6.5 OCCUPATION AND THE NOMOS OF THE EARTH

Schmitt's history of the law of nations focused on the ways in which, ‘precisely here - in the economy', Schmitt wrote, ‘the old spatial order of the earth lost its structure'. This began with the actions of a sea-faring British Empire, was entrenched in the globally integrated but avowedly ‘free' economy of the early nineteenth century, and out of which globalization, regional hegemony, or the model of a closed commercial state, remained the leading options for modern politics.^[455] Occupation, siege, and dictatorship threatened the viability of these options, and hence the stability of politics in modern Europe.

Indeed, when Schmitt returned to the theory of occupation in this work, he explicitly made the link between the institutions of occupation and the state of siege. He claimed there was a ‘remarkable existential relation' joining ‘the legal institute of militarily occupied territories in the law of nations and the state of siege or of emergency [Belagerungs- oder Ausnahmezustand] within a constitutional state [konstitutionellen Verfassungsstaates]'.^[456] Both theories cut to the core of state sovereignty as refracted in its international and domestic contexts.

But in turning to the concept of occupation, Schmitt's first move was to trace the institution of occupation within the context of seventeenth- and eighteenth-century understandings of the jus publicum Europaeum to argue that there was in fact no separate legal institution of military occupation; all occupied territory belonged to the occupier. This conception was a direct result of the accompanying concept of ‘state sovereignty, to which the effect­ive, state organized power in a defined area belongs, extends from itself onto the area of its effective state power'.^[457] Thus, the moment a territory came under the effective control of a foreign military, the territory experienced an ‘immediate change in sovereignty.^[458] In other words, a separate conception of military occupation distinct from the extension of state sovereignty could not have existed at the beginning of the jus publicum Europaeum because of the equivalence of sovereignty with effective territorial jurisdiction.

However, Schmitt claims that this understanding of occupation in the eighteenth century was also tied together with a particular understanding of the constitution [Verfassung] of the territory. In the first instance, ‘occupiers of the eighteenth century allowed the present law, particularly private law, to remain in force: private property and acquired rights, hence the entire social structure, remained untouched to a large degree'.^[459] Thus, the relevant con­ception of constitution was purely legal - ‘the person of the ruler and his surroundings as well as state administration and justice' - but excluded the social and economic sense of ‘the constitution' of a nation.^[460] Although this conception was challenged by the Napoleonic Wars, it was restored through the Vienna Congress and, for Schmitt, embodied in the thought of Talleyrand, who promoted what Schmitt called the ‘purely state character of war' in contrast to the English maritime (total) warfare.^[461] However, in insisting on the purely inter-state character of war, Talleyrand established a concept of occupation once again limiting the ability of the occupying force to change the social and economic structure of the occupied territory. As a consequence of this military rendering of occupation, ‘the holder of occupa­tion powers is required to be - despite the remaining mistrust of the military - a military commander [Militarbefehlshaber], not a civilian commissar'.^[462]

Schmitt saw the Napoleonic Wars as a key moment in the shifting meaning of the state and its sovereignty, as ‘jurists of the individual German states [Einzelstaaten]' posited a conceptual distinction between the ‘state itself and the particular holder [Inhaber] of state power' as a means to insist on the continuity of the state as a legal institution.^[463] Furthermore, this allowed for a distinction between the state and the legitimacy of any particular ruler's claim over it.

It was precisely this conceptual distinction, opened by the jurists of Kurhessen, which Schmitt claimed had allowed for the emergence of the modern understanding of occupatio bellica. By distinguishing between the state and the holder of state power, military occupation could emerge as the practice of changing state power while simultaneously leaving the state in place. On this reading, ‘occupation was no longer a land appropriation and did not result in territorial changes, but rather resulted in a merely provisional and merely de facto possession [Inbesitznahme] of the land and the things found on it, as well as an equally provisional and de facto subjugation of the men, their administration and their justice to be found on the occupied territory'.^[465] Thus, for Schmitt, the concept of a military occupation only came into focus through the nineteenth century as a response to the Napoleonic Wars and their consequences for the territorial division of German states.

The resulting description of the theory of occupation mirrors his earlier description of commissarial dictatorship in historical terms. In his prior studies of dictatorship, Schmitt proposed Bodin as the originator of a view of the commissarial dictatorship of the public person and Rousseau as the progenitor of an idea of sovereign dictatorship. Bodin offered Schmitt the distinction between a commissar and an official, and thus between the techniques available to the magistrate and the commissar. On his terms, a dictator under such an account would be like the ‘absolutist action commissar', or a ‘concep­tually necessary commissar, whose activity is legally observed', strictly delimited and presupposed by the distinction between law and ordinance.^[466] In the move toward the unified modern nation-state, Bodin's limiting frame­work of commissarial action for dealing with the emergency situation also helped lay the conceptual foundations for a modern distinction between sovereignty and government.^[467] Having spent time elaborating the conse­quences in the history of political thought, however, by the time he returns to the question of military occupation, Schmitt now claims that the provi­sional understanding of military occupation cuts to the core of the shared jus publicum Europaeum, and highlights a fundamental contradiction in its own logic:

how is it possible to construct a state authority, exercised through a state power on foreign state territory against the will of a foreign sovereign, without a change in sovereignty?...

Schmitt argued that the true character of this occupation was overlooked by jurists precisely because they maintained a dualistic approach to the law of nations, one that had mistakenly limited their understanding of the prior foundational concepts of siege and dictatorship. In other words, if it is assumed that all law is either exclusively domestic or exclusively international, then it is not possible to notice that military occupation in fact operates on both levels, and therefore is a crucial issue across the terrains of both domestic and international politics. Schmitt diagnosed this as the habitual problem of positivist jurisprudence, which extreme or exceptional moments highlighted with the utmost clarity. This is precisely what links the two concepts of military occupation and the state of exception for Schmitt. He wrote that ‘in both cases, a condition - which requires extraordinary measures and therefore breaks through [durchbricht] the constitution - should indeed be bound to the continued validity of the same constitution'.^[469] Conventional theories of military occupation and the state of exception attempt to ignore this funda­mental challenge, which is to say, they attempt to depoliticize a highly political situation by transposing it into the realm of jurisprudence.

6.6 CONCLUSIONS

As the German emigre and former student of Carl Schmitt, Ernst Fraenkel, noted in 1944, ‘a future historian...

Given that, the idea that one might reasonably expect to find a singular ‘key' to Schmitt's international legal and political thought simply at the level of his texts, particularly about the concept of the political itself, without attention to the concrete legal and political circumstances of their production is surely a category mistake. Legalistic or purely theoretical interpretations of Schmitt's international legal writings will not get us very far in trying to learn the practical lessons that Schmitt can still teach international lawyers and historians, namely that as a jurist, he wanted to win his cases, and he curated the law and its interpretation in political contexts to the best of his ability in order to do so. But those curatorial exercises took place in determinate historical contexts, and without recourse to them, we will simply be left taking Schmitt purely at his own word. Given his claim about historical truths being true only once, that might well be a rather awkward place to be. Some contemporary left-wing Schmittian scholars - who transpose his belligerent conceptual work into a form of ‘agonistic pluralism' and support the idea of a spatial, liberal politics based on Groflmume and Reich - would do well to remember that.^[473]