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Towards an International Law of Brigandage: Interpretative Engineering for the Regulation of Natural Resources Exploitation

Published online by Cambridge University Press:  17 January 2013

Jean D'ASPREMONT
Jean D'ASPREMONT*
Affiliation:
University of Manchester, United KingdomJ.dAspremont@uva.nl
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Abstract

The exploitation of natural resources in times of conflict has been the object of a prolific literature due to the extremely laconic character of the standards of conduct prescribed by the Hague and Geneva Conventions. Such laconicism has led scholars to be creative in ensuring that this central aspect of modern conflicts falls within the scope of existing legal instruments. This article starts by depicting the rich argumentative creativity developed by scholars and experts to ensure a more comprehensive regulation of what has often been perceived as a form of international brigandage. Subsequently it reflects on the biases of the professional community that has dedicated its efforts to the elaboration of a fairer framework of natural resources exploitation in times of conflict. In particular, it formulates some critical remark on the “just world business” that has dictated the methodology behind most of the interpretative engineering to be found.

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Asian Journal of International Law , Volume 3 , Issue 1 , January 2013, pp. 1 - 24
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Copyright © Asian Journal of International Law 2013

Affirming the incapacity of the Hague RegulationsFootnote 1 and the Geneva ConventionsFootnote 2 to regulate all aspects of contemporary armed conflicts is undoubtedly truistic. Indeed, stretching the scope of application as well as the intended meaning of these conventional instruments has been both the driving force and the raison d’être of the humanitarian law scholarship of the last century. Nothing is more illustrative of this general methodological pattern than the debates about the regulation of the exploitation of natural resources in times of conflict. This is not surprising. The natural resources for which the Hague and Geneva Conventions provided standards of conducts do not correspond to those natural resources whose exploitation fuels wars in the twenty-first century. This gap in the conventional regulatory framework spawned a prolific literature and led scholars to be most innovative and creative in ensuring that this central aspect of modern conflicts falls within the scope of existing legal instruments, especially those pertaining to belligerent occupation.Footnote 3 It is this thorny substantive question, as well as the epistemic strategies to which legal experts on conflicts have resorted, that this contribution will focus on.

Experts, scholars, judges, councils, and advocates have long conceived the exploitation of natural resources in times of conflict as a form of international brigandage which ought to be reined in, if not entirely eradicated. Such an international form of brigandage has indeed been perceived as particularly harmful as it could potentially constitute an incentive to war and occupation and to the prolongation thereof.Footnote 4 It cannot be excluded that those experts and scholars have simultaneously been inspired by a natural law paradigm according to which one cannot benefit from one's own crime (ex injuria jus non oritur). It is probably with this manifold rationale in mind that many scholars, experts, and judges have ventured into the elaboration of a stricter regime of natural resources exploitations in situations of conflict.

Although informed by a similar agenda, these scholarly enterprises have gone down different conceptual routes. It is the ambition of this article to critically depict the argumentative engineering in which these scholars and experts have engaged for a better regulation of natural resources exploitation in order to critically evaluate each of these interpretative moves. The article starts by mapping the various interpretative tools found in adjudicative practice and international legal scholarship intended to ensure a better control of international brigandage in times of war before formulating some critical, methodological, and epistemological remarks upon the argumentative strategies of scholars and experts striving for a better regulation of the exploitation of natural resources in situations of conflict.

I. Mapping argumentative creativity in the context of the exploitation of natural resources

Natural resources exploitation often occurs in situations of occupation, for it requires actual and effective control of the territory concerned. It will not come as a surprise that experts and scholars have accordingly attempted to make use of existing provisions pertaining to the exploitation of natural resources under the applicable humanitarian law on belligerent occupation. Yet such an interpretative move has necessitated intricate dialectical contortions which have not always accommodated situations of natural resources exploitation short of occupation, which are generally characterized by armed conflicts of an internal character. This is why alternative constructions have been devised beyond international humanitarian law (IHL).

A. The Mainstream Route: Dialectical Use of Usufruct Under the Law of Belligerent Occupation

As natural resources brigandage often occurs in situations of belligerent occupation, it is the humanitarian law on belligerent occupation that has served as the most natural platform for the interpretative constructions of scholars seeking to elaborate a regulatory regime for natural resources exploitations in times of conflict.

It is a platitude to say that the whole regime of belligerent occupation is built on the idea that factual exercise of governmental power over a territory does not bring about any title as to that territory.Footnote 5 This severance between facts and titles—and the radical rejection of the idea ex factis jus oritur in situations of occupations—explain all the restrictions to the powers which the occupant can exercise under the regime of the Hague Regulations and Geneva Conventions. This is especially true when it comes to goods and property on the occupied territory.

With respect to natural resources, it is well known that the regime put in place is rather succinct. If privately owned, natural resources are protected by Article 46 of the Hague Regulations,Footnote 6 Article 147 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War,Footnote 7 and the prohibition of pillage.Footnote 8 Yet this is more of a textbook case. Indeed, as a matter of fact, natural resources are usually considered public property. Because the protection offered to public property under the Hague Regulations differs according to whether the resource concerned is immovable or movable, it must be recalled that unless already harnessed and stored,Footnote 9 natural resources are considered by the majority of scholars as immovable property.Footnote 10 This categorization has also been endorsed in adjudicative practice.Footnote 11 As a result of such classification, seizure of natural resources falls, according to the mainstream interpretation, under Article 55 of the Hague Regulations, which lays down a regime of usufruct for the exploitation of resources by the occupying power.Footnote 12 As such, this already constitutes a remarkable interpretative move, for the ambit of Article 55 is much broader than the exploitation of natural resources. Its primary focus is on public buildings and real estate. Somehow, natural resources are only mentioned in passing and in extremely laconic terms, with mention being made only of forests and agricultural estates. This, however, did not prevent scholars and experts from seeking to build the regime of natural resources exploitation in times of occupation on that provision.

While there is a consensus among scholars about the applicability of Article 55 of the Hague Regulations to the exploitation of natural resources in times of conflict, controversies have been aroused by the silence of that provision; especially the fact that it does not mention mines, oil, gas, or water, which are among those resources that are at the heart of contemporary conflicts. Nor does it mention carbon sinks or shale gas, which may be the breeding grounds of the conflicts of tomorrow.

The laconicism of Article 55 is why scholars came with patch-ups to infer from a terse provision some helpful guidance to regulate the harnessing of those resources not mentioned in Article 55. Yet the inclusion of mines, oil, gas, and water within the ambit of the usufruct regime under Article 55 necessitated some creative argumentation. It is important to emphasize, however, that such creativity was not so much the result of the silence or laconicism of that provision. Indeed, the opinion prevailed that the list of natural resources falling under Article 55 is not exhaustive and could be extended to other types of natural resources than those expressly mentioned in Article 55. Interpretative engineering proved inevitable because the principle of usufruct enshrined in that provision cannot ex hypothesis accommodate non-renewable resources. Indeed, according to the mainstream—perceived—meaning of usufruct,Footnote 13 consumption cannot encroach the capital. Obviously, exploitation of non-renewable minerals inevitably consumes the capital. If the exploitation of mines, water, oil, and gas were to fall under the regime of usufruct, the exploitation of oil, gas, and water would be simply prohibited. In that sense, the quest to include the exploitation of such resources within the ambit of Article 55 has not been without paradox. Interestingly, the prohibitive paradigm to which their inclusion in the scope of that provision leads has not daunted scholars and experts. Riveted by their above-mentioned peace-promoting and natural law objectives, scholars and experts have continued to argue for the exploitation of such natural resources to fall under the usufruct regime laid out by that provision. Yet because a total exploitation has usually seemed unreasonable from a policy perspective, they have seen the need to engage in some subtle argumentative engineering to bypass the prohibition of exploitation that the regime of usufruct in Article 55 would prescribe.

It is particularly noteworthy that adjusting the prohibition of exploitation of non-renewable resources inherent in the regime of usufruct has led to some intricate dialectical reasoning. Indeed, it has been argued in the literature that, in the particular case of mines or oil fields, non-exploitation may lead to a decline of production or even a frustration of the ability to exploit the natural resource concerned. Exploitation was accordingly construed as a way to preserve the possibility of harnessing such non-renewable resources.Footnote 14 In such cases, however, this inevitable stretch of the text of Article 55 has been compensated by the countervailing affirmation that the exploitation must not exceed the average production levels established prior to the occupation—which is at odds with the total freedom classically left by the usufruct regime as to the destination of the yields.Footnote 15 Interestingly, authority for such idiosyncratic construction regarding exploitation of non-renewable resources was gleaned from domestic case-law dealing with a renewable natural resource mentioned in Article 55.Footnote 16 Be that as it may, however innovative this argumentative construction may be, it does not provide any indication for situations where mines, oil, and gas fields have not yet been the objects of exploitation. On this particular point, scholars have proved divided. Some have argued that the occupying power could not open new fields as it would run against the rule of usufruct enshrined in Article 55 and would lead to an encroachment of the capital.Footnote 17 The majority, however, probably coming to terms with the reality of modern occupation, came to advocate greater permissibility.Footnote 18

In the latter interpretation, it is interesting to note that this new departure from the usufruct regime of Article 55 was again compensated by a countervailing limit, that is the destination of the yields of the exploitation. Indeed, those scholars defending the right of the occupier to exploit mines, oil, and gas introduced a destination-based limitation to this new form of usufruct, namely that the product thereof must be used to the benefit of the local population. That means using the yields for administering the oil fields, providing assistance to the indigenous population, or constructing new civilian infrastructure.Footnote 19 In that sense, the communitarian spending of the yields of the exploitation was seen as permitting the ex post facto legitimization of an exploitation that was, otherwise, not permitted under Article 55 of the Hague Regulations.

The above-mentioned interpretative moves made by scholars and experts with a view to including exploitation of such non-renewable resources under the regime of usufruct of Article 55 have thus spawned some artful argumentative contortions. These contortions have taken the form of a dialectical reasoning between the nature of the capital and the destination of the yields. Indeed, according to the mainstream interpretation described above, encroachment of the capital in the case of non-renewable natural resources is offset by a communitarian use of the yields thereof. Conversely, the yields of renewable resources can be used at whim by the occupying power, thereby elevating the renewable nature of natural resources into a condition for non-communitarian use of fruits of exploitation.

These dialectical constructions around Article 55 of the Hague Regulations have not been deemed unreasonable or far-fetched because they seem to have remained within the boundaries set by international judges. The famous Nuremberg limitation, according to which the economy of an occupied country can only be required to bear the expenses of the occupation,Footnote 20 or the finding of that Tribunal in the Krupp judgment which provided that “[j]ust as the inhabitants of the occupied territories must not be used in such a manner as to wage war … so must the economic assets of the occupied territories not be used in such a manner”.Footnote 21 This finding underpinned the idea that the occupier did not enjoy unfettered leeway as to how the yields of the capital may be used while not expressly rejecting the application of the rule of Article 55 to non-renewable resources. Such pronouncement has been more particularly interpreted as indicating that the product of exploitation can only be dedicated to defrayment of the expenses of the occupation.Footnote 22 Some scholars tend to deduct some additional indications from the International Court of Justice's (ICJ) advisory opinion on Namibia, which have not contradicted the above-mentioned argumentative creativity.Footnote 23 Likewise, the elliptical pronouncement of the ICJ in its famous Armed Activities caseFootnote 24 left intact the room for the interpretative creativity described above as the Court confirmed the application of the usufruct regime provided in Article 55 to non-renewable resources while alluding to a possible legal restriction to the use of the yields thereof.Footnote 25

It is noteworthy that the practice by political bodies like the Security Council has also seemed, in the view of the very scholars who have promoted the above-mentioned creativity, to have inclined towards the interpretative creations reported above. Indeed, the famous Resolution 1483,Footnote 26 which is further discussed below,Footnote 27 has been interpreted as confirming the inclusion of non-renewable resources under the usufruct regime of Article 55, the limitations imposed on the use of the yields of the exploitations, and the idea that those fruits can only be dedicated to the defrayment of the occupation costs and the needs of the local populations.Footnote 28 In the view of the present author, this interpretation of Resolution 1483 could be contested—it could be argued that such an interpretation is not the result of Article 55 itself but rather boils down to a specific derogative regime put in place by the council by virtue of its Chapter VII powers and Articles 25 and 103 of the UN Charter.Footnote 29 I will revert to this controversy later.Footnote 30 It only matters now to highlight here that the dialectical interpretative moves noted above have found, at least according to the dominant interpretation, an echo in the practice of the Security Council.

The dialectical argumentative moves inherent in the contradictions between the textual constraints of IHL and the—sometimes paradoxical—peace-loving and naturalistic ambitions of scholars and experts seeking to bring the exploitation of non-renewable resources under the usufruct regime have inflated the—already considerable—complexity of IHL. Moreover, the regime of Article 55 of the Hague Regulations has not always been adequate to regulate the exploitation of natural resources in situations other than occupations, especially internal armed conflict. It is generally the exacerbation of the intricacy of IHL and problems of natural resources exploitations outside traditional situations of occupation that has persuaded some scholars to push the above-mentioned agenda through other routes. These other interpretative strategies to come to grips with the exploitation of natural resources in times of conflict are examined in the next section.

Before turning to the analysis thereof, an ultimate remark must be formulated about customary international law. Indeed, when it comes to the development of a regulatory regime for the exploitation of natural resources in times of conflict, the traditional room for interpretative manoeuvre provided by customary international law,Footnote 31 for once, did not constitute the fall-back option for interpreters whose creativeness was deemed frustrated by the textual restrictions of conventional IHL.Footnote 32 When it comes to devising a regulatory regime for the exploitation of natural resources in times of occupations, the convenient interpretative leeway inherent in custom has rather given way to other interpretative engineering exercises that now ought to be briefly exposed.

B. Alternative Routes Beyond International Humanitarian Law

As was explained in the previous section, the platform offered by international humanitarian law to develop a regulatory framework for natural resources brigandage has quickly shown its limits and alternative routes have been devised. Mention is briefly made here of:

  1. (1) International human rights law;

  2. (2) International criminal law;

  3. (3) The principle of permanent sovereignty over natural resources;

  4. (4) The law of collective security;

  5. (5) Environmental law; and

  6. (6) Due diligence.

1. International human rights law

It is a very common inclination of scholars, judges, and experts, when confronted by the limitations of IHL, to turn to human rights law. Actually, it is the protective deficiencies of IHL—especially when it comes to armed conflict of a non-international character—which have led regional and international courts to extend the protection offered by human rights to those situations, a move that has been almost unanimously acclaimed by legal scholars. It is accordingly unsurprising that the difficulty of inferring a clear and convincing regime for the exploitation of natural resources from the Hague and Geneva Conventions induced scholars to seek to build such a regulatory framework on human rights law. This is why general human rights conventions have been mentioned as a possible avenue to address problems of the exploitation of natural resources in times of occupation.Footnote 33 The specific protection offered by economic and social rights has been more particularly invoked by others; this is especially so with regards to the right to water for questions of the exploitation of water resources.Footnote 34 This interpretative move has certainly been buoyed by the ICJ's recognition of the application of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in the Palestinian occupied territories.Footnote 35

The obligation to respect human rights in situations of conflictFootnote 36—particularly in the case of belligerent occupation—is no longer contested.Footnote 37 Yet one may wonder whether this argumentative option is necessarily better than traditional IHL. First, it is not always certain that, at least when it comes to movable property, the protection offered by human rights necessarily outpaces that of IHL, for the former only prescribes an obligation of compensation in case of deprivation.Footnote 38 Moreover, the standard of conduct enshrined in human rights law—especially with regard to social and economic rights—often lacks the self-sufficiency and normative autonomy to constitute a yardstick upon which the legality of the exploitation of natural resources by occupying powers could be evaluated.Footnote 39 These are probably some of the reasons why this argumentative option did not convince everyone and why other routes have been explored.

2. International criminal law

Seeking to curb the exploitation of natural resources that takes the form of brigandage has led another area of scholarship to try the avenue of criminal law. In particular, the looting of natural resources in times of conflict has brought about scholarly endeavours to design a specific war crime of pillage of natural resources.Footnote 40 Such a construction has been grounded in some of the specific provisions of the Rome Statute of the International Criminal Court (ICC),Footnote 41 namely:

  1. (1) Article 8(2)(a)(iv) on the extensive destruction and appropriation of property;Footnote 42

  2. (2) Article 8(2)(b)(xiii) and (c)(xii) on destroying or seizing the enemy's property;Footnote 43 and

  3. (3) Article 8(2)(b)(xvi) and (e)(v) on pillage dealing respectively with armed conflicts of an international character and armed conflicts of a non-international character.Footnote 44

Such construction has also been grounded on the equivalent provisions of the Statutes of the International Criminal Tribunal for Rwanda (ICTR)Footnote 45 and the Special Court for Sierra Leone (SCSL).Footnote 46

The idea of international criminal responsibility for looting natural resources has, however, proved difficult to implement. Not only would it require that a nexus with the conflict be established,Footnote 47 it would also bring about huge difficulties from a conceptual and policy-oriented point of view, with the adequacy of international criminal law to address issues of natural resources exploitations being called into question.Footnote 48 It is accordingly no surprise that international judges have not shown much enthusiasm. Only the so-called industrialist cases of the Nuremberg Tribunal could provide some judicial authority.Footnote 49 The International Criminal Tribunal for the former Yugoslavia (ICTY), for its part, only alluded to “systemic economic exploitation”, without elaborating on whether exploitation of natural resources ought to be included therein.Footnote 50 In the ICC indictments in the Congolese cases, despite the fact that the exploitation of natural resources was recognized as a central factual element of the conflict, it was decided that prosecution would not be sought for the war crime of looting of natural resources.Footnote 51 Such an attempt was made in the Taylor case before the Special Court of Sierra Leone but the prosecutor eventually backtracked.Footnote 52 In that sense, it is reasonable to say that the concept of criminal responsibility for pillage has yet to find an actual judicial endorsement.

3. The principle of permanent sovereignty over natural resources

Among the other argumentative strategies in which experts and scholars have ventured to provide a framework to the exploitation of natural resources, the resort to the principle of permanent sovereignty over natural resources has been recurrent. The invocation of the principle of permanent sovereignty over natural resources to regulate the exploitation of natural resources in times of conflict is grounded in the famous UN General Assembly Resolution 1803 (XVII) of 14 December 1962. This instrument, although not expressly addressing the exploitation of resources in times of occupation, is taken to provide some support for such a hypothesis. It stipulates:

[T]he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned … the exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.Footnote 53

This prescription that natural resources must always be exploited in the interest of the wellbeing of the people of the state concerned holds, according to this reading of that resolution, irrespective of the authority exercising effective control on the territory concerned. That would mean that, despite not expressly referring to times of occupation, such a prescription could apply equally to both the legitimate government and the occupying power. This interpretation, albeit very controversial, has allowed this principle to be extensively invoked in situations of occupation.Footnote 54

Having gained currency in the diplomatic arena as well as in international legal scholarship,Footnote 55 the principle of permanent sovereignty over natural resources proved to be an argument that surfaced in courtrooms. In particular, it was invoked by the counsels of the Democratic Republic of Congo (DRC) in the case it brought against neighbouring Uganda in relation to conduct by the latter which pertained to grievances arising from the exploitation of resources on the territory of the DRC as a result of (and in the context of) an occupation. The principle of permanent sovereignty over natural resources occupied an important place in the DRC's memorials submitted to the ICJ, elevating the violation of the principle of sovereignty over permanent resources as an autonomous ground of responsibility.Footnote 56 It is nonetheless well known that this autonomous source of wrongfulness was brushed aside by the ICJ in its decision in the Armed Activities case. Indeed, the ICJ decided to appraise the lawfulness of Uganda's conduct exclusively on the basis of the Hague Regulations and Geneva Conventions and shied away from examining it in the light of the principle of permanent sovereignty over natural resources.Footnote 57 As is often the case however, when a court—and particularly the ICJ—turns down the application of a rule invoked by the parties, it ventures into a conceding obiter as to the status of such a—non-applicable—rule. As did the Court regarding the erga omnes character of the principle of self-determination in the East Timor case,Footnote 58 the Court, in the Armed Activities case, while refusing to judge Uganda's behaviour on that basis, elevated the principle of permanent sovereignty over natural resources to customary status.Footnote 59

The elevation of the principle of permanent sovereignty over natural resources to customary status is certainly very questionable. Not least because it can be argued that this principle lacks the minimum normative flesh that is necessary for a rule to crystallize into a customary ruleFootnote 60—a requirement formulated by the ICJ in the North Sea Continental Shelf caseFootnote 61 and the Asylum case.Footnote 62 The affirmation by the ICJ of the customary character of the principle of permanent sovereignty over natural resources is even more surprising, for it could even be speculated that one of the reasons why the Court refused to apply the principle in the Armed Activities case is because of the extremely vague standard of conduct that such a principle prescribes, in such situations. Indeed, when a court of law has the choice between the application of an extremely vague standard and a less vague one, it will usually be inclined to prefer the latter. It remains that, despite all its normative deficiencies, scholarsFootnote 63 and individual judgesFootnote 64 have pursued such argumentation with a view to offering a stricter framework for the exploitation of natural resources in times of conflict. Such an interpretative construction has yet to be endorsed in adjudicatory practice.

4. The law of collective security

The law of collective security probably offers the framework within which the exploitation of natural resources—and particularly that of non-renewable resources that hardly fit in the usufruct regime laid down by the law of belligerent occupation—can be most efficiently regulated. Yet making the UN Charter mechanism perform that function is not a move that legal scholars and experts can achieve in isolation. The resort to the collective security mechanism presupposes an actual political will by the main actors of the international community. The political will to use the UN system to curb or regulate the exploitation of natural resources in times of conflict has not always remained elusive.Footnote 65 Without specifically igniting the UN collective security mechanism, situations have arisen where the Security Council declared, in abstracto, “its determination to take action against illegal exploitation and trafficking of natural resources and high-value commodities in areas where it contributes to the outbreak, escalation or continuation of armed conflict”.Footnote 66 These statements in the abstract have sometimes been followed by concrete actions. For instance, the Security Council came to impose direct bans on the trade of commodities, as illustrated by Resolution 864 (1993) pertaining to the situation in Angola,Footnote 67 Resolution 1306 (2000) regarding the situation in Sierra Leone,Footnote 68 and Resolution 1343 (2001) concerning the situation in Liberia.Footnote 69 In other cases it designed mechanisms or sanctions offering indirect restrictions on the exploitation of natural resources.Footnote 70

Regarding more specifically situations of occupation, the best-known example of an attempt by the Council to regulate the exploitation of natural resources by occupying forces is Resolution 1483, in which the Council, after stressing “the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command”, decided that:

[A]ll export sales of petroleum, petroleum products, and natural gas from Iraq following the date of the adoption of this resolution shall be made consistent with prevailing international market best practices, to be audited by independent public accountants reporting to the International Advisory and Monitoring Board referred to in paragraph 12 above in order to ensure transparency, and decides further that, except as provided in paragraph 21 below, all proceeds from such sales shall be deposited into the Development Fund for Iraq until such time as an internationally recognized, representative government of Iraq is properly constituted.Footnote 71

It additionally decided that:

5 per cent of the proceeds referred to in paragraph 20 above shall be deposited into the Compensation Fund established in accordance with resolution 687 (1991) and subsequent relevant resolutions and that, unless an internationally recognized, representative government of Iraq and the Governing Council of the United Nations Compensation Commission, in the exercise of its authority over methods of ensuring that payments are made into the Compensation Fund, decide otherwise, this requirement shall be binding on a properly constituted, internationally recognized, representative government of Iraq and any successor there to.Footnote 72

Interestingly, this paragraph of the resolution has been almost unanimously interpreted as implying that the occupant is entitled to utilize public resources provided that such yields benefit the local population.Footnote 73 There has nonetheless been much discussion as to the extent to which this resolution dovetails with the usufruct regime of Article 55 of the Hague Regulations, or rather puts in place a sui generis regime fitted to the situation in Iraq. The dominant view has been that the Council has authoritatively underpinned the above-mentioned innovative interpretation of Article 55 of the Hague Convention according to which the destination of the yields must be restricted to the defrayment of the occupation costs and the needs of the local population.Footnote 74 For the present author, this view is not entirely convincing. First, because this presupposes that the usufruct regime laid down by Article 55 has actually grown into a regime that allows the exploitation of non-renewable resources while putting a restriction on the destination of the yields. Second, it is not entirely certain that the Council intended to conform itself to the law of belligerent occupation. Rather, it seems that the Security Council decided to adjust that regime, by virtue of its powers under Articles 25 and 103 of the UN Charter, to make it fit within the situation of the occupation of Iraq. This interpretation, in the view of this author, seems underpinned by the finding that the whole regime of occupation put in place in Iraq was specifically designed to perform a function entirely at odds with that of the law of belligerent occupation, namely institution building and regime change.Footnote 75 In that sense, it is not unreasonable to claim that the Council never intended to apply the law of belligerent occupation, including the aspect of the exploitation of natural resources, and customize it to its liking. Thus the restriction on the destination of the yields of the exploitations seems to be rather the outcome of a derogative move by the Council to install an ad hoc regime of occupation rather than an application of the general regime enshrined in the Hague Regulations.

Irrespective of the particular situations of the occupation of Iraq, the foregoing shows that the law of collective security provides significant room and instruments to impose caps and restrictions on the exploitation of natural resources in times of conflict, including in situations of occupation. This being said, such a possibility, as was explained above, constitutes a construction upon which scholars and experts have a very limited grip. This is why the law of collective security has occupied a limited place in the interpretative engineering of those seeking to regulate the exploitation of natural resources by occupying forces. While acknowledging the possibility that the law of collective security helps address problems of the exploitation of natural resources in specific situations, these scholars and experts have rather drawn on the practice therein to reinforce their dialectical argumentative moves within the framework of the law of belligerent occupation. These interpretative constructs have been examined above and it is not necessary to revert to them here.Footnote 76

5. Environmental law

It is generally contended that environmental law treaties continue to apply in times of armed conflict. Such a—refutable—assumption is, for instance, supported by the International Law Commission in its Draft Articles on the Effects of Armed Conflicts on Treaties (2011).Footnote 77 As a result thereof, it cannot be excluded that environmental treaties continue to bind all the state parties, including the occupying power, to an armed conflict. Environmental law instruments themselves occasionally explicitly recognize the application of environmental law in times of conflict.Footnote 78 Contrary to most treaties, however, prescriptions enshrined in environmental treaties are usually applicable without restrictions ratione loci. By virtue of the very nature of the obligations enshrined in these treaties, the implementation of such rules is not restricted to each party's territory. This means that not only are the state parties bound to respect such obligations in times of conflict, but they are also obligated to implement such obligations outside their own jurisdiction. It is true that environmental obligations do not usually set limitations to the exploitation itself but rather to the environmental fallout of this. In that sense, international environmental law does not prohibit the depletion of the capital in the case of non-renewable resources. The exploitation of natural resources in situations of occupation will only fall within the ambit of environmental law in the event that it causes damage to the environment. This is certainly not a textbook case, especially if one thinks about oil and gas drilling or the development of shale gas exploitation.

Despite the general applicability of environmental law to situations of conflict, environmental law has proved to be of little help for scholars wishing to elaborate a stricter regime of natural resources exploitation. Although recognizing its potential, scholars and experts have quickly come to terms with the absence of a precise standard of conduct when it comes to the exploitation of natural resources in times of conflict.Footnote 79 Like economic and social rights, many of environmental law's provisions have been beset by a lack of normative flesh from which any yardstick could be inferred for the regulation of the exploitation of natural resources.Footnote 80 It is true that the UN General Assembly, in its Resolution 47/37 of 25 November 1992 on the ‘Protection of the Environment in Times of Armed Conflict’, emphasized that “destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law”, and urged “States to take all measures to ensure compliance with the existing international law applicable to the protection of the environment in times of armed conflict” and “to take steps to incorporate the provisions of international law applicable to the protection of the environment into their military manuals and to ensure that they are effectively disseminated”.Footnote 81 Yet the non-binding character of the instrument, as well as the absence of any meaningful signposts as to which kinds of exploitation of natural resources ought to be admissible, have considerably eroded the relevance of that instrument when it comes to natural resources exploitation in times of conflict. This is why environmental law has been construed as at most an interpretative yardstick for the application of those rules of international law that are specifically aimed at situations of conflict.Footnote 82 Indeed, although it failed to indicate clearly whether it was referring to the ius ad bellum or the ius in bello, the ICJ elevated respect for environmental law into one of the measurement yardsticks of the proportionality and necessity requirement:

The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defense under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.Footnote 83

While this famous pronouncement by the ICJ confirms the relevance of the rules of environmental law in times of conflict, it falls short of allowing these rules to be of any use for the regulation of the exploitation of natural resources in situations of occupation.

The foregoing shows that environmental law is of very little use when it comes to elaborating a framework for the exploitation of natural resources in times of conflict. The only rules protective of the environment that could also be conducive to a better regulation of the exploitation of natural resources are those found in international humanitarian law itself; especially paragraph 3 of Article 35Footnote 84 and Article 55Footnote 85 of Additional Protocol I. However, these provisions have been deemed too strict to provide effective standards of conduct or to have any practical authority in times of conflict.Footnote 86 Moreover, being more specifically geared towards the methods of combat, they fail, like the general rules of environmental law, to formulate any useful standard of conduct that could define the types of exploitation of natural resources that are permissible.

The potential use of environmental law for the regulation of natural resources exploitation in times of conflict is thus extremely limited. This is why this alternative route to Article 55 of the Hague Regulations has often been deemed an argumentative dead end and has found a very limited place in scholarly attempts to constrain the exploitation of natural resources in situations of occupation.

6. Due diligence

A last interpretative construction that has been used to define what is admissible in terms of natural resources exploitation in times of conflict is an obligation of due diligence from states. This interpretative move has been exclusively geared towards problems of exploitation by non-state entities, which could not be addressed by the traditional rules discussed in the previous paragraphs, and certainly not under Article 55 of the Hague Regulations, which only deals with exploitation by states. More incidentally—and without necessarily being a claim that this constitutes lex lata—the concept of due diligence has sometimes also been invoked as an obligation of non-state actors like importers, processing industries, and consumers who are involved in the business of natural resources.Footnote 87 The following paragraphs are concerned only with the invocation by scholars and experts of an obligation of due diligence by states in situations of natural resources exploitations and do not address the idea of due diligence obligations of other actors.

As is well known, in mainstream international law, the principle of due diligence has been externalized and outsourced to primary norms.Footnote 88 Indeed, due diligence in international law, while often constituting a standard for assessing the wrongfulness of the conduct in a domestic responsibility system,Footnote 89 has been demoted to a primary rule of conduct. Now, only the non-conformity of a conduct is the yardstick for determining responsibility under international law.Footnote 90 Such a conceptual construction was meant to objectivize responsibilityFootnote 91 and enhance its operability. Albeit designed as a primary norm of conduct, the principle of due diligence has remained extremely vague. Its judicial recognition in the Corfu Channel case has done very little to give it a more determinate content.Footnote 92 It is precisely the indeterminacy of that rule that has made it an obvious candidate for the further development of international law, including in the area of natural resources exploitation by non-state actors.

It is, again, the counsels of the Democratic Republic of Congo who have sought to expand the principle of non-diligence in a way that entails an obligation by the occupying power to prevent or control the exploitation of natural resources by non-state entities. Indeed, in the 2002 Memorial that it submitted in the case of the Armed Activities, the DRC alleged that the freedom given by Uganda for non-state entities to exploit—and plunder—the natural resources on the territory of the Congo amounted to a violation of the principle of due diligence.Footnote 93 It was said that such an obligation corresponds to entreaties made by the Security Council.Footnote 94 As is well known, the argument proved successful as the ICJ, in its decision, contended that Uganda was under the obligation—which the Court refers to as an obligation of due vigilance—“to take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory to cover private persons in this district and not only members of the Ugandan military forces”.Footnote 95

Although endowed with the authority that is inherent in such an adjudicative endorsement, the use of the state obligation of due diligence to regulate the exploitation of natural resources has remained restricted to situations where such exploitation is the act of a non-state entity. This is why its argumentative value has remained limited within the scholarly quest for a regulation of the exploitation of natural resources in times of conflict, as such exploitation is most often ascribed to state entities.

II. Professional dynamics and the “just world” business

The foregoing, rather cursory, sketch of the various forms of argumentative engineering that are geared towards a greater regulation of the exploitation of natural resources in times of conflict denotes some of the traditional structural dynamics of the community of experts on armed conflict. It is the aim of the following paragraphs to shed light on some of these recurrent epistemic biases of this branch of the profession, especially in connection with the regulation of the exploitation of natural resources in times of conflict.

A. The “Just World” Business of International Legal Scholarship

It is argued here that the overwhelming majority of experts on the law of armed conflict—taken in the broad sense to include the law of armed conflict stricto sensu, humanitarian law, and human rights applicable in armed conflicts—all manifest an abiding call for the making of a “just world” within the chaos of war. Differently put, restoring justice amidst the lawless turmoil of conflict has become their core business. It is true that there have been a few rebellious interpretative communities.Footnote 96 Subject to these few isolated exceptions, it is as if the unwritten charter of the profession—to which anyone dealing with this subject matter ought to adhere—prescribes a duty to promote a better world. Even the agenda of those primarily seeking the restoration of peace—and the brigandage discussed in this article has been seen as fuelling wars—has not remained alien to the idea of justice. It goes without saying that the drive for commutative justice found in this profession is certainly not new. There has always been a significant cluster of professionals leaning towards the realization of natural law. Yet, among those that are claiming to be the experts and guardians of the interpretation of law of armed conflict, commutative justice constitutes the central agenda.

The “just world” business of the professionals of armed conflict has rested on a very simple business case: a programmatic use of existing concepts aimed entirely at the unwritten charter of the profession. It is not that, contrary to other branches of the profession, they have been spearheading entirely futuristic and unheard-of rules.Footnote 97 It is rather that stretching and embellishing the actual rules enshrined in conventional law has been their sole assignment. Their core business has thus made them craftspeople.

The realization of this “just world” business has been made possible by the use of several mechanisms. The most convenient one—to which this article has already alluded—has been customary international law.Footnote 98 Indeed, customary international law has always proved a very popular technique because of the argumentative comfort zone it can generate, especially by virtue of the pedigree which it can endow norms with.Footnote 99 If not found in a treaty, a rule can be deducted from customary law, which constitutes the best fall-back option in terms of law-ascertainment. In that sense, customary international law has allowed the construction of new rules with a perceived belief that they were already all there. A good illustration is provided by how scholars came to design a whole body of rules applicable to armed conflicts of a non-international character beyond the minimalistic framework provided by Additional Protocol I.Footnote 100

The second marketing strategy used by these “just world” businessmen has been the resort to creative argumentative engineering within the existing conventional framework. It entails the use of interpretation—that is argumentative engineering—to expand the current rules applicable to armed conflict.Footnote 101 It is on the use of this second technique that this brief article has zeroed in. Indeed, as was explained above,Footnote 102 when it comes to the development of a regulatory regime for the exploitation of natural resources in times of conflict, the traditional room of interpretative manoeuvre provided by customary international lawFootnote 103 did not constitute the interpretative tool of convenience of scholars and experts despite the fact that their creativeness was frustrated by the textual restrictions of conventional IHL.Footnote 104 The remaining paragraphs of this brief article intend to evaluate whether the actual argumentative techniques described above usually serve the drive for a fair regulation of the exploitation of natural resources in times of occupation.

B. The International Law of Brigandage and the Battle for Interpretation

Human societies have always fought brigandage and have enacted the necessary social norms to ensure retribution for such behaviour, usually in the form of criminal norms. International society seems, however, to have faltered in this quest, as it has failed to give itself the adequate structure to thwart and deter brigandage in times of conflict. Surely, this finding should not be taken as implying that international society is rudimentary and primitive. It certainly is not. The origin of that deficiency is not societal underdevelopment. The deficient regulatory framework for the exploitation of natural resources in times of conflict can be traced back to the fact that the law on belligerent occupation elaborated in 1907, despite being supplemented in 1949 and 1977, never addressed exploitation of non-renewable natural resources. Nor did it envisage prolonged occupation, and thus the prolonged exploitation of natural resources.

Such a normative deficiency is everything but atypical. It is an inherent feature of norms to constantly fall short of comprehensively addressing the phenomenon it seeks to regulate. In all social orders, norms are in constant need of readjustment. In the absence of super (pro-)active norm-makers, the adjustment of norms will be left to interpreters. In that sense, the creativity of scholars and experts described above can be construed as a very natural phenomenon in a social order with a fickle legislator. It is true that, in sharp contrast to the domestic legal order or religious orders, the international legal order falls short of empowering a guardian of interpretation with a monopoly on the authoritative reading of the norms of that order. The absence of an authority empowered with a monopoly on the interpretation of the norms of the international legal order explains why none of the forms of interpretative engineering described above has been able to prevail over the others. As a result, the debate about the regulation of natural resources has been another expression of the abiding battle for interpretation raging among the multiple self-empowered interpreters of international law and the interpretative communities in which they cluster.Footnote 105 But, again, this is far from being unprecedented. Such an interpretative warfare is inherent in any social order that fails to vest the interpretation of norms in one single authority. The scholarship of such social orders is inevitably condemned to be the “shared surface”Footnote 106 on which interpreters fight each other.

If one concurs with such an epistemological view of the profession,Footnote 107 scholarship is all about sufficiently empowering our words so that they resonate louder than the words of others, intimidate others, and rally enough fellow interpreters. This is what all the scholars and experts engaged in the interpretative engineering for a better regulation of natural resources exploitation have been striving to do. Yet it is surely no part of this final section to evaluate the argumentative persuasiveness of each of their multiple interpretative constructions. Indeed, even if one of them were to receive the backing of one of the most influential interpreters of the system, like the ICJ, this would not necessarily completely clinch the debate. Nor is it the aim of these concluding remarks to gauge the price of each of the argumentative constructions mentioned above. It is true that many of them end up making international rules pertaining to the protection of individuals—especially international humanitarian law—into something of unparalleled complexity,Footnote 108 thereby gravely debilitating their normativeness, authority, and eventually practical impact among its addressees. Somehow, this is an inevitability of the abiding battle of interpretation and it would be of no avail to dwell on this phenomenon here. It seems more relevant to conclude this brief critical overview with a few words on the epistemic strategies of scholars confronted with the debate on the regulation of natural resources in time of conflict.

It is argued here that scholars and experts, once they have acknowledged the textual restrictiveness of the regulatory regime of natural resources exploitation and the correlative battle for interpretation, can react in two different manners.

First, there are the cynics. They are those that cynically believe that no one will ever win the battle of interpretation and that we ought to come to terms with the deficiency of the Hague Regulations and the Geneva Convention. Among those cynics, two groups can be distinguished. On the one hand, there are the mild cynics with a leaning towards idealism who believe that the only thing to hope for is the resurrection of the 1907 Peace Conference legislator, maybe under the guise of an active UN Security Council driven by fairness. On the other hand, there are the radical cynics who, not believing in resurrection or lofty activism by the UN Security Council, will simply acknowledge the limits of the regulatory role which international law can play in situations of conflict. To them, only the—unlikely—emergence of a “Robin Hood” of contemporary conflict could contribute to one day fairly distributing resources and the yields of their exploitation. Besides the cynics, there are the activists; those who believe in the worthiness of fighting for interpretation. That is those who believe that one interpretation can prevail—for instance because it is espoused by an authoritative body like the ICJ—and that regulating the exploitation of natural resources in times of conflict can be achieved by virtue of argumentative engineering. This is the obvious posture taken by the scholars who have been discussed in the first part of this article.

It is certainly not my ambition here to promote any of these two scholarly postures in the general debate over natural resources regulation. What matters here is only to advocate that each of them be consciously and critically assumed. It is true that cynicism is traditionally a self-assumed position. A self-critical activism is less frequent in international legal scholarship. But it is not inconceivable. Indeed, awareness that legal scholarship is one of the battlegrounds for the interpretation of international law does not preclude one from picking up the argumentative fight to defend his or her agenda, whether for justice, peace, or just pure self-recognition. When consciously assumed, such scholarly activism is surely not to be bemoaned. Whether activism can realistically and factually contribute to a stricter regulatory framework of natural resources exploitation in times of conflict is, however, a question for another debate. The critical presentation made here of the various forms of interpretative engineering geared towards a better regulatory framework of natural resources exploitation under international law only shows that this battle for interpretation among the various interpretative communities of international legal scholarship is bound to proceed in perpetuum.

Footnotes

*

Associate Professor of International Law, Amsterdam Centre for International Law, University of Amsterdam. The Chair of Public International Law at the University of Manchester will be assumed from 1 January 2013.

1. Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907 (entered into force 26 January 1910), online: UNHCR <http://www.unhcr.org/refworld/docid/4374cae64.html> [Hague Regulations].

2. See particularly Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 (entered into force 21 October 1950) [Geneva Convention].

3. DINSTEIN, Yoram, The Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009)

Iain SCOBBIE, “Natural Resources and Belligerent Occupation—Perspectives from Humanitarian and Human Rights Law” in Susan M. AKRAM, Michael DUMPER, Michael LYNK, and Iain SCOBBIE, eds., International Law and the Israeli-Palestinian Conflict: A Rights-Based Approach to Middle East Peace (Oxford: Routledge, 2011)

CLAGETT, Brice M. and JOHNSON, O. Thomas, “May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez?” (1978) 72 American Journal of International Law 558

DUFRESNE, Robert, “Reflections and Extrapolation on the ICJ's Approach to Illegal Resource Exploitation in the Armed Activities Case” (2008) 40 NYU Journal of International Law and Politics 171

GERSON, Allan, “Off-Shore Oil Exploitation by a Belligerent Occupant: The Gulf of Suez Dispute” (1977) 71 American Journal of International Law 725

VITÉ, Sylvain, “The Interrelation of the Law of Occupation and Economic, Social and Cultural Rights” (2008) 90 International Review of the Red Cross 629

LANGENKAMP, R. Dobie and ZEDALIS, Rex J., “What Happens to the Iraqi Oil? Thoughts on Some Significant, Unexamined International Questions Regarding Occupation of Oil Fields” (2003) 14 European Journal of International Law 417

OKOWA, Phoebe N., “Natural Resources in Situations of Armed Conflicts: Is There a Coherent Framework of Protection?” (2007) 9 International Community Law Review 237

ABOUALI, Gamal, “Natural Resources Under Occupation: The Status of Palestinian Water Under International Law” (1998) 10 Pace International Law Review 411

Nicolaas J. SCHRIJVER, “Permanent Sovereignty over Natural Resources” in Rüdiger WOLFRUM, ed., Max Planck Encyclopaedia of Public International Law (Oxford: Oxford University Press, 2010)

EL-HINDI, Jamal L., “The West-Bank Aquifer and Conventions Regarding Laws of Belligerent Occupation” (1990) 11 Michigan Journal of International Law 1400

4. Karen BALLENTINE and Jake SHERMAN, eds., The Political Economy of Armed Conflict: Beyond Greed and Grievance (Boulder, CO: Lynne Rienner Publishers, 2003)

Michael L. ROSS, “The Natural Resource Curse: How Wealth Can Make You Poor” in Ian BANNON and Paul COLLIER, eds., Natural Resources and Violent Conflict: Options and Actions (New York: World Bank, 2003)

SCHRIJVER, Nicolaas J., Development Without Destruction: The UN and Global Resource Management (Bloomington, IN: Indiana University Press, 2010) at 158

GERSON, Allan, “Off-Shore Oil Exploitation by a Belligerent Occupant: The Gulf of Suez Dispute” (1977) 71 American Journal of International Law 725 at 731

5. BENVENISTI, Eyal, The International Law of Occupation (Princeton, NJ: Princeton University Press, 1993) at 5−6

6. Hague Regulations, supra note 1, art. 46: “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”

7. Geneva Convention, supra note 2, art. 147:

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

8. Hague Regulations, supra note 1, art. 47: “Pillage is formally forbidden”. See also Geneva Convention, supra note 2, art. 33:

Jean-Marie HENCKAERTS and Louis DOSWALD-BECK, eds., Customary International Humanitarian Law, Vol. 1: Rules (New York/Cambridge: Cambridge University Press, 2005)

9. Dinstein, supra note 3 at 217

Clagett and Johnson, supra note 3 at 562

10. Clagett and Johnson, supra note 3 at 562

CASSESE, Antonio, “Powers and Duties of an Occupant in Relation to Land and Natural Resources” in Emma PLAYFAIR, ed., International Law and the Administration of Occupied Territories (Oxford: Clarendon Press, 1992) at 421−429

Langenkamp and Zedalis, supra note 3 at 420

Abouali, supra note 3 at 472

WOLFRUM, Rüdiger, “Iraq—From Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference” (2005) 9 Max Planck United Nations Yearbook 1 at 24

11. Although dealing with privately owned oil deposits, the leading case that is said to provide authority to that position is N.V. de Bataafsche Petroleum Maatschappij v. The War Damage Commission [1956] S.L.R. 65 decided by the Court of Appeal in the then British colony of Singapore.

12. Hague Regulations, supra note 1, art. 55:

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

13. Clagett and Johnson, supra note 3 at 567

14. Dinstein, supra note 3 at 215

15. Langenkamp and Zedalis, supra note 3

16. Administration of Waters and Forests v. Falck (1927−1928) 4 Annual Digest and Reports of International Law Cases 563 (deciding that the cutting of state-owned trees under German occupation at a rate “well in excess of the permitted rate of harvest set forth in the French Forest Code” violated the rules of usufruct prescribed by Article 55).

17. Clagett and Johnson, supra note 3 at 574−575

18. Dinstein, supra note 3 at 216

GERSON, Allan, “Off-Shore Oil Exploitation by a Belligerent Occupant: The Gulf of Suez Dispute” (1977) 71 American Journal of International Law 725 at 732

19. Langenkamp and Zedalis, supra note 3 at 433

20. Trial of Major War Criminals Before the International Military Tribunal, 239, 6 F.R.D. 69, 120 (1947).

21. Trial of Alfried Felix Alwyn Krupp Von Bohlen und Halbach and Eleven Others (1949) 10 Law Reports of the Trials of War Criminals 69 at 135−8 [Re Krupp and Others].

22. Clagett and Johnson, supra note 3 at 582

Vité, supra note 3 at 648

Langenkamp and Zedalis, supra note 3 at 430

23. ZACKLIN, Ralph, “The Problem of Namibia in International Law” (1981) 171 Collected Courses 225 at 318−319

Dufresne, supra note 3 at 203−205

24. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] I.C.J. Rep.168 [Armed Activities].

25. Indeed, the Court did not clarify the extent and meaning of lawful exploitation of natural resources, especially of that carried out for the benefit of the local population. The Court only mentioned that “Uganda's argument that any exploitation of natural resources in the DRC was carried out for the benefit of the local population, as permitted under humanitarian law, is not supported by any reliable evidence”. Armed Activities, ibid., para. 249. On this point, see Dufresne, supra note 3 at 197.

26. SC Res. 1483, UN Doc. S/RES/1483 (2003).

27. See further discussion in Part I(B), infra.

28. BENVENISTI, Eyal, “Water Conflicts During the Occupation of Iraq” (2003) 97 American Journal of International Law 860 at 869

Wolfrum, supra note 10 at 24

29. Charter of the United Nations, 26 June 1945, 1 U.N.T.S. XVI (entered into force 24 October 1945) [UN Charter].

30. See Part I(B), infra.

31. D'ASPREMONT, Jean, Formalism and the Sources of International Law (Oxford: Oxford University Press, 2011) at 161−184

32. See Part II(A), infra.

33. Schrijver, supra note 3 at paras. 20−22

34. Scobbie, supra note 3

Abouali, supra note 3 at 495−536

35. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at para. 111.

36. MILANOVIC, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (New York: Oxford University Press, 2011)

37. Armed Activities, supra note 24 at para. 178.

38. Vité, supra note 3 at 646

39. D'ASPREMONT, Jean, “Softness in International Law” (2008) 19 European Journal of International Law 1075

40. STEWARD, James G., Corporate War Crimes—Prosecuting the Pillage of Natural Resources (New York: Open Society Foundations, 2010)

EZEKIEL, Aaron, “The Application of International Criminal Law to Resources Exploitation: Ituri, Democratic Republic of the Congo” (2007) 47 Natural Resources Journal 225

LUNDBERG, Michael A., “The Plunder of Natural Resources During War: A War Crime” (2008) 39 Georgetown Journal of International Law 495

41. Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (entered into force 1 July 2002) [ICC Statute].

42. Ibid., art. 8(2)(a)(iv).

43. Ibid., art. 8(2)(b)(xiii) and (c)(xii).

44. Ibid., art. 8(2)(b)(xvi) and (e)(v).

45. Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, UN Doc. S/RES/955 (1994), art. 4(f):

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to … pillage.

46. Statute of the Special Court for Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 (entered into force 12 April 2002) [SCSL], art. 3(f):

The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include … pillage.

47. On that requirement, see generally Prosecutor v. Dragoljub Kunurac et al., Appeal Judgment of 12 June 2002, Case No. IT-96-23-A, paras. 57−9.

48. Larissa VAN DEN HERIK and Daniëlla DAM-DE JONG, “Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation During Armed Conflict” (2011) 22 Criminal Law Forum 237

49. See especially Re Krupp and Others, supra note 21.

50. Prosecutor v. Delalic et al., Trial Judgment of 16 November 1998, ICTY Case No. IT-96-21-IT, para. 584.

51. See e.g. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Pre-Trial Chamber I, 30 September 2008, paras. 1−3.

52. Van den Herik and Dam-De Jong, supra note 48 at 30−33

53. Permanent Sovereignty over Natural Resources, GA Res. 1803 (XVII), UN Doc. A/RES/17/180 (1962), paras. 1–2.

54. See e.g. Preamble of GA Res. 62/181, UN Doc. A/RES/62/181 (2007) reaffirming the principle of permanent sovereignty of peoples under foreign occupation over their natural resources. See also SC Res. 1483, UN Doc. S/RES/1483 (2003), which stresses “the right of the Iraqi people freely to … control their own natural resources”.

55. SCHRIJVER, Nicolaas J., Sovereignty over Natural Resources—Balancing Rights and Duties (New York: Cambridge University Press, 1997)

56. See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reply by DRC, Volume I, May 2002, paras. 4.64−4.70

57. See Armed Activities, supra note 24 at para. 244: “The Court finds that it cannot uphold the contention of the DRC that Uganda violated the principle of the DRC's sovereignty over its natural resources (also see para. 226). The Court recalls that the principle of permanent sovereignty over natural resources is expressed in General Assembly resolution 1803 (XVII) of 14 December 1962 and further elaborated in the Declaration on the Establishment of a New International Economic Order (General Assembly resolution 3201 (S.VI) of 1 May 1974) and the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (XXIX) of 12 December 1974). While recognizing the importance of this principle, which is a principle of customary international law, the Court notes that there is nothing in these General Assembly resolutions which suggest that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the DRC's third submission. The Court does not believe that this principle is applicable to this type of situation.”

58. Case Concerning East Timor (Portugal v. Australia), [1995] I.C.J. Rep. 90 at para. 29.

59. See para. 244 reproduced in supra note 57.

60. OKOWA, Phoebe. N., “Natural Resources in Situations of Armed Conflicts: Is There a Coherent Framework of Protection?” (2007) 9 International Community Law Review 237 at 246 and 251–256

61. D'ASPREMONT, Jean, “Les dispositions non normatives des actes juridiques conventionnels à la lumière de la jurisprudence de la Cour internationale de Justice” (2003) Belgian Review of International Law at 496−520

BOYLE, Alan and CHINKIN, Christine, The Making of International Law (New York: Oxford University Press, 2007) at 221

62. Asylum Case (Columbia/Peru), [1950] I.C.J. Rep. 266 at para. 277.

63. Okowa, supra note 60 at 246 and 251−256

64. Armed Activities, supra note 24, Declaration by Judge Koroma, para. 11.

65. Okowa, supra note 60

66. SC Res. 1625, UN Doc. S/RES/1625 (2005) at para. 6.

67. SC Res. 864, UN Doc. S/RES/864 (1993) at para. 20.

68. SC Res. 1306, UN Doc. S/RES/1306 (2000), para. 1: “Decides that all States shall take the necessary measures to prohibit the direct or indirect import of all rough diamonds from Sierra Leone to their territory.”

69. SC Res. 1343, UN Doc. S/RES/1343 (2001), para. 6: “Decides further that all States shall take the necessary measures to prevent the direct or indirect import of all rough diamonds from Liberia, whether or not such diamonds originated in Liberia.”

70. SC Res. 864, UN Doc. S/RES/864 (1993), para. 19:

Decides, with a view to prohibiting all sale or supply to UNITA of arms and related matériel and military assistance, as well as petroleum and petroleum products, that all States shall prevent the sale or supply, by their nationals or from their territories or using their flag vessels or aircraft, of arms and related matériel of all types, including weapons and ammunition, military vehicles and equipment and spare parts for the afore-mentioned, as well as of petroleum and petroleum products, whether or not originating in their territory, to the territory of Angola other than through named points of entry on a list to be supplied by the Government of Angola to the Secretary-General, who shall promptly notify the Member States of the United Nations.

71. SC Res. 1483, UN Doc. S/RES/1483 (2003) at para. 20.

72. Ibid., para. 21.

73. Benvenisti, supra note 28 at 864

74. Ibid., at 869. For Rüdiger Wolfrum, Resolution 1483 is entirely in line with Article 55 of the Hague Regulations. See supra note 10 at 24.

75. Jean D'ASPREMONT and Jérome de HEMPTINNE, Droit international humanitaire (Paris: Pedone, 2012)

SASSÒLI, Marco, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers” (2005) 16 European Journal of International Law 661

76. Cf. supra Part I.

77. See art. 7 and the annex of the Draft Articles on the Effects of Armed Conflicts on Treaties adopted by the International Law Commission at its Sixty-third Session in 2011, and submitted to the General Assembly as part of the Commission's report covering the work of that session, UN Doc. A/66/10 (2011), para. 100. The report is in Yearbook of the International Law Commission, 2011, Vol. II, Part II, online: <http://www.untreaty.un.org/ilc>.

78. See e.g. Principle 24 of the Declaration of the 1992 United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (1992). Although it does not constitute a binding legal instrument, it is noteworthy that the 1972 Stockholm Declaration mentions the use of nuclear weapons (Principle 26).

79. Okowa, supra note 60, 247−251

80. D'ASPREMONT, Jean, “Softness in International Law: A Self-Serving Quest for New Legal Materials” (2008) 19 European Journal of International Law 1075

81. GA Res. 47/37, UN Doc. A/RES/47/37 (1992).

82. Jean D'ASPREMONT, “The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order” in André NOLLKAEMPER and Ole Kristian FAUCHALD, eds., Unity or Fragmentation of International Law: The Role of International and National Tribunals (Oxford: Hart, 2012)

83. Edith BROWN-WEISS, “Opening the Door to the Environment and to Future Generations” in Laurence Boisson DE CHAZOURNES and Philippe SANDS, eds., The International Court of Justice and Nuclear Weapons (New York: Cambridge, 1999)

84. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3 [Protocol I], art. 35: “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”

85. Ibid., art. 55:

1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

2. Attacks against the natural environment by way of reprisals are prohibited.

86. Okowa, supra note 60 at 250−251

87. See SC Res. 1952, UN Doc. S/RES/1952 (2010), para. 7 where the Security Council “supports taking forward the Group of Experts’ recommendations on guidelines for due diligence for importers, processing industries and consumers of Congolese mineral products, as set out in paragraphs 356 to 369 in part IX of the final report (S/2010/596), to mitigate the risk of further exacerbating the conflict in the eastern part of the Democratic Republic of the Congo by providing direct or indirect support to: (1) illegal armed groups, in the eastern part of the Democratic Republic of the Congo, (2) those found to violate the asset freeze and travel ban on sanctioned individuals and entities, as renewed by paragraph 3 above, and (3) criminal networks and perpetrators of serious violations of international humanitarian law and human rights abuses, including those within the national armed forces.” See also para. 8 where the Council “calls upon all States to take appropriate steps to raise awareness of the due diligence guidelines referred to above, and to urge importers, processing industries and consumers of Congolese mineral products to exercise due diligence by applying the aforementioned guidelines, or equivalent guidelines, containing the following steps as described in the final report (S/2010/596): strengthening company management systems, identifying and assessing supply chain risks, designing and implementing strategies to respond to identified risks, conducting independent audits, and publicly disclosing supply chain due diligence and findings.”

88. OUEDRAOGO, Aawalou, “La neutralité et l'émergence du concept de due diligence en droit international: l'affaire de l'Alabama revisitée” (2011) 13 Journal of the History of International Law, 307

BARNIDGE, Robert Perry, “The Due Diligence Principle Under International Law” (2006) 8 International Community Law Review 81

HESSBRUEGGE, Jan Arno, “The Historical Development of the Doctrines of Attribution and Due Diligence in International Law” (2004) 36 New York University Journal of International Law and Politics 265

PISILLO-MAZZZESCHI, Ricardo, “The Due Diligence Rule and the Nature of International Responsibility of State” (1992) German Yearbook of International Law 22

AGO, Roberto, “4th Report on State Responsibility” (1972) 2 Yearbook of the International Law Commission 103

89. Corfu Channel Case (U.K. v. Albania), [1949] I.C.J. Rep. 4 at 20−3 [Corfu Channel Case].

90. ANZILOTTI, Dionisio, Teoria generale della responsabilità dello Stato nel dritto internazionale (Florence: F. Lumachi Libraro-Editore, 1902) at 89

91. WEIL, Prosper, “Le Droit International en Quête de Son Identité” (1992) 237 Collected Courses of the Academy of International Law in The Hague at 334

92. Corfu Channel Case, supra note 89. See also ITLOS, Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion No. 17, 1 February 2011, para. 131.

93. Supra note 56, paras. 4.71−4.81.

94. Statement of the President of the Security Council of 19 December 2001, S/PRST/2001/39, Annexe RRDC 71, online: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N01/707/39/PDF/N0170739.pdf?OpenElement>:

The Security Council stresses that: No external parties, or groups or individuals under their control, should benefit from the exploitation of the DRC's natural resources at the DRC's expense; The DRC's natural resources should not serve as an incentive for any State, group or individual, to prolong, the conflict; External parties, and groups or individuals under their control, must not use the natural resources of the DRC to finance the conflict in the country; The resources should be exploited legally and on a fair commercial basis to benefit the country and people of the DRC.

95. Armed Activities, supra note 24, para. 248: “The Court further observes that the fact that Uganda was the occupying Power in Ituri district … extends Uganda's obligation to take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory to cover private persons in this district and not only members of Ugandan military forces. It is apparent from various findings of the Porter Commission that rather than preventing the illegal traffic in natural resources, including diamonds, high-ranking members of the UPDF facilitated such activities by commercial entities. In this regard, the Report of the Commission mentions a company referred to as ‘Victoria’ (see paragraph 240 above), which operated, inter alia, in Bunia. In particular the Report indicates that ‘General Kazini gave specific instructions to UPDF Commanders in Isiro, Bunia, Beni, Bumba, Bondo and Buta to allow the Company to do business uninterrupted in the areas under their command’.”

96. JOCHNICK, Chris and NORMAND, Roger, “The Legitimation of Violence: A Critical History of the Laws of War” (1994) Harvard International Law Journal 49

97. BLUTMAN, László, “In the Trap of a Legal Metaphor: International Soft Law” (2010) 59 International and Comparative Law Quarterly 605 at 617−618

REISMAN, Michael, “Soft Law and Law Jobs” (2011) 2 Journal of International Dispute Settlement 25 at 25−26

D'ASPREMONT, Jean, “The Politics of Deformalization in International Law” (2011) 3 Goettingen Journal of International Law 503

98. Customary international law is only the manifestation of the more general manifestation of the deformalization of the ascertainment international law for expansive purposes. On this point, see D'Aspremont, supra note 31 at 151.

99. Jean D'ASPREMONT, “International Customary Investment Law: Story of a Paradox” in Eric De BRABANDERE and Tarcisio GAZZINI, eds., International Investment Law: The Sources of Rights and Obligations (The Netherlands: Martinus Nijhoff, 2012)

100. Jean-Marie HENCKAERTS and Louis DOSWALD-BECK, eds., Customary International Humanitarian Law, Vol. 1: Rules (Geneva/Cambridge: Cambridge University Press, 2005)

BELLINGER, John B. and HAYNES, William J., “A U.S. Government Response to the International Committee of the Red Cross's Customary International Humanitarian Law Study” (2007) 46 International Legal Materials 514

101. LIXINSKI, Lucas, “Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law” (2010) 21 European Journal of International Law 3

102. Cf. supra Part I(A).

103. For a critical reappraisal of the theory of customary international law, see D'Aspremont, supra note 31, 164.

104. Regarding armed conflicts of a non-international character, see supra note 88.

105. FISH, Stanley Eugene, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, MA: Harvard University Press, 1980)

106. Martti KOSKENNIEMI, “What is International Law For?” in Malcolm D. EVANS, International Law, 2nd ed. (Oxford: Oxford University Press, 2006) at 77

107. BIANCHI, Andrea, “The International Regulation of the Use of Force: The Politics of Interpretive Method” (2009) 22 Leiden Journal of International Law at 651

108. I have tried to confront that complexity elsewhere. See D'Aspremont and Hemptinne, supra note 75.

* Associate Professor of International Law, Amsterdam Centre for International Law, University of Amsterdam. The Chair of Public International Law at the University of Manchester will be assumed from 1 January 2013.