The Impact of the Legal Right to Self-Determination on the Law of Occupation as a Framework for Post-Conflict State Reconstruction
INTERNATIONAL LAW AND ARMED CONFLICT, N. Quenivet and S. Shah, eds., pp. 398-416, T.M.C Asser Press, 2010
19 Pages Posted: 21 Oct 2009 Last revised: 5 Nov 2012
Date Written: October 19, 2009
A prominent position on the utility of the law of occupation as a regulatory framework for transformative state reconstruction is that the principle of conservation, which requires that the existing infrastructure remains unaltered, renders it unsuitable. There is, however, no reason why the law of occupation could not be modified to be more facilitative of reconstruction of the state and civil infrastructure. In fact, when the legal right to self-determination is treated as the basis for state sovereignty, the chance of modification is increased. This is because such an understanding of sovereignty improves the likelihood of more extensive change and development under the law of occupation – if cast as working towards the realisation of genuine self-government based on the will of the people (the essence of the right to self-determination) – being accepted as consistent with the law’s rationale of preservation of sovereign rights. Indeed, the prominence of democratic reconstruction, a concept with strong links to the right to self-determination, in the occupied Palestinian Territories and occupied Iraq, might incline one to the view that the legal right of self-determination has already stimulated modification of the law of occupation. It is because an appropriate regulatory framework for international involvement in state reconstruction could help realise international order, and to clarify the substance of the law applicable to actual belligerent occupiers, that this chapter addresses both the potential and reality of the impact of the right to self-determination on the law of occupation as a framework for state reconstruction. A central argument is that the legal right to self-determination is an essential element in the explanation for international acceptance of recent practice in breach of the law of occupation but has not yet stimulated legal modification.
Keywords: Law of Occupation, Self-Determination, Sovereignty, Post-Conflict, Reconstruction, Iraq, Palestine
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