Abstract
The origin of the problem is wrapped in history. Some knowledge of that history is, therefore, necessary to an understanding of the present situation. Outside Asia, ignorance of the actual, historical development of this continent has often led to misconceptions and incorrect appraisals of the significance of what is taking place today.
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Reference
Brierly, The Law of Nations 1 (1949). 1 Oppenheim, International Law 48 (8th ed. 1955 ).
Id. at 72.
These revolutionary theories are — as far as Indonesia is concerned — connected with the names of the late J. C. van Leur, Professor C. C. Berg (Leyden) and further Professor G. J. Resink (Djakarta). See also Van der Kroef: “On the Writing of Indonesian History,” 31 Pac. Aff. 352–371 (1958).
Van Leur, Indonesian Trade and Society. Essays in Asian Social and Economic History, 150 (1955).
Van Leur has made himself one of the first outspoken critics of previous historical accounts when he stated that colonial historians who had at first developed an Indocentric approach later changed their attitudes and “with the arrival of ships from Western Europe, the point of view is turned a hundred and eighty degrees, and from then on the Indies are observed from the deck of the ship, the ramparts of the fortress, the high gallery of the trading house.” Van Leur, Indonesian Trade and Society. Essays in Asian Social and Economic History, Bookreview by C. R. Boxer in 8 Indonesië (The Hague) 426 (1955).
Boxer, supra note 5, at 428, note 3.
Professor Resink of Djakarta, who makes it his speciality to study the legal aspects of the early contacts between Europeans and Indonesians stated that, as a result of these misconceptions there was in the West naturally no place for the international law history of Indonesia during the many centuries preceding the colonial time. Resink, “Onafhankelijke Vorsten, Rijken en Landen in Indonesië tussen 1850 en 1910 (Independent princes, principalities and countries in Indonesia between 1850 and 1910), 9 Indonesië (The Hague) 265–296 at 293 (1959).
Richard Wright in his The Colour Curtain 69 (1956) describes how some representatives of the most powerful newsagencies in the world at first looked at this, for Asia and Africa most significant event, with neither a sense of history nor an understanding of the attitudes of the peoples. He mentioned how some of these newspapermen had made a list of all the delegates going to Bandung and had checked them all according to their political leanings and had come to the conclusion that the West would emerge victorious from its clash with China’s evil genius Chou En-lai.
In the case of the Indonesian general elections the attitude of observers also led them astray. Besides ignoring the history of this country they were perhaps also deceived by their own wishful thinking and by an unwarranted reliance on personalities, parties and statistics. Such an attitude, already unsound in Western countries, was certainly wrong in the East.
Political observers of long experience“ (including some Indonesians) were rather disturbed by the election results since it had been ”virtually axiomatic“ that the liberal Masjumi (Moslem) party would gain a resounding victory in this most populous Moslem country of the world. Robert C. Bone Jr., ”The Indonesian Elections,“ in ”News and Views on World Affairs“ (Canadian Institute of Int. Aff.). vol. XIX, No. 7, Oct. 24, 1955. Most of these observers did not expect the Communists to come out very well, thereby disregarding the fact that communism does not (yet) have the odium which it has in western countries. Moreover they also overlooked the ability of the Communists to impress the people with their election campaign.
The results startled these observers. The Masjumi Party won only 57 out of a total of 260 seats in the House of Representatives, sharing the lead with the Nationalist Party which, although expected to trail badly (N.r. Times, Sept. 27, 1955), won the same amount of seats. Third came the more orthodox Moslem party, the Nandatul Ulama, with 45 seats. But the greatest surprise was perhaps the Communist Party which defied the forecasts and became one of the “Big Four” in the House with 39 seats. Id. Sept. 27, 30 and Oct. 5, 1955; also N.R.C. Oct. 7, 1955.
Apparently, the Indonesian example (note 9) did not shake the faith of some observers in their own method of assessing the political leanings of the population. Only half a year later they had another opportunity to report an identical event, namely the second general elections in Burma. Again they expected generally that the main opposition party (the NUF) would do badly against the government party (the AFPFL). Again the results showed how they blundered. Although the AFPFL indeed won easily, the NUF — which was even expected to lose some of its 12 seats — managed to win four times that number (48 seats). N. r. Times, May 4, 1956.
Nehru and Sjahrir are perhaps the best known examples.
Van Mook, The Stakes of Democracy in SE Asia 27–28 (1950). See also Korn, “Oosterse Visie op Westers Bewind” (Eastern view on Western rule), 113 Bijdragen tot de Taal-, Land-en Volkenkunde 16–31 at 30–31 (1957).
Kohn, The Idea of Nationalism 3 (1951).
Cf. Prof. Korn,emeritus professor of Indonesian adat law (= mainly customary law) at Leyden University, who contends (supra note 12 at 27) that Indonesian nationalism in fact existed for centuries. In its early form its main theme was the re-establishment of the old order before the arrival of the Dutch. In its recent form nationalism is said to concern the idea of an independent national state.
See the various articles of Prof. Sastri in the Indian Yearbook of International Affairs (infra note 17 and 18) and of Prof. Resink, supra note 7.
This is again one of Van Leur’s contentions which, though novel in the 1930’s — has now become almost generally accepted. Cf. Boxer supra note 5, at 425, 427.
See Sastri, International Law and Relations in Ancient India, 1 I.T.I.A. 99 (1952); Vlekke, Nusantara — A History of the East Indian Archipelago 8 (1945); Maung Maung, Burma in the Family of Nations 3, 1956.
Vlekke, op. cit. supra note 17, at 53–55 (the Empire of Mataram) and 30–31 (the Empire of Shrivijaya); Maung Maung, op. cit. supra note 17, at 13 (the Alaungpaya dynasty); Sastri, supra note 17, at 101; Sastri, “Inter-State Relations in Asia” (hereinafter cited as “Inter-State Rel.”) 2 I. Y’.I.A. 138 (1953); cf Korn, supra note 12, at 27, on the frequent emergence of persons who claimed to be the awaited leader.
Sastri, Inter-State Rel., supra note 18, at 138; Vlekke, op. cit. supra note 17, 49–50, 54–56.
Sastri, Inter-State Rel. supra note 18, at 136.
Id. at 143.
However, that these token tributes were not completely without legal significance has become clear in more recent times during the Burma-Yunnan border question (see chapter III) and in the dispute between India and China with respect to the Tibet borderline. Sastri Inter-State Rel. supra note 18 at 141; Vlekke, op. cit. supra note 17, 49–50.
F. C. Cole, The Peoples of Malaysia 27 (1945).
Maung Maung op. cit. supra note 17, at 11.
Vlekke, op. cit. supra note 17, at 49.
Cole, op. cit. supra note 23 at 17.
Vlekke, op. cit. supra note 17, at 13, 14, 17; see also Krom, Hindoe-,7avaansche Geschiedenis 415–428 (1931).
Stapel, Geschiedenis van Ned. Indu (History of the Neth. Indies) 278 (1938); Steiger, A History of the Far East 195–196 (1936); but cf. Berg, “De Sadeng Oorlog en de Mythe van Groot-Majapahit,” (The Sadeng War and the Myth of Greater Majapahit) 5lndonesië412–413 (1952).
For the significance of Buddhism and Islam in the Asian political arena, Vlekke, op. cit. supra note 17, at 17–71; Sastri, Inter-State Rel. supra note 18, at 144; Cole, op. cit. supra note 23, at 23.
Oppenheim, International Law sect. 37b. (8th ed. 1955 ).
Ibid.
It must be admitted, however, that it is not entirely clear whether Oppenheim includes in “the ancient world” other countries outside Europe. For, if he was dealing with ancient Europe only (and this may have been his intention in the quoted passage) then the criticism launched above (as well as that of Prof. Sastri) does not hold.
See also the identical views of non-Asians in supra note 3–7.
Viswanatha, International Law in Ancient India 5–12 (1925).
Sastri, Inter-State Rel., supra note 18, at 145.
A non-Indian author from Asia, on the other hand, states unequivocally that it was not until the 19th century that Asian states were admitted into the Family of Nations. He apparently accepted the traditional concept that the “Family of Nations” was a strictly European product to which outside nations have only been admitted after reaching an advanced stage of development. Maung Maung, op. cit. supra note 17, at 1.
Cf. Supomo, “The Future of Adat-Law in the Reconstruction of Indonesia,” in Thayer, Southeast Asia in the Coming World 220–226 (1953).
Panikkar, Asia and Western Dominance 28 (1953).
Barthold, La Découverte de l’Asie 111 (1947); Latourette, A Short History of the Far East 61 (1946).
Panikkar, op. cit. supra note 38, at 50–53; Latourette, op. cit. supra note 39, at 60.
Lindley, The Acquisition and Government of Backward Territories 91–92 (1926).
Van Moak, The Stakes of Democracy in South East Asia 42–49 (1950).
Van Leur in bookreview of Stapel, Geschiedenis van Ned. Indu, in 79 TUdschrift Ind. T.L.V. 591 (1939); Panikkar, op. cit. supra note 38, at 42.
Panikkar op. cit. supra note 38, at 44–45, 93.
Lindley, op. cit. supra note 41, at 92–99.
Id. at 98.
See for differences with the German and Portuguese East India Company, Lindley, supra note 41, at 103.
Id. at 99.
Supra at 40.
Even this assumption with regard to Africa has now been questioned. Cf. Prof. Herbert Passin: “What is Africa?” in World Assembly of Youth Forum 3 (Spring 1959); Herbert Passin, “The Ancient Jar of Dahomey,” 13 Encounter 37–38 (Sept. 1959).
Panikkar, op. cit. supra note 38, at 36.
H. A. Smith, Great Britain and the Law of Nations 30 (1932).
Schwarzenberger, International Law, vol. I, chapter I V (1957).
Lindley, op. cit. supra note 41, at 11.
Smith, op. cit. supra note 52, at 15.
Lindley, op. cit. supra note 41, at 18.
Oppenheim, op. cit. supra note 30, at 48–49.
Schwarzenberger, “The Standard of Civilization in International Law,” 8 Current Legal Problems 219 (1955).
Brierly, The Law of Nations at 1 (1949); Oppenheim, op. cit. supra note 30 at 4 (7th ed); 1 Hyde, International Law 1, note 1 (1951).
Schwarzenberger, op. cit. supra note 58 at 218.
Ibid.
Smith, op. cit. supra note 52, at 30.
U.N., 2 Reports of International Arbitral Awards 845 (1949).
Author’s italics.
Supra note 63.
Smith, op. cit. supra note 52, at 30.
Resink, “Onafhankelijke Vorsten, Rijken en Landen in Indonesië tussen 1850 en 1910” (Independent Kings, Kingdoms and Countries in Indonesia between 1850 and 1910), 9 Indonesië 265–296 at 290 (1956).
Vlekke, op. cit. supra note 17 at 49, 88, 90, 101.
Panikkar, op. cit. supra note 38, at 36.
Van Leur, in bookreview, 79 Tijdschrift Ind. T.L.V. supra note 46, 589–595 at 591 (1939), on the Asian equality in guns and commercial policies; Panikkar, op. cit. supra note 38, at 36–52.
Alders, Internationale Rechtspraak tussen Indonesische Rijken en de V.O.C. tot 1700 (International Administration of Justice between Indonesian Kingdoms and the V.O.C. till 1700) 7 (1955). According to Alders at the time the modern concept of states was not known anywhere else either.
Lindley, op. cit. supra note 41, at 23.
See also: Van Kan, “De Rechtstitels der Compagnie” (The Legal Titles of the Dutch East Indies Company) in 5 Mededelingen der Ned. Akademie van Wetenschappen 377–441 at 386 (1942).
P.C.I.J., ser. AFB no. 53, at 47 (1933).
See Van Leur, supra note 43, at 591.
Speaking about the American Indian, Justice Story remarked on the ambiguity of the Western attitudes in their contacts with each other as well as with the native peoples:
The Eurpeans nations… claimed an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by, the Indian Natives, but as a right acquired by discovery… The title of the Indians was not treated as a right of propriety and dominion, but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. The territory over which they wandered, and which they used for their temporary and fugitive purposes, was in respect to Christians, deemed as if it were inhabited only by brute animals…“ Lindley, op. cit. supra note 41, at 29.
See Korn, “Oosterse Visie op Westers Bewind” (Eastern View on Western Rule) 113 B//dragen tot de Taal-, Land-en Volkenkunde 18–20 (1957).
Lindley, op. cit. supra note 41, at 47.
The brief and factual nature of this historical account makes specific references to sources often desirable. For a more detailed discussion reference may be made to the following books which have been consulted throughout this chapter:
Burma:
Hall, A History of SE Asia (1955).
Maung Maung, Burma in the Family of Nations (1956).
Panikkar, Asia and Western Dominance (1953).
Human Relations Area Files, Handbook on Burma (1956).
Ceylon:
Codrington, A Short History of Ceylon (1947).
Perera, Additional Chapters to H. W. Codrington’s A Short History of Ceylon (1952). India:
Majumdar and others, An Advanced History of India (1950).
Griffiths, Modern India (1957).
Panikkar, Asia and Western Dominance (1953).
Moreland and Chatterjee, A Short History of India (1937).
Indonesia:
Yamin, Proklamasi dan Konstitusi Republik Indonesia (1951).
Hall, A History of SE Asia (1955).
Vlekke, Nusantara, a History of the East Indian Archipelago (1944).
Kahin, Nationalism and Revolution in Indonesia (1952).
Human Relations Area Files, Handbook on Indonesia (1952).
Resink describes how for Indonesia complete Dutch domination was only established in the last forty or fifty years. Resink, “Veronachtzaamde Uitspraken” (Neglected Decisions), 8Indonesiff 1–25 at 1 and 19 (1955).
Hall, op. cit. supra note 78, at 615. With respect to India, Panikkar. op. cit. supra note 78, gives as the exact date 1848.
It is realized here that such terms as mother country, motherland, parent state have a certain emotional appeal, but the use of these terms is only adopted because of their universal application. Moreover, it is difficult to find less emotionally charged terms in current speech.
Hall, op. cit. supra note 78, at 619.
Griffiths, op. cit. supra note 78, at 66; Kennedy, The Ageless Indies I X (1942).
Perera, op. cit. supra note 78, at 224.
Moreland, op. cit. supra note 78, at 429.
Ibid.
Panikkar, op. cit. supra note 78, at 265; Maung Maung op. cit. supra note 78, at 82–88; Perera, op. cit. supra note 78, at 222.
Griffiths, op. cit. supra note 78, at 66–67.
Lumby, The Transfer of Power in India 11 (1954).
Ibid.
Ibid.
Van Mook, The Stakes of Democracy in Southeast Asia 7 (1950).
These ever-returning ambitions of independence-hungry peoples are today once more underlined by the claims of African peoples who, though having had fewer opportunities than Asian nations to develop themselves administratively, still demand independence “immediately.”
Van Asteck, “International Law and Colonial Administration,” 39 Trans. Grot. Soc. 6 (1953).
Hall, op. cit. supra note 78, at 633.
Id. at 616.
E g. Panikkar speaks consistently about the “european civil war” of 1914–1918, a term which seems technically incorrect in this case, since the concept of civil war in international law means a war between population groups within one and the same state. 2 Oppenheim, International Law 209 (7th ed. 1952 ).
Panikkar, op. cit. supra note 78, at 260.
Point 5 of Wilson’s Fourteen Points reads:
A free, open-minded and absolutely impartial adjustment of all colonial claims based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the population concerned must have equal weight with the equitable claims of the government whose title is to be determined. Seymour, Woodrow Wilson and the World War 234 (1921).
Hall, op. cit. supra note 78, at 638.
Maung Maung, op. cit. supra note 78, at 83–84.
Panikkar, op. cit. supra note 78, at 269; Griffiths, op. cit. supra note 78, at 76.
Moreland, op. cit. supra note 78, at 461–462.
Hall, op. cit. supra note 78, at 628; Griffiths, op. cit. supra note 78, at 76, Panikkar, op. cit. supra note 78, at 272.
Lumby, op. cit. supra note 89, at 17–19.
Perera, op. cit. supra note 78, at 222.
Vlekke, op. cit. supra note 78, at 346.
Panikkar, op. cit. supra note 78, at 273.
Oppenheim, International Law at 17 (3rd ed. 1920).
This period should be clearly distinguished from the era of the establishment of the colonial empires (supra at 61). As has been pointed out there, the Asian countries, in spite of Western claims, were still independent. In the period now under discussion by “colony” is meant a completely subjected territory.
Van Eysinga as quoted in Fievez de Malines Van Ginkel, Overzicht van de Internatiomal Rechtel/ke Betrekkingen van Nederlandsch Indie 1850–1922 (Review of the International Relations of the Netherlands Indies) 4 (1924).
Van Asbeck, Onderzoek naar de Juridische Wereldbouw 3 (1916).
Oppenheim, International Law 115 (7th ed. 1952).
Van Asbeck, op. cit. supra note 112, at 6, 244.
Id. at 7.
Panikkar, op. cit. supra note 78, at 268.
Infra at 64–65.
Moresco, “Les Rapports de Droit Public Entre la Métropole et les Colonies, Dominions et Autres Territoires d’Outre-Mer,” 55 Hague Recueil 511 (1936).
Id. at 515.
Van Asbeck, op. cit. supra note 112, at 7.
Keith, The Governments of the British Empire 20–25 (1935).
Id. at 19–20.
Van Asbeck, op. cit. supra note 112, at 4.
Id. at 200.
Id. at 9–12.
In a more recent lecture Van Asbeck dealt with another aspect of these two kinds of protectorates. The international protectorates were established in native states with a relatively high level of state organization and cultural sophistication, whereas the colonial protectorates, especially in Africa and Oceania, were regarded as not yet having reached this level. Van Asbeck, Samenhang van Internationaal en Koloniaal Recht (Relationship between International and Colonial Law) (1931).
Van Asbeck, op. cit. supra note 112, at 191.
Id. at 216.
Id. at 240.
See Van Panhuys, “The International Aspects of the Reconstruction of the Kingdom of the Netherlands in 1954,” 5 Neth. I.L.R. 4–5, 9 (1958).
See for the distinction between sovereign state, full membership of non-sovereign states to international organizations, and party to a convention, Van Panhuys id. at 4–5.
Lanka Sundaram, India and the ILO in Zimmern, 1 India analysed, 68 (1933); Van Panhuys, supra note 130, at 4.
Fievez, op. cit. supra note 111, at xi.
Van Asbeck, op. cit. supra note 112, at 256.
Id. at 295.
Fievez, op. cit. supra note 111 at xi.
Ibid.
Fievez, op. cit. supra note 111, case 282, 283.
Van Asbeck, op. cit. supra note 112, at 267.
See id. at 307.
Keith, op. cit. supra note 121, at 87.
Id. at 107.
Supra at 62 where it was also contended that Oppenheim’s view on the anomalous position of a colony was incorrect.
Schwarzenberger, “The Protection of Human Rights in British State Practice,” 1 Current Legal Problems 153 (1948).
Cf for a new and unique development in the relationship between the Netherlands and her former colonies of Surinam and the Antilles, Van Panhuys, supra note 130, at 20–31.
Hall, A History of SE Asia 683 (1955).
Perera, Additional Chapters to H. W. Codrington’s a Short History of Ceylon 242 (1952).
Hall, op. cit. supra note 146, at 687–690; Maung Maung, Burma in the Family of Nations 91 (1956).
Maung Maung, op. cit. supra note 148, at 97.
Id. at 96.
Id. at 97.
Supra note 99.
Since the legal aspects of the Dutch-Indonesian conflict, which will be dealt with later on, are closely related to the historical facts of that period, a more extensive historical account of that time will be postponed till we are treating the legal part of this question (see infra at 93).
Von Glahn, The Occupation of Enemy Territory 27 (1958); Briggs, The Law of Nations 1024 (1952).
There is another significant facet to the colonial relationship which, however, is only partly relevant to the present discussion. After the occupation of West-Europe, countries like Holland and Belgium were said to remain as international entities since the legitimate government still administered vast colonial territories. Ph. M. Brown, “Sovereignty in exile,” 35 A.J.LL. 666–668 at 667 (1941). Such an opinion implies, however, that if the colonies are also occupied (as in the case of Indonesia, with the exception of a very small part) they cease to exist as an international entity.
These are the arguments expressed explicitly or implicitly by the returning government. Therefore, they are also the arguments withwhich the Asian nations are acquainted. It is for this reason that these arguments, though often facticious, are made the starting point of this discussion.
According to McNair: “The most important principle of law incident to belligerent occupation… is that occupation does not displace or transform sovereignty. The occupant is entitled to exercise military authority over the territory occupied, but he does not acquire sovereignty unless and until it is ceded to him by treaty of peace.” McNair, “Municipal Effects of Belligerent Occupation, ” 56 L.Q.R. 34 (1941).
De Louter stated that, as late as the 19th century, occupied territory was considered as a conquest, 2 De Louter, Het Stellig Volkenrecht (Positive International Law) 261 (1910); 2 Oppenheim, International Law 435 (7th ed. 1952 ).
The Japanese often, though not always, behaved as if they had conquered and annexed the Asian territories e.g. one of their first objectives was mostly the japanisation of the legal system. See Lyons,“The Courts of Singapore under the Japanese Occupation,” 30 B. T.I.L. 507–512 (1953); Zorab, De japanse Bezetting van Indonesië (The Japanese Occupation of Indonesia) 143–149 (1954).
Feilchenfeld, The International Economic Law of Belligerent Occupation 7–8 (1942).
The fact that not the entire territory of Burma was under Japanese control and the continuation of the war from India also exclude the question of debellatio, or subjugation. Since there can, therefore, be no question of debellatio the authority of the Japanese can only be based on the laws of belligerent occupation (Van Essen, “Het Recht van de Bezetter in Duitsland” (The Law of the Occupant in Germany), 23 Nederlands juristenblad 741–751 at 744 (1948); Oppenheim, op. cit. supra note 158, at 600.
Supra at 77.
There are few written documents on rules of warfare before the 19th century, but there always were customary rules. Only in the 19th and 20th century did such written documents come into being starting with the Declaration of Paris of 1856 on maritime laws in time of war. Lachs, War Crimes — An Attempt to Define the Issues 5 (1945).
Oppenheim, op. cit. supra note 158, at 226, Von Glahn op. cit. supra note 154, at 3. Writers like Graber, The Development of the Law of Belligerent Occupation 1863–1914 (1949), and Mouton, Oorlogsmisdr1 ven in het Internationale Recht (War Crimes in International Law) (1947) trace back the present codified rules to the preceding documents on the laws of war. One thing which such studies expose is the different laws which prevailed not so long ago on certain points, e.g. arts. 26, 33, 59 and 60 of the Lieber Code (Lieber, Instructions for the Government of Armies of the U.S. in the Field (1898) appear to be contrary to respectively, arts. 45, 43 (as well as 45 and 52) of the Hague Regulations, art. 2 of the Convention of Geneve of 1929, and art. 23d of the Hague Regulations. Mouton, op. cit. supra note 164 at 67–69.
Graber, in her treatise on belligerent occupation, mentioned other landmarks in the development of international law preceding the creation of the Hague Regulations, e.g. the Lieber Code, The Brussels Code of 1874, and the code of the Institute of International Law of 1880 (Oxford). This thesis limits itself to the Hague Regulations which, since they have not been formally revised, are still “the basic code to which international lawyers turn to determine what occupation law is…” Graber, The Development of the Law of Belligerent Occupation 1863–1914, 5–6 (1949).
The 4th Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War, is excluded here because of its creation only after the Burmese occupation. 186 Scott, The Hague Conventions and Declarations of 1899 and 1907, 122 (1918).
Until a more complete code of the laws of war is issued the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain (italics added) under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience…“ (from the Preamble of the Hague Convention, Scott, op. cit. supra note 166, at 101). See also Lord Cave, ”War Crimes and their Punishment,“ 8 Trans. Grot. Soc. XXI (1922).
The inadequacy of the laws of war is, of course, not a new discovery. The development of the world community has at various times exposed such gaps. World War I proved that the problem of air warfare had not yet been fully understood. Lachs, op. cit. supra note 163, at 7. The totality of the modern wars affected the applicability of the traditional rules of war, e.g. in the matter of reprisals, indiscriminate mine-laying, general devastation. Lauterpacht, “The law of Nations and the Punishment of War Crimes, 21 B.T.LL. 74–75 (1944). For problems raised by the dropping of the atom-bombs, see Stowell, ”The Laws of War and the Atom Bomb, “ 39 A.J.LL. 784–788 (1945).
Another fact which caused uncertainty with respect to the application of the traditional laws of war is the modern concept of international action for the collective enforcement of peace undertaken against an aggressor state. Opinions are divided whether the aggressor state should have the benefits of the laws of war (Lauterpacht, “The Limits of the Operation of the Law of War,” 30 B. Y.I.L. 206 (1953).
Kunz, “The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision,” 45 A.J.LL. 38, 40, 52 (1951).
To keep a sense of proportion it should be noted, however, that in spite of this chaotic status, the rules of occupation have still made the greatest progress of all rules of warfare. Oppenheim, op. cit. supra at 432. Mouton also points out that the Hague Regulations represent in general the existing laws of war. He admits their obsolescence, however, and stresses also the different attitudes of the big and small powers towards the obligation of the occupant, as a result of their contrasting vulnerability in time of war. Mouton, op. cit. supra note 164, at 139–140).
Holland suggested as another reason that the drafters of the Hague Conventions refrained from being too specific in order not to add to the authority of the repulsive claims. Holland, The Laws of War on Land, 61 (1908).
Feilchenfeld stated that the drafters mistakenly expected that these rules would undergo a permanent progressive development and therefore failed to anticipate a deterioration of war practices. Feilchenfeld, The International Economic Law of Belligerent Occupation 14 (1942).
Kunz, supra note 169, at 40.
Id. at 38.
On the other hand, this gap does not imply a criticism of the Hague Convention itself. On the contrary; the Preamble of this document states that“… the high contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.” Scott, supra note 166, at 101. What is, therefore, objected to here, is only the too mechanical application of the given laws of war.
See for an application of such a method of interpretation: McDougal and Schlei, “Hydrogen Bomb Tests in Perspective - Lawful Measures for Security,” 64 Tale L.J. 658 (1951) and McDougal and Burke, “Crisis in the Law of the Sea - Community Perspectives versus National Egoism,” 67 Tale L.J. 539–544 (1958).
At present, war more and more becomes a total war with all its regrettable consequences, not the least the doing away with the distinction between military and civilian interests. In Asia the concern for the civilian population has been greatly aroused by the dropping of the atomic bomb on Japan in 1945 (Stowell, supra note 168, at 784788) and the subsequent nuclear tests.
The controversy about the validity of the traditional laws of war is clearly exposed with respect to this particular rule which has been generally accepted for a long time. As a result of experiences in World War II, however, opinions were expressed that a state is entitled to command its citizens to disobey orders which the occupant was entitled to give under international law. 2 François, Handboek van het Volkenrecht (Manual of International Law) 329–330 (1950).
Oppenheim, op. cit. supra note 158, at 438–456.
Von Glahn, op. cit. supra note 154, at 34; Spaight, War Rights on Land 322 (1916). Such a process of balancing interests in terms of rights and obligations is obviously often coloured by national preferences. Germany has in the past often defended the position of the occupant, whereas Belgium and France tend to limit the powers of the occupant. Countries like Britain and the United States were inclined to take a middle position. Feilchenfeld, supra note 171, at 15. It is very obvious that in our time of bipolar struggle in which any aggressor is faced with a deadly counter attack and all states without exception are in danger of occupation, there is a great need of a fair balance of interests.
Ph. M. Brown (supra note 155 at 667), discussing the problems of sovereignty, stated that “so long as people do not accept military conquest, as long as they can manifest in one way or another their inalterable will to regain their freedom, their sovereignty… still persists.” This statement holds true for the British as the adversary of the Japanese in Burma. There is a significant corollary to an acceptance of Brown’s theory, however, for it might well be used as a basis for Asian claims that their countries had only been occupied by the Western powers and never conquered or annexed since the Asian people never abandoned completely the idea of their own sovereignty, an idea which periodically came to the surface in the form of rebellions. Even the lapse of a few centuries did not affect the Asian views decisively. See also Von Glahn, op. cit. supra note 154, at 31.
Von Glahn, op. cit. supra note 154, at 226–227; see also Lauterpacht, “The Law of Nations and the Punishment of War Crimes” 21 B.rI.L. 75 (1944).
Oppenheim, op. cit. supra note 158, at 437. See also Van der Hoeven who discusses whether art. 43 of the 4th Hague Convention gives the occupant the power to give regulations other than those to ensure public order and safety. Van der Hoeven, “De Wetgevende Bevoegdheden van de Bezetter (The Legislative Powers of the Occupant), 16 Nederlands Juristenblad 233–235 (1941).
The relations during World War II between the German occupation forces and the population of the island of Guernsey in the Channel represent a good example of the actual interplay and balancing of their respective interests. See for a description of that situation Quincy Wright, “The Value of International Law in Occupied Territory,” 51 A.J.LL.775–783 (1945).
Brierly, The Law of Nations 44 (1949).
See Chapter I supra at 18.
Cf. the case of the Philippines and her support to the U.S. 181 See Thakin Nu, Burma under the Japanese 7 (1957).
Hyde, “The Status of the Republic of Indonesia in International Law,” 49 Col. L.R. 957 (1949).
See also supra at 56.
Von Glahn op. cit. supra note 154, at 50.
Ibid.
Oppenheim, op. cit. supra note 158, at 439, footnote 1.
In a footnote Feilchenfeld gives an example which has much similarity with the Burmese case, i.e. “The following situation may also arise: A non-contiguous region, such as a colony, may be evacuated by a belligerent occupant and may then not be reoccupied by the old sovereign, his allies or third states. Unless the liberated colony engages in recognized secession, it would seem to return to the old sovereign.” Feilchenfeld, op. cit. supra note 160 at 7, n. 4. The difference between the two examples was that the Japanese occupant did not (or did not intend to) evacuate the country, and the old sovereign did return. Moreover the Burmese act of secession found little recognition.
This, of course, does not imply a denial of one of Japan’s main war objectives, namely, the elimination of all Western influence in the occupied areas of Asia. See Jansma, Het Bezettingsrecht in de Practijk van de Tweede Wereldoorlog (The Laws of Occupation in the Practice of the Second World War) 19 (1953). But this objective was only true in its generality. In the realization of this objective, Japan was obliged to make several concessions one of which was the granting of independence to certain nations whose support she desperately needed in the struggle against the Western powers.
The position taken by the colonial governments is similar to the Roman principle of jus postliminii which restored ex-Roman persons or property to their original status as soon as they came again under the control of the Roman empire. See 2 François, op. cit. supra note 177, at 339; 2 Oppenheim, op. cit. supra note 158, 616–620; Feilchenfeld, op. cit. supra note 160, at 144.
Supra at 77.
This is not the place to dwell extensively upon the merits of the political and humanitarian ideals of the Japanese in “liberating” the indigenous people. The concept and application of the idea of a “Greater East Asian Co-prosperity Sphere” is well known. As so many other slogans, it contained a mixture of truly idealistic intentions and pure self-interest. This is not a new way of reasoning with regard to colonial dependencies, however. After World War I there was a similar case of the Cameroons. Marabail compared the merits of the French and the preceding German administrations of this territory and came to the conclusion that the French idea of a “mission sacrée” towards the native population of the Cameroons would make France a better administrator than the cruel and egotistic Germans. This is in his opinion the justification of France’s role as the executioner of the “tâche civilisatrice,” Marabail, Etude sur les territoires du Cameroun occupés par les troupes françaises 165–173 (1919). But cf. the German protest against the “Kolonialschuldlüge” (i.e. that German colonial administration before 1914 had been far below standard) Von Freytagh-Loringhoven, Das Mandatsrecht in den deutschen Kolonien, i (1938).
At one of the liaison conferences between the Japanese Cabinet and the General Staffs of Army and Navy, the future policies for occupied territories were considered. One of the decisions arrived at was that a pre-mature development of independence movements in the occupied areas had to be prevented. The autochthonous population had to be made fully aware of its dependency on the Imperial Japanese forces.
Maung Mating, op. cit. supra note 148, at 95.
François stated that the Hague rules started from the presumption that the occupation would be brief and that the military authority would always have complete control. François, op. cit. supra note 177, at 320.
This is not to say that Japan’s attitude towards her other obligations as an occupant did not fall far short of a reasonable minimum. Japan was particularly guilty of violating arts. 46 and 50 of the Hague Regulations. Jansma, supra note 194 at 19, 122–125.
Von Glahn, op. cit. supra note 154, at 36.
Heyland, Die Rechtsstellung der besetzten Rheinlande nach dem Versailler Friedensvertrag and dem Rheinlandabkommen 8 (1923).
Maung Maung, op. cit. supra note 148, at 112.
For an account of the Indonesian question written in the English language, by American authors: Kahin, Nationalism and Revolution in Indonesia (1952); Wolf, The Indonesian Story; by an English author: Wehl, The Birth of Indonesia (1948); by Dutch authors: Vlekke, Nusantara, A History of the East Indian Archipelago (1945); Van Mook, The Stakes of Democracy in Southeast Asia (Book Two and Three) ( 1950 ); Gerbrandy, Indonesia (1950).
International Military Tribunal for the Far East (hereinafter cited as IMTFE), Exhibit Doc. No. 1335, Establishment of East Asia. Maneuvers for the First Period of Total War, 10–11, (1946–48).
De Weerd, The Japanese Occupation of the Netherlands Indies, IMTFE, Pros. Doc. 2750. For a short description of the composition of the Japanese military and civilian High Command, see Zorab, De JapanseBezetting van Indonesie (The Japanese Occupation of Indonesia) 3–10 (1954).
Elsbree, Japan’s Role in Southeast Asian Nationalist Movements 1940–45, 15–42 (1953).
IMTFE, Exhibit Doc. No. 1333A, Policy toward Neutral Powers and other Problems, 1–2 (1946–48).
IMTFE, Exhibit Doc. No. 1344, Course of Events Leading up to Decisions on Political Control and Reversion of the East Indies in the Second World War, 2–3 (1946–48).
Id. at 1.
Ibid.
Id. at 2–3.
Overdijkink, Het Indonesische Probleem, De Feiten (The Indonesian Problem, The Facts) 32 (1946); Kahin, op. cit. supra note 206, at 115.
Aziz, Japan’s Colonialism and Indonesia, 236–237 (1955); Overdij kink, op. cit. supra note 215, at 32–33.
It is quite clear here that the intention to grant independence has little to do with the often repeated argument that the Japanese conferred independence only to injure the Western colonial powers (see supra at 91). Being on the losing side at this moment, the Japanese made an all-out effort to win the support of the colonial peoples and, according to one Indonesian opinion, no promise was too big for the Japanese to achieve this goal. Adam Malik, Riwajat dan Perdjuangan sekitar Proklamasi Kemerdekaan Indonesia (The Story and Struggle around the Indonesian Proclamation of Independence) 12 (1948). See also Aziz, op. cit supra note 216, at 250–252.
For a more detailed account, infra at 100 and note 237.
Enquête Commissie Regeringsbeleid 1940–45, (Report of the Investigation Committee into the (Netherlands) Government Administration during 1940–45) vol 8, 654–655 (1956). See also the views of the Dutch Parliamentary commission (Van Poll Commission) which investigated the factual situation in Indonesia in 1946. Van Poll, Indonesië in het Parlement at 23–24 (1946); Kahin, op. cit. supra note 206, at 141–142.
For the legal aspects of the second (= British) military occupation of the Netherlands Indies see infra at 100.
Kahin, op. cit. supra note 206, at 145.
For the English text of the Linggadjati Agreement, see Wolf, op. cit. supra note 206, at 175–178; Dep. of State Bull. XVIII, no. 454, 325–327 (1948).
Foster Collins, “The United Nations and Indonesia,” Int. Conciliation, March 1950, no. 459, 119–126; Kahin, op. cit. supra note 206, at 196–199; Wolf, op. cit. supra note 206, at 29 16; Smit, Net Akkoord van Linggadjati (The Linggadjati Agreement) (1959); Smit, De Indonesische Questie (The Indonesian Question) 90–135 (1952); Overdijkink, Net Indonesische Probleem, De nieuwe Feiten (The Indonesian Problem, The New Facts) 113–123 (1948).
U.N. Security Council, Off. Rec. 2nd year, no. 67, 171st meeting, 31 July 1947, at 1615–1617 (1947).
U.N. Security Council, (S/525) 26 August 1947, point II.
U.N. Security Council (S/649) 10 February 1948 at 105–107.
Id. at 111–112.
Id. at 97.
Id. at 20–25; Foster Collins, supra note 223, at 143–151; Kahin, op. cit. supra note 206, 224–229; Smit, De Indonesische Questie 150–160 (1952).
Dr. Van Royen in a statement in the Security Council on 22 December 1948, Off. Rec., 3rd year, no. 132 at 4 (1948); Foster Collins, op. cit. supra note 223, at 118.
Supra at 94.
Supra at 92.
Supra at 95.
Annexation, like belligerent occupation and conquest, is another factual situation resulting from a war. In order to discourage wars traditional international law has been very hesitant to legalize the benefits which have been the outcome of war efforts. It has deliberately ignored the factual situation and has therefore become rather hypocritical at times. See Schwarzenberger, Manual of International Law 50 (1947); Fischer Williams, “Sovereignty, Seisin and the League,” 7 B. Y.I.L. 41 (1926). In practice, annexations were carried out regardless of the apparent violation of international law. Though “premature” they were in time accepted as a valid title. See for examples, 1 Oppenheim, International Law § 239 (1955). For opponents of the above traditional theory, see the the German writers Von Liszt, Das Völkerrecht 150 (1925), Von Freytagh Loringhoven, Völkerrechtliche Neubildungen im Kriege 23 (1941). For the influence of the Covenant of the League of Nations, Hyde, “Conquest Today,” 30 A.J.LL. 472 (1936). For the influence of the U. N. Charter, see e.g. 1 Oppenheim, International Law § 241a. See also the case of Burma and the question of conquest, supra at 78.
Supra at 88.
Japanese connivance was not so general as is sometimes contended. Zorab mentions how the opinions of the top military officials in Java were divided. Zorab, op. cit. supra note 208, at 120.
For a Dutch view on the reasons behind the transfer of the Netherlands Indies from the South West Pacific Area Command of General MacArthur to the South East Asia Command of Admiral Mountbatten, see Enquête Commissie Regeringsbeleid 1940–45, op. cit. supra note 219, 484–523 (1956). See also 2 Helfrich, Mémoires 198–201 (1950). For a contrasting British view justifying their actions, see Wehl, op. cit. supra note 206, at 31–49.
Overdijkink, op. cit. supra note 215, at 46 (1946).
The Van Poll Committee attributed the cause of the uncertain situation to the fact that, although the Allies recognized Dutch sovereignty over the Netherlands Indies
Enquête Commissie, op. cit. supra note 219, at 655–657.
Supra note 219.
See for a Dutch view, Van Kleffens in the Security Council, U.N. Security Council, Off. Rec. 2nd year, no. 67, at 1619, 1645 (1947). For an Indonesian view, see the discussion of the status of the Republic of Indonesia, in Sastroamidjojo and Delson, “The Status of the Republic of Indonesia in International Law,” 49 Col. L. R. 344–361 (1949).
Still another, but weaker, Indonesian argument is the one put forward by Marami in his pamphlet “No more Legal Power of the Netherlands in Indonesia,” 5–11 (1946). Maramis deduces the independence of Indonesia from the fact that the Governor-General governed in the name of the Queen whose authority, it is alleged here, had become unconstitutional when the seat of the Dutch government was removed to London contrary to the provisions of the Dutch Constitution. From this violation Maramis draws the conclusion, without further elucidation, that Indonesia constituted an independent state as of the moment of the removal of the seat of the Dutch government from the Netherlands. Afterwards, however, this Dutch action has found its justification in the theory of “state emergency law.” See e.g. Kranenburg, Nederlandsch staatsrecht (Netherlands Constitutional Law) 448–450 (1947).
See written statement by Dr. Roem, Chairman of the Indonesian delegation, in Sastroamidjojo and Delson supra note 242, at 348, note 14. This argument, if true and valid, would then equally hold for some other colonies in Asia.
Kahin in Holland, Asian Nationalism in the West 70 (1953).
P. M. Brown states that sovereignty remains with the legitimate government so long as the people in occupied territory “can manifest in one way or another their inalterable will to regain their freedom.” P. M. Brown, “Sovereignty in Exile,” 35 A.J.LL. 667 (1941). Such a contention applied fully to the Dutch people in Indonesia, but it obviously did not apply to the Indonesians who did not regard the Dutch government as the legitimate government in the strictest sense of the word.
Briggs, The Law of Nations 65–66 (1952).
Hyde “The Status of the Republic of Indonesia in International Law,” 49 Col. L. R. 956 (1949).
Oppenheim, op. cit. supra note 234, at 121–123 (1948).
Sastroamidjojo and Delson supra note 242, at 348.
Id. at 349.
Wolf, op. cit. supra note 206, at 176.
Cf. François, I Handboek van het Volkenrecht (Manual of International Law) 190 (1949); Hyde, supra note 248, at 350; Lauterpacht, Recognition in International Law 339 (1947).
Sastroamidjojo and Delson, supra note 242 at 350.
François, op. cit. supra note 253, at 181.
Lauterpacht, op. cit. supra note 253, at 330.
Sastroadmidjojo and Delson, supra note 242, at 345.
U.N. Security Council, Off. Rec., 2nd year, 171st meeting, no. 67, at 1619–1620 (1947).
It is remarkable, though perhaps understandable, that many of the Indonesian counter-arguments are very similar to some opposing views heard in the Dutch Parliament during the debates on the Linggadjati Agreement, cf. Ruys de Beerenbrouck, Souvereiniteitsoverdracht aan Indonesië (Transfer of Sovereingty to Indonesia ) (1950).
Sastroamidjojo and Delson, supra note 242 at 352–353.
The Linggadjati Agreement was a concession to this claim. Foster Collins, supra note 223, at 122–123.
Hyde, supra note 248, at 956; Wolf, op. cit. supra note 206, at 10. In a review of Wolf’s book Prof. Vlekke writes, however, that the Dutch have very soon already given up this attitude. Vlekke, in 2 Indonesii at 280 (1948–49).
Upon their arrival on Java the British called upon the Indonesian leaders to support them in the exercise of their task. This, according to the Dutch, was an implied recognition of the Indonesian leaders as a de facto authority. Van Poll, op. cit. supra note 219, at 23.
Supra at 105.
Van Mook, The Stakes of Democracy in Southeast Asia, 238 (1950).
E.g. with respect to the Netherlands-Indonesian Union, and the dispute on Western New Guinea (= Western Irian).
Van Asbeck, “The Birth and Decline of the Netherlands-Indonesian Union,” 7 T.B.W.A. 204–227 at 211 (1953).
Even the signing of such an important document as the Linggadjati Agreement took place in a spirit of disagreement. Foster Collins writes: “After an unsuccessful attempt to resolve the differing interpretations, the two governments decided to sign the agreement, agreeing to disagree on the interpretation.” Foster Collins, supra note 223, at 123.
For an Indonesian point of view, see e.g. the article by Miss Rasid, of the editorial staff of the Indonesian newspapier Siasat, which strongly maintained that the main cause of difficulties during the negotiations was the differences of opinion between the Republican and the Netherlands governments as to the nature of the problem, namely whether it was a purely internal question or not. “This fundamental difference in interpretation started all the later difficulties…” Rasid, “Developments in Indonesia,” 5 India Q.255–258 ( 1949 ). For a Dutch view on the basis of the negotiations and the way they were carried out, see the notes made from the diary of Prof. Schermerhorn, the Chairman of the Dutch Commission-General, which carried on the final negotiations leading to the Linggadjati Agreement. Smit, Het Akkoord van Linggadjati (The Linggadjati Agreement ) (1959).
This statement of Dr. Graham made at a meeting of the U.N.C.I. with Republican leaders at Kaliurang (near the Republican capital of Jogjakarta) a few days earlier, was apparently reiterated by the Australian member of the U.N.C.I., Mr. Kirby, on board the Renville. Rasid, supra note 269, at 255. According to Smit this whole Agreement which was to play an important role in Netherlands-Indonesian relations, was built on a shaky basis. Smit, De Indonesische Questie 157 (1952).
Vlekke, “The Settlement in Indonesia — The Final Phase,” 6 The World Today 32 (1950).
Id. at 32–33.
U.N. Security Council, op. cit. supra note 226, at 97. 894 Hyde, supra note 248, at 960.
Supra at 106–110.
U.N. Security council (S/1417/Add. 1.), 14 November 1949 at 66 (1949).
Id. at 71.
For a brief, but clear description of the differing interpretations of the two parties with respect to the role of the Union in their mutual relationship, see Van Asbeck, supra note 267, at 210–211.
Even this period of one year would have been much shorter, if the Federal Republic of Indonesia (U.S.I.) and the Republic of Indonesia (R.I.) had not indulged in the theoretical discussion as to who was to be considered the testatrix of the pending unitary state. Böhtlingk, “De Nieuwe Eenheidsstaat” (The New Unitary State) 4 Indonesië 106 (1950–51).
For the ever-present dislike of the federal idea among the leaders of the Republic of Indonesia, see Schiller, The Formation of Federal Indonesia 4–5 (1955).
N. T Times, February 22, 1956.
Jaarboek van het Ministerie van Buitenlandse Zaken (Yearbook of the Netherlands Ministry of Foreign Affairs), 112 (1955–56).
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Syatauw, J.J.G. (1961). The Origin of the Problem. In: Some Newly Established Asian States and the Development of International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-3192-8_2
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