| ID | 146670 |
| Title Proper | Doctrine of occupation |
| Other Title Information | an analysis of Its invalidity under the framework of international legal positivism |
| Language | ENG |
| Author | Henan, Hu |
| Contents | In contemporary international law, the doctrine of occupation has two aspects: 1) the subject of occupation, i.e. sovereign State; 2) the object of occupation, i.e. terra nullius (land without sovereignty).1 Meanwhile, this doctrine is seen as an analogy from the Roman law of occupatio. Given that international legal theory has transformed through three stages of development from jus gentium in antiquity, to natural law theory in the early modern period to positivism in the nineteenth century, this article aims to examine whether the historical and contemporary meaning(s) of this doctrine have kept validity throughout such paradigm shifts. In particular, contemporary international law pays little attention to the legal status of this doctrine in the natural law tradition. This article finds that the doctrine of occupation has a legal foundation in natural law theory in which this doctrine was seen as applicable to individuals rather than the State and terra nullius was seen as land without private property while sovereignty was only secondarily related to occupation as a result of civil and political developments to establish a public authority within the occupied land. European colonial practices of this doctrine from the sixteenth to the early nineteenth century were consistent with the natural law tradition. Therefore, international legal positivism fails to provide validity to the contemporary meaning of this doctrine under its own theoretical framework. |
| `In' analytical Note | Chinese Journal of International Law Vol. 15, No.1; Mar 2016: p.75-138 |
| Journal Source | Chinese Journal of International Law Vol: 15 No 1 |
| Key Words | Sovereignty ; Doctrine ; International Law ; International Legal Positivism ; Doctrine of Occupation |