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Preoccupied with occupation: critical examinations of the historical development of the law of occupation

31-03-2012 Article, International Review of the Red Cross, No. 885, by Yutaka Arai-Takahashi

This article examines the historical evolution of the law of occupation from two angles. First, it analyses scholarly discourse and practice with respect to the general prohibition on the Occupying Power making changes to the laws and administrative structure of the occupied country; second it focuses on how the law of occupation that evolved as a European project has rationalized excluding the system of colonialism from the framework of that law.

Abstract

This article examines the historical evolution of the law of occupation from two angles. First, it analyses scholarly discourse and practice with respect to the general prohibition on the Occupying Power making changes to the laws and administrative structure of the occupied country, as embodied in Article 43 of the 1907 Hague Regulations. Many Occupying Powers and scholars have endeavoured to rationalize exceptions to this ‘general principle’ governing the entire corpus of the law of occupation. Their studies support the contingent nature of the law of occupation, with its interpretation being dependent on different historical settings and social context. The second part of the article focuses on how the law of occupation that evolved as a European project has rationalized excluding the system of colonialism from the framework of that law. The historical assessment of this body of jus in bello would be incomplete and biased if it did not address the narratives of such structural exclusivity.

Keywords: law of occupation, historical development, Article 43 of the Hague Regulations, occupying power, legislative authority, conservationist principle, necessity, colonial occupation, World War I, World War II, Cold War, occupation of Iraq.

Biography

Yutaka Arai-Takahashi, LLM (Keio), is Reader in International Law and International Human Rights Law, University of Kent at Brussels and Kent Law School.


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