conquest was a method of acquiring
territory in the past but after the Covenant of the League of Nations, the
Charter of the United Nations and the General Treaty for the Renunciation of
War, the acquisition of territory in International Law by the use of force does
not confer any title.
Occupation, therefore, can only be of terra
nullins, not now possible. He invokes the rule in Heydon's(1) case and says
that the history of the making of the Geneva Conventions, shows that this was
precisely the mischief sought to be met and the Conventions now become a part
of the laws of India through Parliamentary Legislation. He concedes that the
war of liberation of Goa and the annexation were lawful but he contends that
annexation does not deprive protected persons of the protection. According to
him, once there is military action and occupation, occupation cannot cease by a
unilateral act of annexation by incorporating the territories of Goa with
India. If India did not care to be bound by the Conventions, there was a
'Method of denunciation in Art. 158 but since the Convention is registered
159 even denunciation at a late stage was not
possible. He relies upon Art. 77 and says that 'Liberated' means when the
occupation comes to an end. The amendment of the Constitution only legalises
annexation so far as India is concerned but in International Law the territory
remains occupied. The occupation is not at an end and it cannot be brought
about unilaterally. The words of Art. 47 themselves are clear enough to
establish this. In short, the contention is that occupation does not come to
end by annexation and, therefore, the protection continues till there is either
cession of the territory or withdrawal of the Occupying Power from the territory,
both of which events have not taken place. In support of his propositions be
relies upon Dholakia (International Law) (1) (1584) 3 Rep. 76.
96 pp. 180, 181, 293; Oppenheim International
Law (Vol. 1) 7th Edn. pp. 574 et seq.; R. Y. Jennings : The Acquisition of
Territories in International Law pp. 53-56, 67.
The contention on behalf of the State is that
by occupation is meant occupation by armed forces or belligerent occupation and
occupation comes to an end by conquest followed by subjugation. Reference is
made to many works on International Law. We have to decide 'between these two
This is the first case of this kind and we
took time to consider our decision. We are of opinion that the pleas of Mr.
Gardner that the Geneva Conventions Act makes dispunishable the conduct of Rev.
Father Monteiro, must fail.
To begin with, the Geneva Conventions Act gives
no specific right to anyone to approach the Court. The Act was passed under
Art. 253 of the Indian Constitution read with entries 13 and 14 of the Union
List in the Seventh Schedule to implement the agreement signed and merely
provides for certain matters based on Geneva Conventions. What method an
aggrieved party must adopt to move the, Municipal Court is not very clear but
we need not consider the point because of our conclusions on the other parts of
the case. We shall consider the Conventions themselves. Before we consider the
Geneva Conventions, which form Schedules to the' Act, it is necessary to look
at the Act itself to see what rights it confers in relation to the Conventions,
and whether it gives -a right to Rev. Father Monteiro in the present circumstances
to invite the Court's opinion. Being a court of law, this Court must be
satisfied about its own jurisdiction, the foundation for which must be in some
Prior to the Geneva Conventions Act of 1960
there were the Geneva Convention Act of 1911 and the Geneva Conventions
Implementing, Act of 1936. We need not consider them because by the twentieth
section of the present Act, the former ceases to have effect as part of the law
of India and the latter is repealed. The Act is divided into five Chapters.
Chapter I deals with the title and extent and commencement of the Act and gives
certain definitions. Of these, the important definition is that of 'protected
internee' as a person protected by the Fourth Convention and interned in India.
Chapter 11 then deals with punishment of offenders against the Conventions and
the jurisdiction of courts to deal with breaches by punishment them. Chapter
III lays down the procedure for the trial of protected persons, for offences
enabling a sentence of death or imprisonment for a term of two years or more to
be imposed and for appeals etc. Chapter IV prohibits the use of Red Cross and
other emblems without the approval of Central Government and provides for a
97 Chapter V gives power to the Central
Government to make rules. The Act then sets out the Conventions in its
schedules and the Conventions which are four in number are set out in as many
Schedules to the Act.
It will thus be seen that the Act by itself
does not give any special remedy. It does give indirect protection by providing
for penalties for 'breaches of Convention. The Conventions are not made
enforceable by Government against itself nor does the Act give a cause of
action to any party for the enforcement of Conventions. Thus there is only an
obligation undertaken by the Government of India to respect the Conventions
regarding the treatment of civilian population but there is no right created in
favour of protected persons which the Court has been asked to enforce.
If there is no provision of law which the
courts can enforce the court may be powerless and the court may have to leave
the matter to what Westlake aptly described as indignation of mankind.
The appellant has, however, sought the aid of
the Geneva Conventions to establish that he could not be compelled to leave Goa
and thus committed no offence. We may, therefore, say a few words about the
Geneva Conventions, particularly Schedule IV, which deals with the protection
of civilian persons in time of war. In the past protection of civilian
population was inadequately provided in Conventions and treaties. The four
conventions came at different times, the oldest in 1864 and the last in 1949.
The Fourth Hague Convention of 1907 contained Arts. 42-56, but this protection
was restricted to occupation by an enemy army.
The Regulations merely stated the principles
and enjoined maintenance of law and order and regard for family rights, lives
of persons and private property, and prohibited collective punishments. In
effect, these were confined to the 'forward areas of war' and did not apply
when 'total war' took place and the civilian population was as much exposed to
the dangers of war as the military. The example of the First World War showed
that civilian population was exposed to exactions. At the time when the Hague
Regulations were done, it was thought that such matters as non-internment of
the nationals of the adversary would be observed. But the First World War
proved to the contrary.
It was in 1921 that the International
Committee of the Red Cross produced a draft Convention which among other things
enjoined that the inhabitants of the occupied territory should not be deported
and civilians in enemy territory must be allowed to return to their homes
unless there were reasons of state security and the internees must receive the
same treatment as prisoners of war. The Diplomatic Conference of 1929 and the
Red Cross Conference of 1934 made useful studies but action scheduled to take
place 98 in 1940 could not be implemented as the Second World War broke out.
Although the belligerent countries had accepted that the 1929 Convention
regarding prisoners of war was applicable to civilians, the lessons of the
Second World War were different. We know the treatment of civilians by Germany
and the hurried deaths and privations inflicted on them. War, though outlawed,
continues still and as President Max Huber said:
"War, as it becomes more and more total,
annuls the differences which formerly existed between armies and civilian
populations in regard to exposure to injury and danger." At the
termination of the last war the International Red Cross Conference at Stockholm
prepared a draft in 1948, which became the basis of the deliberations of the
Diplomatic Conference which met at Geneva from April 21 to August 12, 1949 and
the present Convention was framed. The Regulations were not revised or
incorporated. The 1949 Conventions are additional to the Regulations and it is
expressly so laid down in Art. 154 of the Geneva Conventions.
The Hague Regulations, Arts. 42-56, contained
some limited and general rules for the protection of inhabitants of occupied
territory. The Regulations are supplementary.
Regulations 43 and 55 which have no
counter-part in the Geneva Conventions must be read. They are not relevant here
Similarly, as there is no definition of 'occupation' in the Geneva Conventions,
Art. 42 of the Regulation must be read as it contains a definition :
"42. A territory is considered as
occupied when it finds itself in fact placed under the authority of a hostile
The Regulations further charge the authority
having power over the territory to take all measures to establish and assure
law and order. The Regulations generally charged the occupying power to respect
the persons and property of the inhabitants of the occupied territory. There
was no provision showing when occupation commenced and when it came to an end.
It is because of this omission that it is claimed in this case that occupation
continues so long as there is no cession of the territory by the conquered or
withdrawal by the _conqueror and that till then the protection of the Geneva
Conventions obtains. However, Art.
6, which provides about the beginning and end
of the application of the Conventions throws some light on this matter.
The question thus remains, what is meant by
occupation ? This is, of course, not occupation of terra nullins but something
'else. Since there is no definition of occupation in the Geneva 99 Conventions,
we have to turn to the definition in the Hague Regulations. Article 154 of the
4th Schedule reads:
"154. Relation with the Hague
In the relations between the Powers who are
'bound by the Hague Conventions respecting the Laws and Customs of War on Land,
whether that of 29th July, 1899, or that of 18th October, 1907, and who are
parties to the present Convention, this last Convention shall be supplementary
to Sections 11 and 111 of the Regulations annexed to the above-mentioned
Conventions of the Hague." The definition of 'occupation' in the
Regulations must be read since the Regulations are the original rules and the
Conventions only supplement the Regulations. We have -already quoted the
definition and it shows that a territory is considered as occupied when it
finds itself in fact placed under the authority of a hostile army. This means
that occupation is by military authorities. In the Justice case(1) it was
stated that the laws of belligerent occupation apply only to an occupation
during the course of actual warfare and that once the enemy has been totally
defeated those laws do not apply to the ensuing occupation.
The question thus resolves itself into this :
Is occupation in Art. 47 belligerent occupation or occupation which continues
after the total defeat of the enemy ? In this connection courts must take the
Facts of State from the declaration of State authorities. Military occupation
is a temporary de facto situation which does not deprive the Occupied Power of
its sovereignty nor does it take away its statehood. All that happens is that
pro tempore the Occupied Power cannot exercise its rights. In other words,
belligerent occupation means that the Government cannot function and authority
is exercised by the occupying force.
Annexation, on the other hand, occurs when
the Occupying Power acquires and makes the occupied territory as its own.
Annexation gives a de jure right to
administer the territory. Annexation means that there is not only possession
but uncontested sovereignty over the territory.
As Greenspan(2) put it (p. 215) military
occupation must be distinguished from subjugation, where a territory is not
only conquered, but -annexed by the conqueror.
There is, however, a difference between true annexation
on the one hand and premature annexation, or as it is sometimes called
'anticipated annexation', on the other. Jurists regard annexation as premature
so long as hostilities are continuing and there is an opposing army in the
field even if the Occupied Power is (1) United States V. Attstoctter, et. al.
(1947) U. S.
Military Tribunal, Nucmberg L. R. 3 T. W. C.
(2) The Modern Law of Land Warfare.
100 wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation. True
annexation is only so when the territory is conquered and subjugated [see
Oppenheim International Law. (7th Edn.) pp. 846-847. (Vol. 1) 566 (Vol. 1), pp.
448/52 (Vol. 11), 430439 (Vol. 11) and 599 et seq (Vol. 11), Greenspan (ibid) pp.
215 et seq 600-603; Gould Introduction to
International Law pp. 652-656, 662-663; Brierly Laws of Nations p..
The Conventions rightly lay dowin that
annexation has no effect on the protection. But they speak of premature or
anticipated annexation. Premature or anticipated annexation has no effect. Such
a plea was negatived for the same reason by the Nuremberg Tribunal. In fact,
when the Convention itself was being drafted the experts were half inclined to
add the word " alleged' before 'annexation' in Art. 47 to distinguish
between annexation following conquest and subjugation and annexation made while
hostilities are going on. Subjugation puts an end to the state of war and
destroys the source of authority of the existing Government.
In subjugation, which is recognised as one of
the modes of acquiring title, not only the de facto but also the de jure title
passes to the conqueror. After subjugation the inhabitants must obey the laws
such as are made and not resist them.
Thus the principle which is accepted is that
the Occupying Power must apply the Convention even when it claims during
conflict to have annexed the occupied territory. However, when the conflict is
over and there is no hostile army in the field, annexation has the effect of
creating a title to the territory. It may beasked why does Art. 6 then mention
a period of one year ? The reason given is that if the Occupied Power turns
victorious the land would be freed in one year and if the Occupying Power
remains victorious, as hostilities cease, strong measures against the civilian
population are no longer necessary. In this, as in other laws, a line is drawn
arbitrarily -and it is at the end of one year. Otherwise also, occupation,
which means belligerent occupation, comes to an end when hostilities cease and
the territory becomes a art of the Occupying Power. Annexation may sometimes be
peaceful, as for example, Texas and Hawaiian Islands were peacefully annexed by
the United States, or after war, -as the annexation of South Africa and Orange
Free State by Britain.
The question, when does title to the new
territory begin, is not easy to answer. Some would make title depend upon
recognition. Mr. Stimson's doctrine of non-recognition in cases where a state
of things has been brought about contrary to the Pact of Paris was intended to
deny root of title to conquest but when Italy conquered Abyssinia, the conquest
was recognised because it was 101 thought that the state of affairs had come to
stay. Thus, although the United Nations Charter includes the obligation that
force would not be used against the territorial integrity of other States (Art.
2 para 4), events after, the Second World War have shown that transfer of title
to territory by conquest is still recognised. Prof. R. Y. Jennings poses the
question : What is the legal position where a conqueror having no title by
conquest is nevertheless in full possession of the territorial power, and not
apparently to be ousted ?" He recommends the recognition of this fact
between the two States. If cession after defeat can create title, occupation
combined with absence of opposition must lead to the same kind of title.
In the present case the facts are that the
military engagement was only a few hours' duration and then there was no
resistance -at all. It is hardly necessary to try to establish title by history
traced to the early days as was done in the Minquiers and Ecrencs(1) case. Nor
is there any room for the thesis of Dr. Schwarzenberger (A Manual of
International Law, 5th Edn. p. 12 that title is relative and grows with
recognition . True annexation followed here so close upon military occupation
as to leave no real hiatus.
We can only take the critical date of true
and final annexation as December 20, 1961 when the entire government and administration
were taken over and there was no army in occupation -and no army in opposition.
The occupation on December 20, 1961 was neither belligerent occupation nor
anticipated occupation, but true annexation by conquest and subjugation. It
must be remembered that Mr. Gardiner concedes that the annexation was lawful.
Therefore, since occupation in the sense used in Art. 47 had ceased, the
protection must cease also. We are, therefore, of opinion that in the present
case there was no breach of the Geneva Conventions.
We were invited to look at the matter from
another point of view, namely, even if the protection against deportation
envisaged by Arts. 47 and 49 were taken to be continued, what is the remedy
which the Municipal Courts can give ? It was said, the act was an Act of State.
In view of what we have already held it is not necessary to pronounce our
opinion on this argument.
The national status of subjects of the
subjugated state is a matter for the State, and courts of law can have no say
in the matter. As Oppenheim (Vol. 1 p. 573) puts it "The subjugating state
can, if it likes allow them to emigrate, and to renounce their newly acquired
citizenship, and its Municipal Law can put them in any position (1)1953 (I. C.
102 it likes, and can in particular grant or
refuse them the same rights as those which its citizens by birth enjoy."
The Geneva Conventions ceased to apply after December 20, 1961. The Indian
Government offered Rev. Father Monteiro Indian nationality and citizenship which
he refused and retained his Portuguese nationality. As a Portuguese national he
could only stay in India on taking out a permit.
He was, therefore, rightly prosecuted under
the law applicable to him. Since no complaint is made about the trial as such,
the appeal must fail. It will be dismissed.
G.C. Appeal dismissed.