The Law of Occupation (International Law in Japanese Perspective)
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This monograph analyzes the historical evolution of the laws of occupation as a special branch of international humanitarian law (IHL), focusing on the extent to which this body of law has been transformed by its interaction with the development of international human rights law. It argues that a large part of the laws of occupation has proved to be malleable while being able to accommodate changing demands of civilians and any other persons affected by occupation in modern context. Its examinations have drawn much on archival research into the drafting documents of the instruments of IHL, including the aborted Brussels Declaration 1874, the 1899/1907 Hague Regulations, the 1949 Geneva Conventions and the 1977 Additional Protocol I. After assessing the complementary relationship between international human rights law and the laws of occupation, the book examines how to provide a coherent explanation for an emerging framework on the rights of individual persons affected by occupation. It engages in a theoretical appraisal of the role of customary IHL and the Martens clause in building up such a normative framework.
timing of such termination as the entry into force of the Peace Treaty of Trianon on July 26, 1921.199 197 198 199 Citing Fauchille, (Traité de Droit international public, 8th ed., Vol. II, No. 1157), Borel observes that: Dès lors, le transfert de souveraineté ne peut être considéré comme eﬀectué juridiquement que par l’entrée en vigueur du Traité qui le stipule et à dater du jour de cette mise en vigueur. (. . .) Le Traité de Neuilly ne contient aucune disposition analogue ﬁxant
amounting to armed conﬂict are taking place”: ibid. Contra, see David, who seems to draw a strict line between rules on conduct of hostilities and those on occupation. This can be seen in his assertion that contrary to Article 23 of the 1907 Hague Regulations, which “ne concerne que les situations d’aﬀrontement”, the general rule that forbids the occupying power from destroying public or private property of the occupied state is not expressly enunciated in the 1907 Hague Regulations: David, supra
discrimination, colonialism, foreign domination and occupation, aggression, foreign interference and threats against national sovereignty, national unity and territorial integrity, threats of war and refusal to recognize the fundamental right of peoples to self-determination. Even so, as Benvenisti notes, references to illegal “foreign occupation” must be understood as a politically motivated assertion. They should not be read as undermining the conceptual ediﬁce of the law of occupation as a
fundamental aspects of human rights to cover basic duties to protect, respect and ensure rights of individual persons as embodied under IHL.99 It is submitted that even the Security Council’s nearly unfettered discretionary power derived from Chapter VII of the UN Charter is constrained by the customary rules of international human rights law and IHL.100 In this 97 See, for instance, A. Vradenburgh, “The Chapter VII Powers of the United Nations Charter: Do They ‘Trump’ Human Rights Law?”,
ill-suited to the determination of individual criminal responsibility before domestic courts.146 Turning to Security Council resolutions as sources of the laws of occupation, the perusal of the travaux préparatoires conﬁrms that the Council can act contrary to requirements of international law, if acting under Chapter VII. However, its power is constrained by the fundamental rules derived from both international human rights law and IHL. The problem is that even the ICJ has refrained from