The Legality of Economic Activities in Occupied Territories

International, EU Law and Business and Human Rights Perspectives

Antoine Duval, Eva Kassoti

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000088731
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This edited volume explores the question of the lawfulness under international law of economic activities in occupied territories from the perspectives of international law, EU law, and business and human rights.

Providing a multi-level overview of relevant practices, policies and cases, the book is divided in three parts, each dealing with how different legal fields have come to grips with the challenges brought about by the question of the lawfulness under international law of economic activities in occupied territories. The first part includes contributions pertaining to the international law dimension of the question. It contains chapters on the conjunction between jus in bello, jus ad bellum and international human rights law in the context of exploitation of natural resources in territories under belligerent occupation; on third party obligations flowing from the application of occupation law in relation to natural resources exploitation; and on State practice with regards to trading with occupied territories. The second part focuses on EU law and contains contributions that assess the EU's approach to occupied territories and the extent to which this approach comports with the EU's obligations under international law; contributions providing an in-depth assessment of the case-law of the CJEU on occupied territories; as well as contributions pertaining to the political considerations that may influence the legal framing of questions pertaining to occupied territories. The final part focuses on the business and human rights perspective, with chapters on investment arbitration as a means for holding the occupant accountable for its conduct towards foreign investments and investors; on the role and impact of the soft law framework governing corporate activity (such as the UN Guiding Principles) on business involvement with occupied territories; as well as a final case study on the dispute involving Israeli football activity in settlements located in the OPT and the legal responsibility of FIFA in this regard.

The book will appeal to academics, practitioners and policy-makers alike.

1 Exploiting natural resources in occupied territories – the conjunction between Jus in Bello, Jus ad Bellum and international human rights law

Ka Lok Yip

1 Introduction

This chapter examines the relationship among jus in bello, jus ad bellum and international human rights law in the context of the exploitation of natural resources in territories under belligerent occupation. This chapter is divided into three parts. The first part delineates whether, and if so to what extent, jus in bello allows an occupant to seize or administer different types of property in occupied territories and whether and how this may extend to the exploitation of natural resources. The second part of this chapter re-examines the relationship between jus ad bellum and jus in bello with reference to the exploitation of natural resources by an occupant in accordance with jus in bello in territories occupied in violation of jus ad bellum. By critically reviewing doctrinal debates and jurisprudence, the chapter demonstrates that the allowance under jus in bello for the use of force involved in the exploitation of natural resources in occupied territories cannot undo the prohibition on the same use of force in international relations under jus ad bellum. The third part of this chapter examines the occupant’s obligations under international human rights law with a focus on the right to self-determination in the context of occupation and argues that such obligations cannot be subsumed under either jus in bello or jus ad bellum or both, but have their own irreducible core content.

2 Jus in Bello

The most explicit legal regulations of the exploitation of natural resources in occupied territories are contained in the body of international law commonly known as jus in bello, more specifically, the regulations annexed to the Convention (IV) respecting the Laws and Customs of War on Land¹ (the ‘Hague Regulations’). Section III of the Hague Regulations, entitled ‘Military Authority over the Territory of the Hostile State’ sets out different provisions allowing an occupant to seize or administer property that could encompass different forms of natural resources.

1 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) UKTS 10.

In relation to private property, Article 52 of the Hague Regulations forbids ‘[r]equisitions in kind … except for the needs of the army of occupation’. Even when requisitions in kind are allowed, the provision imposes further requirements: the requisitions must be proportional to the resources of the country, must not involve the inhabitants in military operations against their own country, must be demanded on the authority of the commander in the locality occupied and must be compensated for. The requisition of land, as an example of natural resources, could potentially fall within the scope of regulation of Article 52 of the Hague Regulations if the land is privately owned, as is often the case. In addition, Article 53 of the Hague Regulations allows for the seizure of ‘munitions of war’, even if they are private property, on the condition that they be restored and compensation fixed when peace is made. To the extent that any privately owned natural resources qualify as ‘munitions of war’, their seizure could potentially fall within the scope of regulation of Article 53 of the Hague Regulations.

In relation to public property, the Hague Regulations provide for different treatments depending on the types of property. For ‘public buildings, real estate, forests, and agricultural estates’, Article 55 of the Hague Regulations provides for the occupying State to act as their ‘administrator and usufructuary’ and obliges them to ‘safeguard the capital of these properties, and administer them in accordance with the rules of usufruct’. For ‘cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State’, Article 53 of the Hague Regulations allows the army of occupation to take possession of them if they ‘may be used for military operations’. In addition, Article 53 of the Hague Regulations also allows publicly owned ‘munitions of war’ to be seized. It is generally agreed that natural resources, so far as they are publicly owned, would fall within the scope of Article 55 of the Hague Regulations.² However, certain natural resources such as underground minerals or plants may be regarded as ‘movable property’ under Article 53 of the Hague Regulations once extracted or severed from the ground³ and therefore they fall outside the scope of Article 55 of the Hague Regulations for no longer being appurtenant to the real estate.⁴ Nonetheless, the extraction of these natural resources is still subject to the rules of usufruct pursuant to Article 55 of the Hague Regulations and an occupant with no right to these natural resources cannot create such right by simply extracting or severing them from the ground and converting them into movables.⁵ Some however seek to characterise oil, even when it is underground, as ‘movable property’ for the purpose of Article 53 of the Hague Regulations because of its similar physical state before and after being drilled from the ground (in contrast to other types of underground minerals).⁶ This argument has not however been accepted in jurisprudence.⁷ Nor has it been accepted that underground oil has ‘a sufficiently close connexion with direct military use to bring it within the meaning of “munitions-de-guerre” in Article 53’.⁸

2 Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (BRILL 2009) 209.

3 Ibid., 211.

4 Edward R Cummings, ‘Oil Resources in Occupied Arab Territories under the Law of Belligerent Occupation’ [1974] 9 The Journal of International Law and Economics 558.

5 Ibid., 559.

6 Yoram Dinstein, ‘The International Law of Belligerent Occupation and Human Rights’ [1978] 8 Israel Yearbook on Human Rights 104, 130.

7 per Whyatt C.J. in Singapore, Court of Appeal, N.V. de Bataafsche Petroleum Maatschappij and Others v. The War Damage Commission, 13 April 1956, 23 ILR 810, 822 and 824 (‘de Bataafsche case’). See also Cummings (n 4) 577.

8 de Bataafsche case (n 7) 823.

The significance of determining whether the relevant natural resources fall within the scope of Article 55 or Article 53 of the Hague Regulations is that the rules of usufruct referred to in Article 55 differ substantively from the criteria in Article 53 allowing the taking of possession of movable property or the seizure of war munitions. The concept of usufruct originates from Roman law and essentially allows a person to enjoy the fruits of property on the condition that the property itself is left unimpaired.⁹ For instance, a usufruct of an apple tree would allow the beneficiary to eat any apples produced by that tree. However, a usufructuary is not entitled to alienate the subject matter of the usufruct; he cannot even alienate the usufruct.¹⁰

The application of the rules of usufruct in the context of military occupation has caused serious controversies. Following the Israeli occupation of the Abu Rudeis oil fields in the Sinai peninsula after the Six-Day War, Israel took control of and operated the oil production facilities, produced oil for domestic consumption and for sale and used the proceeds to pay for the occupation of the territory and other costs. While some accepted that Israel could use the proceeds of oil production from existing wells to cover its costs of occupation on the basis of Article 55 of the Hague Regulations,¹¹ a General Assembly resolution declared that ‘all measures undertaken by Israel to exploit the … natural resources of the occupied Arab territories are illegal’.¹² Another controversy centred on Israel’s opening of new oil wells. Israel argued that the discovery of additional reserves and the opening of new wells enhanced the value of the overall asset, thereby coming within the allowance under Article 55 of the Hague Regulations, the sole purpose of which was, according to Israel, to prevent waste or destruction of the asset.¹³ Others, however, argued that a usufruct does not entitle an occupant to enjoy something not previously exploited.¹⁴ Similar debates recurred in the US/UK occupation of Iraq in 2003.¹⁵

9 As Justinian used to say ius alienis rebus utendi fruendi...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preface – John Dugard
• Setting the scene: the legality of economic activities in occupied territories
• 1 Exploiting natural resources in occupied territories – the conjunction between Jus in Bello, Jus ad Bellum and international human rights law
• 2 EU trade relations with occupied territories: third party obligations flowing from the application of occupation law in relation to natural resources exploitation
• 3 Some state practice regarding trade with occupied territories: from the GATT to today
• 4 The EU’s trade relations with northern Cyprus obligations and limits under public international and EU law
• 5 EU labelling practices for products imported from disputed territories
• 6 The EU’s economic engagement with Western Sahara: the Front Polisario and Western Sahara Campaign UK cases
• 7 Western Sahara, the European Commission and the politics of international legal argument
• 8 Business actors in Western Sahara: heightened obligations and responsibilities under the UNGP?
• 9 Offside? Challenging the transnational legality of Israeli football activities in the Occupied Palestinian Territories
• 10 Investment tribunals adjudicating claims relating to occupied territories – curse or blessing?
• Index