Case: Rev. Mons. Sebastiao Francisco Xavier Dos Remedios Monteiro Vs. State of Goa

1. 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 chose 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 has the same force and validity as if made by the Central Government. Rev. Father Monterio 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, 19672. The defence of Rev. Father Monterio was that he was protected bythe Geneva Conventions Act,, 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 Monterio with the leave of this Court.

Reasoning: 6. The argument overlooks one cardinal principle of International Law and it is this. Rev. Father Monterio 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 only the legal right but also 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 territory 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 Rev. Father Monterio was legally competent. A considerable body of writers on International Law support the proposition and it is sufficient to refer only to Oppenheim (Vol. I) 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 inMusgrove v. Chun Teeong Toy 1891 AC. 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 rightBy Articles 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 recognized 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 Convection cases on the general close of Military operation. In the occupied territory it ceases one year after the general close of military operation but the occupying Power is bound for the duration of occupation, to the extent that such Power exercises the functions of Government in such territory, by Articles 1-12, 27, 29-34, 47, 49, 51, 52, 53, 59, 61-73 and 143We are of opinion that the pleas of Mr. Gardner that the Geneva Conventions Act makes dispunishable the conduct of Rev. Father Moterio, must failWe 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 Articles 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 though 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 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 horrid 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."17. 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 Article 154 of the Geneva Conventions18. The Hague Regulations, Arts. 42 - 56, contained some limited and general rule for the protection of inhabitants of occupied territory. The Regulations are supplementary. Regulations 43 and 55 which have no counterpart in the Geneva Conventions must be read. They are not relevant here. Similarly, as there is no definition of occupation in the Geneva Conventions, Article 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 hostile army."19. 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, Article 6 which provides about the beginning and end of the application of the Conventions throws some light on this matter21. The definitions 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 cased States v. Attstoctcer, et al. (1947) U. S. Military Tribunal, Nuremberg L. R. 3 T. N. C. vi.) 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 occupation22. The question thus resolves itself into this: Is occupation in Article 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 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 force23. 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 - The Modern Law of Land Warfare put it (p. 215) military occupation must be distinguished from subjugation , where a territory is not only conquered, but annexed by the conqueror24. 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 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 End.). pp. 846-847 (Vol. I) 566 (Vol. I), pp. 448/52 (Vol. II), 430-439 (Vol. II) and 599 et. Seq. (Vol II), Greenspan (ibid) pp. 215 et. Seq. 600-603; Could : Introduction to International Law pp. 652-656, 662-663; Briefly : Law of Nations p. 15525. The Conventions rightly lay down 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 Article 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 recognized as one of the modes of acquiring title, not 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 themthe 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, then 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 be asked why does Article 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 part of the Occupying Power. Annexation may sometimes be peaceful, as for example, Texas and Hawaiian Island were peacefully annexed by the United States or after war, as the annexation of South Africa and Orange Free State by Britain27. The question, when does title to the new territory begin, is not easy to answer. Some would make title depend upon recognition. Mr. Stimsons 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 conquest but when Italy conquered Abyssinia, the conquest was recognized because it was 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 recognized. Prof. R. Y. Jennings poses the questiont 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 title28. 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 Encrenos case, 1953 SCJ 47. 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 Article 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 Conventions29. 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 argument30. 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 it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy."The Geneva Convention 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.