Revisiting the Law of Occupation
Series: - Nova et Vetera Iuris Gentium, Volume: 30
In Revisiting the Law of Occupation, Hanne Cuyckens assesses the crucial challenges faced by the law of occupation. Through examples such as the occupation of the Palestinian Territories and the 2003 occupation of Iraq, the author convincingly demonstrates that although the law of occupation may no longer be perceived as adequate to address contemporary forms of occupation, a formal modification of the law is neither desirable nor feasible. The author identifies means by which the potential dichotomy between the law and the facts can be addressed without formal modification of the former: 1) flexible interpretation of the law itself; 2) the role of International Human Rights law as gap-filler; and 3) the role of the UNSC as a modulator of the law.
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Hanne Cuyckens obtained her PhD degree at Leuven University in 2015 and was an Assistant Professor of international law at Utrecht University from September 2015 to August 2017. She has published many articles on issues relating to international law and EU external relations. Her most recent publication dealt with the legal status of the Gaza Strip.
Acknowledgments
List of Abbreviations
Introduction
Introduction to Part 1
1 Occupation: A Conceptual Analysis
1 The Concept of Occupation
1.1 The Modern Concept of Occupation is the Product of a Long Evolution Process
1.2 The Determination of a Situation of Occupation is a Factual Assessment
1.3 Definition: The Effective Control Test
1.4 “Even if the said occupation meets with no armed resistance”
1.5 The Occupation of Territory the Title to Which is Not Clear and Uncontested
1.6 The Beginning of Occupation: The Invasion vs Occupation Phase
1.7 End of Occupation
2 Main Characteristics of the Law of Occupation
2.1 Occupation Does Not Confer Title
2.2 Occupation Cannot Alter the status quo ante
2.3 Occupation is a Provisional State of Affairs
3 The Occupation vs. United Nations Territorial Administration Debate: A Question of Consent?
3.1 United Nations Territorial Administration vs. Occupation: A Conceptual Comparative Analysis
3.2 Applicability of
ihl
to
un
Troops: A Prerequisite for the Potential Applicability of the Law of Occupation
3.3 Applicability of the Law of Occupation
3.4 Interim Conclusion: Lessons to be Learned from the Law of Occupation for
un
Territorial Administration?
2 Current Challenges to the Law of Occupation
1 Challenges Induced by the Changing Social and International Environment
2 Specific Challenges Generated by Contemporary Forms of Occupation
2.1 Long-term Occupation
2.2 Transformative Occupation
3 Interim Conclusion: Insurmountable Challenges?
Introduction to Part 2
1 The Flexibility in the Law of Occupation Itself
1 The Manifestation of the Conservationist Principle in the Law of Occupation: A General Overview
2 Article 43 of the Hague Regulations and Article 64
gciv
: Definition and Delimitation of the Occupying Power’s Authority
2.1 Article 43 of the Hague Regulations: A Key Provision of the Law of Occupation
2.2 Article 64
gciv
: A Further Specification of the Rule Contained in Article 43 of the Hague Regulations
2.3 The Adopted Measures Should Not Only be in Accordance with Article 43
hr
and Article 64
gciv
but Should Also be Proportional
3 The Law of Occupation: Flexible Enough to Encompass Change, Even in Long-term Occupation?
3.1 Prolonged Occupation: Affecting the Balance between the status quo and Change
3.2 Flexibility vs. Protection: How to Find the Correct Balance and Prevent Abuse?
4 Interim Conclusion: Some Inherent Flexibility within the Law of Occupation Itself
2 International Human Rights Law as a ‘gap-filler’
1 Comparison between Both Bodies of Law: Differences and Similarities
2 Applicability of International Human Rights Law to Situations of Occupation
2.1 Applicability ratione loci: The Question of the Extraterritorial Application of International Human Rights Obligations
2.2 Applicability ratione materiae
3 The Relationship between International Humanitarian Law and International Human Rights Law in Situations of Occupation
3.1 A Preliminary Analysis of the Relationship
3.2 Trying to Establish the Specific Relation between Both Bodies of Law: Elements Influencing the Relationship
3.3 Conclusion on the Relationship between
ihl
and
ihrl
in Situations of Occupation
4 Interim Conclusion: International Human Rights Law Can to a Certain Extent Play an Important Role as a Gap-filler
3 The United Nations Security Council as a ‘modulator’ of the Law of Occupation
1 Powers of the United Nations Security Council under Chapter
vii 201
2 An Assessment of the Situation in Iraq: Coexistence between the Law of Occupation and a
un
‘mandate’
2.1 The Situation in Iraq under
ihl
2.2 Role of the
un
Security Council in the Occupation in Iraq
3 Interim Conclusion: A Compelling Case for Modulation of the Law of Occupation by the
unsc
When Necessary
General Concluding Remarks
Bibliography
List of Abbreviations
Introduction
Part 1: The Law of Occupation and Current Challenges
Introduction to Part 1
1 Occupation: A Conceptual Analysis
1 The Concept of Occupation
1.1 The Modern Concept of Occupation is the Product of a Long Evolution Process
1.2 The Determination of a Situation of Occupation is a Factual Assessment
1.3 Definition: The Effective Control Test
1.4 “Even if the said occupation meets with no armed resistance”
1.5 The Occupation of Territory the Title to Which is Not Clear and Uncontested
1.6 The Beginning of Occupation: The Invasion vs Occupation Phase
1.7 End of Occupation
2 Main Characteristics of the Law of Occupation
2.1 Occupation Does Not Confer Title
2.2 Occupation Cannot Alter the status quo ante
2.3 Occupation is a Provisional State of Affairs
3 The Occupation vs. United Nations Territorial Administration Debate: A Question of Consent?
3.1 United Nations Territorial Administration vs. Occupation: A Conceptual Comparative Analysis
3.2 Applicability of
3.3 Applicability of the Law of Occupation
3.4 Interim Conclusion: Lessons to be Learned from the Law of Occupation for
2 Current Challenges to the Law of Occupation
1 Challenges Induced by the Changing Social and International Environment
2 Specific Challenges Generated by Contemporary Forms of Occupation
2.1 Long-term Occupation
2.2 Transformative Occupation
3 Interim Conclusion: Insurmountable Challenges?
Part 2: Addressing the Challenges Faced by the Law of Occupation
Introduction to Part 2
1 The Flexibility in the Law of Occupation Itself
1 The Manifestation of the Conservationist Principle in the Law of Occupation: A General Overview
2 Article 43 of the Hague Regulations and Article 64
2.1 Article 43 of the Hague Regulations: A Key Provision of the Law of Occupation
2.2 Article 64
2.3 The Adopted Measures Should Not Only be in Accordance with Article 43
3 The Law of Occupation: Flexible Enough to Encompass Change, Even in Long-term Occupation?
3.1 Prolonged Occupation: Affecting the Balance between the status quo and Change
3.2 Flexibility vs. Protection: How to Find the Correct Balance and Prevent Abuse?
4 Interim Conclusion: Some Inherent Flexibility within the Law of Occupation Itself
2 International Human Rights Law as a ‘gap-filler’
1 Comparison between Both Bodies of Law: Differences and Similarities
2 Applicability of International Human Rights Law to Situations of Occupation
2.1 Applicability ratione loci: The Question of the Extraterritorial Application of International Human Rights Obligations
2.2 Applicability ratione materiae
3 The Relationship between International Humanitarian Law and International Human Rights Law in Situations of Occupation
3.1 A Preliminary Analysis of the Relationship
3.2 Trying to Establish the Specific Relation between Both Bodies of Law: Elements Influencing the Relationship
3.3 Conclusion on the Relationship between
4 Interim Conclusion: International Human Rights Law Can to a Certain Extent Play an Important Role as a Gap-filler
3 The United Nations Security Council as a ‘modulator’ of the Law of Occupation
1 Powers of the United Nations Security Council under Chapter
2 An Assessment of the Situation in Iraq: Coexistence between the Law of Occupation and a
2.1 The Situation in Iraq under
2.2 Role of the
3 Interim Conclusion: A Compelling Case for Modulation of the Law of Occupation by the
General Concluding Remarks
Bibliography
This book will not only be valuable for academics but also for legal practitioners given that it provides an analysis of the current challenges to the law of occupation and potential remedies.