An Occupying Power’s Authority to Conclude Treaties for Occupied Territories
Can an occupying power conclude treaties relating to the occupied territory? Can it do so solely in its own name or also in the name of the State whose territory is occupied? No clear answer yet exists for these questions, though a short and recent account, especially in the context of the resources of the occupied territory is available from Arne Reiβmann (p. 387-89, in German). Tristain Ferraro provides a more detailed treatment (p. 59). Still, a brief discussion seems appropriate to illustrate one of the many problems that the positive law of occupation does not clearly resolve. Indeed, there is no provision in the Hague Regulations of 1907 (and even less in the Geneva Conventions of 1949) on this issue.
Preliminary Treatment
A note from the Swiss Directorate of Public International Law dated December 15, 2003, provides a basic answer, albeit without satisfactory legal justification (p. 663-64). The question was whether the Coalition Provisional Authority in Iraq had the authority to conclude international agreements on behalf of Iraq. According to the Directorate, “[i]n international law, the principle is that an occupying state has legal power in the country it occupies (Article 43 of the 1907 Hague Convention). This means in particular that the occupying power may enact laws or conclude international agreements on behalf of the occupied state” (our translation). Specific powers conferred on the Authority by the UN Security Council added that, “[i]n the case of Iraq, the situation is even clearer since the UN Security Council has confirmed that the Coalition Provisional Authority will have legal power in Iraq until it is handed over to an Iraqi government” (our translation).
The question then has two aspects: one relating to the jurisdiction of the occupier according to the law of occupation; and the other relating to the jurisdiction of the occupier according to authorizations derived from the UN Charter. As to the former, the Swiss Directorate’s interpretation of the law of occupation seems questionable. Article 43 of the 1907 Hague Regulations requires the occupier to respect, unless absolutely prevented, the laws, institutions, and customs in force in the occupied country. It also grants the occupier legislative and executive power to ensure and restore, as far as possible, public order and life. It appears that this text does not give the occupier a general power to conclude treaties, but at best only a power of conclusion relating to certain objects. Furthermore, Article 43 nowhere specifies that such agreements will be concluded in the name of the occupied State. There are, therefore, several logical leaps in the Directorate’s argument.
Treaties Concluded by the Occupying Power in Its Own Name
Turning to the question of jus tractatus (or, power to conclude treaties) of the occupying power, there is a key distinction between agreements the occupier concludes in its own name and relating to the administration of the occupied territory, and agreements that the occupier intends to conclude in relation to these territories in the name of the occupied State. There is no doubt that international law grants the occupying State the right to conclude, in its own name, a number of international agreements relating to the administration of the occupied territory. As a sovereign State, it enjoys its power to conclude treaties, a power which no rule of international law has taken away from it. These are functional agreements; that is to say, compacts limited in their object to the powers granted by the law of occupation and concordantly prohibited if the occupier uses them, for example, as a substitute for the occupied sovereign’s will or to unlawfully exploit its resources.
They are also transitional, as they are destined to terminate according to their express or implied terms, but at the very latest, when the occupation itself ends. These treaties, therefore, contain a tacit termination clause of a factual nature: at most, they will last as long as the occupation lasts. This principle also applies in territories that are not formally under belligerent occupation, as was the case with Kosovo after 1999. Because Serbia accepted the conditions of UN Security Council Resolution 1244, the overwhelming majority of legal scholars determined that the territory of Kosovo was peacefully occupied. Yet the UN Interim Administration Mission in Kosovo—in its own name, not in the UN’s or Kosovo’s name—ended management and cooperation agreements relating to the administration of this territory.
Treaties Concluded in the Name of the Occupied State
A completely different question, to which we now turn, concerns the extent to which an occupier can conclude an agreement in the name of the occupied State.
First, international practice does not support the occupying power concluding agreements on behalf of the occupied State, not even in the case of the German and Japanese quasi-debellatio after the Second World War. One might therefore be tempted to conclude that there is a customary rule, given that occupying States have never claimed this right and that this fact constitutes a practice (repetitio facti) spread over time. If an opinio juris holding that one must refrain from concluding such treaties (because the occupying State lacks competence) accompanies this abstention, a prohibitive norm of customary international law results.
However, such an opinio juris is not certain. Occupying States may have simply considered that it was better to avoid embarking on this path because of the uncertainties surrounding the exercise of this competence. In this case, there would not be a conviction of illegality or incompetence, but only an opinion of uncertainty. Even more likely, a situation requiring the conclusion of such treaties has never arisen. In this case, no opinio juris will have been expressed. Let us therefore limit ourselves to noting that international practice seems probably to invalidate rather than confirm a power to conclude such treaties.
Second, the principles and rules of modern occupation law seem to condemn the idea that the occupier can conclude agreements on behalf of the occupied. Modern occupation law is based on the idea that occupation is a limited and functional power, stemming from de facto territorial control that cannot displace the sovereignty of the occupied State. The principle of peoples’ self-determination came after 1945 to reinforce the idea that all long-term political choices affecting the occupied territory must be left to the free decision of the local people. A people can only freely make this choice after the end of the occupation. While occupation theoretically involves the imposition of two State powers over the same territory, these two normative layers do not have the same scope or the same nature. The occupied power continues to enjoy sovereignty over its territory and therefore has the exclusive right to determine the fate of this territory through decisions involving structural choices.
Third, there is also a lack of necessity to recognize such a power. At any time of the occupation, the occupying State can conclude treaties relating to its occupational powers in its own name. Thus, there is no need to grant it the additional power to conclude treaties in the name of the occupied State, a matter which patently encroaches upon the sovereignty of the latter.
This is also why the law of occupation—through Article 43 of the 1907 Regulations and Article 64 of the Fourth Geneva Convention of 1949—requires the occupier to respect local institutions and laws as much as possible. The occupier, for its part, only possesses functional power, which is conferred by international law. This power extends only to those powers specifically recognized (expressly or by necessary implication) and indispensable for carrying out the administration of the occupied territory. In view of the functional (needs of occupation), limited (powers of attribution), and temporary (occupation as an interlude of war) character informing modern occupation law, the occupier’s powers are narrow, existing against the backdrop of the occupied State’s continued sovereignty.
Taking all these elements into account, a jus tractatus of the occupier on behalf of the occupied State is not tenable. The permanence of the occupied State’s sovereignty over the territory in question means that the occupying State needs a norm of authorization to conclude treaties on behalf of the occupied State. Lacking such a norm means that a treaty concluded in the occupied State’s name by the occupying State remains, for the occupied State, a res inter alios acta. Put differently, the occupied State is a third party relative to the treaty, as no international norm obliges it to recognize or adopt it.
For certain minority theories—rejected by current positive law—other solutions are necessary. According to one author, among others, writing in 1911 (M. Marinoni, Della natura giuridica dell’occupazione bellica, p. 50), the occupying State becomes the representative of the occupied State by virtue of an international legal norm that holds the State legally replaces the occupied State. The occupying State holds its concrete powers as an occupier not by virtue of international law, but simply by virtue of the domestic law of the occupied State. In such a construction, it would be self-evident that the occupying State could conclude treaties on behalf of the occupied State, since it would exercise, by representation, the jus tractatus of the latter. There is no need to pursue these reflections here, since it is obvious that this theory is inconsistent with the current law of occupation.
Moreover, thorny problems arise if the occupying State controls only part of the occupied State’s territory. Saying the occupying State can conclude treaties on behalf of the occupied State for the entire territory of the latter seems contrary to Article 42 of the 1907 Hague Regulations, which limits the occupier’s powers to the area it effectively controls. Such a power would also encroach on the jurisdiction of the power de facto controlling the unoccupied zone. The occupier cannot have jurisdiction over areas it does not control. If the occupied State accepts such a treaty, ex ante or ex post, or mandates the occupying power to conclude it, the situation is different, as the treaty would bind the occupied State. In these cases, it will be problematic to determine the extent to which the government of the occupied State possesses the necessary independence to “freely” consent to such transactions.
But what if the occupation is prolonged? The question is too broad for this post, but it does not seem, at first glance, that jus tractatus applies to the occupier as a result of any prolonged presence. Moreover, since the concept of “prolonged occupation” has no definition, a series of definitional issues would arise, opening the door to arbitrary practices.
Yet what about the second scenario, that is, the power of the UN Security Council to authorize the occupying State to conclude a treaty on behalf of the occupied State under Chapter VII of the UN Charter? Suffice it to say that it is doubtful whether the Council possesses such power in the case of a belligerent occupation. This power is not necessary to ensure the proper administration of the occupied territory. Instead, the power to conclude treaties on behalf of the occupier and the Council’s power to issue binding resolutions are sufficient in this regard. The UN Charter does not grant a power unnecessary to fulfill the Council’s functions (i.e., maintaining or restoring peace).
Termination of Occupation-Related Treaties and the Law of Treaties
The law of treaties raises another interesting question. As we know, Article 42(2) of the Vienna Convention on the Law of Treaties (VCLT) says that the grounds for termination provided for in the VCLT are exhaustive except for any additional grounds for termination a treaty itself provides. In our context, if the treaty concluded by the occupier contains an express termination clause for the end of the occupation, the logic of Article 42(2) will apply.
On the contrary, if there is no such termination clause, it will be necessary to go further in reasoning. One could consider that the treaty implies such a clause, under the theory that every treaty implicitly contains a resolutory clause under some concept of rebus sic stantibus. This view is not obvious, however, because Article 42(2) appears at first sight to require an explicit clause (it speaks of “provisions of the treaty,” and it aims to circumscribe as strictly as possible the grounds for extinguishing treaties), unless the interpretation lines up with the law relating to the denunciation of treaties, where implicit denunciation clauses are permitted (VCLT, art. 56(1)(a)). Otherwise, one could invoke Article 73 of the VCLT, which says that State succession and armed conflicts, in their effects on treaties, are not governed by the VCLT.
Therefore, it is clear that the law of armed conflict (LOAC) broadly, and the law of occupation specifically, provide an additional ground for the termination of certain treaties. Concluded solely for the period of occupation, they automatically lapse when this factual condition disappears. As soon as the occupation ends, such treaties lapse, unless the entitled parties renew them by a kind of legal novation. It is possible to return here to the implicit resolutory clause, anchored this time in a customary norm of LOAC in the broad sense (effects of armed conflict on treaties) and not necessarily in the treaty itself (extrinsic, not intrinsic). Consequently, there would be grounds for termination beyond the provisions of the VCLT, which the latter implicitly recognizes through Article 73.
Concluding Thoughts
In summary, treaties concluded in the name of the occupied State are prohibited, except in the case of a mandate granted by the occupied State, which is very unlikely. Furthermore, treaties concluded in the occupier’s own name are allowed in general terms when related to the administration of the occupied territory, or to the functions of the occupier in these territories. However, the law prohibits them if they appear to imply action as the sovereign of the occupier or the disposal of resources of the occupied territory (e.g., the Moroccan agreements disposing of resources of Western Sahara; see Reiβmann, p. 760, with many references). Finally, these treaties can apply only during the occupation phase, meaning they terminate, and the parties may need to renegotiate them at the occupation’s conclusion.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Yevgen Nasadyuk
