Towards a Counter-Hegemonic Law of Occupation: The Regulation of Predatory Interstate Acts in Contemporary International Law
Yearbook of International Humanitarian Law (2018 Forthcoming)
41 Pages Posted: 8 Mar 2018 Last revised: 16 May 2018
Date Written: January 1, 2018
This article examines the regulation in international law of situations of foreign territorial control that breach peremptory norms on interstate force and self-determination of peoples, which it designates as unlawfully prolonged occupations. Traditionally, such situations are regulated by the international humanitarian law rules on belligerent occupation, or conflict management law. This practice apparently derives from the distinction between the jus ad bellum and jus in bello, and the dichotomy in the application of the two bodies of law. But this seemingly outdated logic is under pressure, as it also amounts to a silencing and failure to address the legality of the occupying state’s pursuits, and that of the continued denial of the right to self-determination of people to the local population. Applying only the specialized law on occupation, in isolation from other applicable law, overlooks the consequences of unlawfully prolonged occupations on the protection of individual rights, and the systemic integrity of international law. This article re-situates occupation law within its broader normative environment, and proposes a regulatory approach to predatory acts, that would better support the unity, systemic integrity, and value system of contemporary international law.
Keywords: belligerent occupation, jus ad bellum, self-determination of people, territorial acquisition, conflict management law, resolution and prevention law, systemic integrity
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