Occupation

G. H. Fox – Transformative occupation and the unilateralist impulseparticular strategy of particular states, rather than a global phenomenon’. 30 In short,transformative occupation is very much the exception in a set of cases dominated byoccupations that fit the traditional model comprehensively regulated by Hague andGeneva law.Instead of examining the entire class of recent occupations, many authorsfocus only on the immediate post-World War II cases and two more recent highprofilecases: Israel in the Palestinian territories and the United States in Iraq. 31 Sucha limited sample obviously cannot support the proposition that parties to the Hagueand Geneva instruments have rejected the conservationist principle. 32 Even so, doesthis small subset of cases represent a unified legal phenomenon?Germany, Austria, and JapanThough following very different paths, the occupations of Germany, Japan, andAustria obviously involved liberal democratic transformations. But three factorscounsel hesitation in marshalling these cases to argue for the conservationistprinciple’s demise. First, whereas the three western allies used their post-WorldWar II occupations to bring democratic change, the Soviet Union did not. Indeed, ifone looks beyond Soviet actions in its East German zone of occupation to its actionselsewhere in eastern Europe, post-World War II practice appears anything butuniformly liberal and democratic. 33 In this sense, the status of occupiers’ legislativepowers seems to share the stagnant quality that marked so much of internationalpractice in peace and security law during the Cold War.Second, even assuming the Western occupations launched a challenge tothe conservationist principle, that challenge was not taken up when the internationalcommunity codified occupation law in the light of post-World War II practice. Thisoccurred twice. First, during drafting of the Fourth Geneva Convention of 1949,the United States proposed language that would have effectively validated its actionsin Germany and Japan and given occupiers virtually unlimited legislative30 Ibid., p. 1153.31 See, e.g., A. Roberts, above note 16, pp. 601–603 (discussion of ‘Post-1945 occupations with atransformative purpose’ skips from discussion of post-World War II occupations to ‘International militaryactions since the end of the Cold War’); N. F. Lancaster, above note 24, p. 70 (in section on ‘Occupationssince 1949’, discussing Israeli occupation as the only non-UN sanctioned case).32 Subsequent practice of treaty parties is an accepted source of treaty interpretation. See Article 31(3)(b) ofthe 1969 Vienna Convention on the Law of Treaties. But that practice must be ‘consistent rather thanhaphazard and it should have occurred with a certain frequency’. Further, as Article 31(3)(b) itselfprovides, the practice must ‘establish the agreement of the parties regarding its interpretation’. Mark E.Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers,Leiden and Boston, 2009, p. 431. Given the reception of the Iraqi and Palestinian occupations by the rest ofthe international community, such agreement seems absent.33 While the only other immediate post-World War II Soviet action meeting the definition of occupationoccurred in northern Iran, Soviet influence in what became the Warsaw Pact countries soon broughtabout the demise of liberal democratic institutions. See generally, Tony Judt, Postwar: A History of Europesince 1945, Penguin Books, Hammersmith, 2006, pp. 165–196. Later Soviet occupations of Hungary(1956) and Czechoslovakia (1968) graphically illustrate the type of reforms that its occupationsoccasioned.246