Occupation Law Symposium: Response by Matthew Saul

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)]

This is the third response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

Thank you to all of my fellow symposium participants for a very interesting set of posts.

This symposium has clearly raised a number of very important issues. One point that I find particularly interesting is the scope for there to be a difference in the significance of the functional approach in the context of the establishment of an occupation and in the context of a reduction of an extant occupation.

In this respect, I agree with Sari Bashi that the level of control over territory that is necessary for the commencement of the law of occupation is not the same as for its continuation. However, I think it is also important to recognize that there is likely to be a difference in the nature of the governance space that will surround the occupied functions in the two contexts. In the establishment context, the governance space that is left unregulated by the law of occupation (by limiting the application of the law of occupation to the functions undertaken by the external power) has a character that has been created by the target state and its people. In contrast, in the disengagement context, the governance space that is to be left unregulated can be expected to have been affected by the prior, more extensive occupation. Indeed, there is a risk that the scope for the level of regulation of the law of occupation to be reduced in line with a reduction in the direct control of the occupiers will encourage an occupier to exert more influence on domestic politics in the period when it is in full control of the territory. This would be as a means of ensuring that when it reduces control – and thereby benefits from a reduction in obligations and an improvement in the way in which its involvement is projected – matters will still develop across the whole of the territory in accordance with its preferences.

One way to address the scope for the functional approach to be exploited by occupiers could be for some criteria to be posited as to the sort of conditions that must prevail in the space created by a partial disengagement for the functional approach to be activated. In this respect, Aeyal Gross recognizes that there is an issue, when he suggests that ‘the functional approach must not mean that occupiers are relieved of their duties when there is no one else exercising them, or when the occupier’s behavior prevents a legitimate sovereign from exercising them.’ The two aspects highlighted by Aeyal could serve as criteria for determining when it is appropriate to adopt the functional approach in the context of disengagement, but both could benefit from more detail. For instance, should there be a quality threshold in terms of the exercise of certain functions in the space left by disengagement?

Another possible way to guard against exploitation of the functional approach could be to incorporate a suggestion made by Valentina Azarov. This is a reference to the distinction that Valentina makes between general and specific norms of the law of occupation:

If the occupier does not have full control over the functioning of the education system in the occupied territory, in terms of the way schools are administered, curricula set and teachers hired, then the occupier cannot be held liable for defaults made by the local authorities. However, notwithstanding its limited control, the occupier remains fully charged with its responsibility to ensure the enjoyment of the right to education by the occupied population as per Article 50 of the Fourth Geneva Convention, especially in so far as it may be affected by other measures undertaken by the occupier, for instance, those that restrict the freedom of movement in the occupied territory.

Here, Valentina points the way for the determination of the extent to which an occupier is bound by the law of occupation to be based on an assessment of the level of control of a function and the specificity of the provisions related to that function. This could avoid the problematic situation of an occupier being obligated in a detailed manner for activity that it is not directly undertaking. But the continued application of general norms would address the risk of a partial disengagement being undertaken by an occupier as a basis to reduce its legal responsibility under the law of occupation without a corresponding drop in influence over affairs in the territory. One issue this approach raises, of course, is how to distinguish the specific from general norms.

I am very much looking forward to Aeyal’s book!