Occupation right (also right of occupation ) is the right that one or more occupying powers (occupant) have or set ( right set by the occupant) in relation to an occupied area (right of the occupant ). The international legal basis of the law of occupation is usually the third section of the Hague Land Warfare Regulations with the title "Military violence in occupied enemy territory". A distinction must be made here between the protective rights of the resident population and the sovereignty rights of the state whose territory is fully or partially occupied, see occupation in international law .
The right set by the occupiers
This is to be understood as the right that the occupants exercise for the occupied territory by virtue of their occupying power.
For their part, the occupiers are bound by international law , above all the Hague Land Warfare Regulations and the IV Geneva Convention . From an international law perspective, there are two situations in which the occupying powers are entitled to legislate their own. A condominium is the situation in which the sovereignty of an occupied country is completely eliminated and replaced by the common sovereignty of the victors: the territory of the defeated state now belongs to the victors and is jointly ruled by them. A coimperium , the common perception of territorial sovereignty , on the other hand, is communal rule over the territory of a foreign state that has been defeated but continues to exist as a subject of international law despite the lack of capacity to act . Its sovereignty is retained; the exercising of rights and responsibilities is shared by the victorious powers . An example of the latter is the legal situation in Germany after 1945 .
Germany after World War II
The Allied occupying powers installed three tiered decision-making levels with different competencies: The Foreign Ministers' Conference of the Four Powers , which met in 1955 for the Geneva Summit Conference and in 1959 for the Geneva Foreign Ministers Conference ; the Allied Control Council , which was to exercise state or supreme government authority in occupied Germany ; and the military governments of the individual zones of occupation . After the failure of the Foreign Ministers' Conference in the Cold War , its powers were transferred to the Control Council. He had legislative sovereignty over central issues that affected all of Germany . It was offset by the executive sovereignty of the individual military governments in the zones, which developed differently politically. When the Soviet representative left the Control Council in March 1948, it was in fact dissolved. Occupation policy and occupation law then became a matter for the Allied military governors and developed very differently.
After 1949, the occupation law was largely transferred to federal or state law (→ transfer agreement ). Occupation law, which has not been transferred to German federal or state law, has been repealed by the law on the adjustment of occupation law (exception: Control Council Act No. 35 on Compensation and Arbitration in Labor Disputes, of August 20, 1946).
- Michael Rensmann: Occupation Law in the Reunified Germany. Degradation problems and leftovers. Nomos Verlagsgesellschaft, Baden-Baden 2002, ISBN 3-7890-7883-2 ( Hannoversches Forum der Rechtswissenschaft, vol. 20). Zugl .: Hannover, Univ., Diss., 2001.
- Dieter Blumenwitz : Deutsche Souveränität im Wandel , Zeitschrift für Politik 46 (1999), pp. 195-215 (keyword “petrified occupation law”, pp. 199 ff.).
- Collection of legal sources, mainly from the time of occupation in Germany (the legal norms promulgated in the WiGBl. , However, do not belong to the occupation law)
- ↑ Alexander Proelß, in: Graf Vitzthum / Proelß (eds.), Völkerrecht , 6th edition 2013, p. 360 f.
- ^ Andreas von Arnauld, Völkerrecht , 2nd ed. 2014, p. 37 .
- ↑ Second law on the adjustment of federal law in the area of responsibility of the Federal Ministry of Justice (2nd BMJBBG), dated November 23, 2007 - Federal Law Gazette I p. 2614 (No. 59)
- ↑ Draft law of the German federal government (PDF; 998 kB)