The meaning of the phrase ‘les lois en vigueur’

252. In accordance with the second part of Regulation 43 (quoted supra 202), there is no legislative tabula rasa in case of belligerent occupation. The Occupying Power must respect ‘les lois en vigueur’ (the laws in force) in the occupied territory, unless there is an ‘empêchement absolu’. Respect means that – as spelt out in the Brussels Project (supra 204) – the Occupying Power has to maintain the laws in force and not modify, suspend or replace them with its own legislation (subject to the saving clause).

253. In French, the term ‘les lois’ (i.e., promulgated ‘laws’) is narrower than ‘le Droit’ (‘the Law’ in an all-embracing sense). Promulgated laws embrace basic as well as trivial laws; whether national or municipal; either civil or criminal; substantive or procedural; but they are restricted to jus scriptum. All the same, there is no indication that the authors of the Hague Regulations really wished to exclude from the orbit of Regulation 43 jus non scriptum in the form of ‘common law’, domestic customary law, tribal law (especially of indigenous and nomadic people), etc.

254. As for the phrase ‘en vigueur’, once again the Brussels Project is more precise in adverting to ‘les lois qui étaient en vigueur dans le pays en temps de paix’ (supra 204). Regulation 43 also ‘refers only to those laws which were “in force” in the occupied territory at the time of the commencement of the occupation’.