Occupation

Volume 94 Number 885 Spring 2012Preoccupied withoccupation: criticalexaminations ofthe historicaldevelopment of thelaw of occupationYutaka Arai-Takahashi*Yutaka Arai-Takahashi, LLM (Keio), is Reader in InternationalLaw and International Human Rights Law, University of Kent atBrussels and Kent Law School.AbstractThis article examines the historical evolution of the law of occupation from twoangles. First, it analyses scholarly discourse and practice with respect to the generalprohibition on the Occupying Power making changes to the laws and administrativestructure of the occupied country, as embodied in Article 43 of the 1907 HagueRegulations. Many Occupying Powers and scholars have endeavoured to rationalizeexceptions to this ‘general principle’ governing the entire corpus of the law ofoccupation. Their studies support the contingent nature of the law of occupation, withits interpretation being dependent on different historical settings and social context.The second part of the article focuses on how the law of occupation that evolved as aEuropean project has rationalized excluding the system of colonialism from theframework of that law. The historical assessment of this body of jus in bello would beincomplete and biased if it did not address the narratives of such structuralexclusivity.* The author wishes to express a sincere sense of thankfulness to Eyal Benvenisti, Michael Siegrist, andanonymous reviewers for their very helpful comments on the earlier draft of this article.doi:10.1017/S1816383112000495 51