Transformative occupation and the unilateralist impulse
31-03-2012 Article, International Review of the Red Cross, No. 885, by Gregory H. Fox
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This article argues that the practice of Occupying Powers does not support the view that liberal democratic transformations are widespread. The conservationist principle serves the critical function of limiting occupiers’ unilateral appropriation of the subordinate state’s legislative powers.
The 2003 occupation of Iraq ignited an important debate among scholars over the merits of transformative occupation. An occupier has traditionally been precluded from making substantial changes in the legal or political infrastructure of the state it controls. But the Iraq experience led some to claim that this ‘conservationist principle’ had been largely ignored in practice. Moreover, transformation was said to accord with a variety of important trends in contemporary international law, including the rebuilding of post-conflict states along liberal democratic lines, the extra-territorial application of human rights treaty obligations, and the decline of abstract conceptions of territorial sovereignty. This article argues that these claims are substantially overstated. The practice of Occupying Powers does not support the view that liberal democratic transformations are widespread. Human rights treaties have never been held to require states parties to legislate in the territories of other states. More importantly, the conservationist principle serves the critical function of limiting occupiers’ unilateral appropriation of the subordinate state’s legislative powers. Postconflict transformation has indeed been a common feature of post-Cold War legal order, but it has been accomplished collectively, most often via Chapter VII of the UN Charter. To grant occupiers authority to reverse this trend by disclaiming any need for collective approval of ‘reforms’ in occupied states would be to validate an anachronistic unilateralism. It would run contrary to the multilateralization of all aspects of armed conflict, evident in areas well beyond post-conflict reconstruction.
Keywords: transformative occupation, conservationist principle, legislative authority, Article 43 of the Hague Regulations, extra-territorial application of human rights.
Gregory H. Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.