The Legality of Economic Activities in Occupied Territories: International, EU Law and Business and Human Rights Perspectives

271 Pages·2020·5.375 MB·English

by  Antoine Duval and Eva Kassoti

The Legality of Economic
Activities in Occupied Territories
This edited volume explores the question of the lawfulness under international
law of economic activities in occupied territories from the perspectives of inter-
national law, EU law, and business and human rights.
Providing a multi-level overview of relevant practices, policies and cases, the
book is divided into three parts, each dealing with how different legal fields have
come to grips with the challenges brought about by the question of the lawful-
ness under international law of economic activities in occupied territories. The
first part includes contributions pertaining to the international law dimension
of the question. It contains chapters on the conjunction between jus in bello,
jus ad bellum and international human rights law in the context of exploitation
of natural resources in territories under belligerent occupation; on third party
obligations flowing from the application of occupation law in relation to natural
resources exploitation; and on State practice with regard to trading with occu-
pied territories. The second part focuses on EU law and contains contributions
that assess the EU’s approach to occupied territories and the extent to which this
approach comports with the EU’s obligations under international law; contribu-
tions providing an in-depth assessment of the case-law of the CJEU on occupied
territories; as well as contributions pertaining to the political considerations that
may influence the legal framing of questions pertaining to occupied territories.
The final part focuses on the business and human rights perspective, with chap-
ters on investment arbitration as a means for holding the occupant accountable
for its conduct towards foreign investments and investors; on the role and impact
of the soft law framework governing corporate activity (such as the UN Guiding
Principles) on business involvement with occupied territories; as well as a final
case study on the dispute involving Israeli football activity in settlements located
in the OPT and the legal responsibility of FIFA in this regard.
The book will appeal to academics, practitioners and policy-makers alike.
Antoine Duval is a Senior Researcher in International and European Law at the
Asser Institute, The Netherlands.
Eva Kassoti is a Senior Researcher in International and European Law as well as
the academic co-ordinator of the Centre for the Law of EU External Relations
(CLEER), at the Asser Institute, The Netherlands.
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Doctrine, Morality, and Non-Treaty Law
Markus P. Beham
Trade Facilitation in the Multilateral Trading System
Genesis, Course and Accord
Hao Wu
Asian Perspectives on International Investment Law
Edited by Junji Nakagawa
Cost and EU Public Procurement Law
Life-Cycle Costing for Sustainability
Edited by Marta Andhov, Roberto Caranta and Anja Wiesbrock
Promoting and Managing International Investment
Towards an Integrated Policy Approach
Edited by J Anthony VanDuzer and Patrick Leblond
International Investment Law and Gender Equality
Stabilization Clauses and Foreign Investment
Sangwani Patrick Ng’ambi
The Legality of Economic Activities in Occupied Territories
International, EU Law and Business and Human Rights Perspectives
Edited by Antoine Duval and Eva Kassoti
For more information about this series, please visit https://www.routledge.com/
Routledge-Research-in-International-Economic-Law/book-series/INTECONLAW
The Legality of Economic
Activities in Occupied
Territories
International, EU Law and Business and
Human Rights Perspectives
Edited by
Antoine Duval and
Eva Kassoti
First published 2020
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa
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© 2020 selection and editorial matter, Antoine Duval and Eva Kassoti;
individual chapters, the contributors
The right of Antoine Duval and Eva Kassoti to be identified as the
authors of the editorial material, and of the authors for their individual
chapters, has been asserted in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: International Legality of Economic Activities in Occupied
Territories (Conference) (2018: T.M.C. Asser Instituut) | Duval,
Antoine, 1985– editor. | Kassoti, Eva, editor. | T.M.C. Asser Instituut,
host institution.
Title: The legality of economic activities in occupied territories:
international, EU law and business and human rights perspectives /
Antoine Duval and Eva Kassoti.
Description: Abingdon, Oxon; New York, NY: Routledge, 2020. |
Series: Routledge research in international economic law |
Includes papers presented at a workshop held at the Asser Institute in
The Hague, on 17 October 2018. | Includes bibliographical references
and index.
Identifiers: LCCN 2020008468 (print) | LCCN 2020008469 (ebook) |
ISBN 9780367254988 (hardback) | ISBN 9780429288081 (ebook)
Subjects: LCSH: Military occupation—Economic aspects—Congresses. |
Sanctions (International law)—Congresses.
Classification: LCC KZ6429. I58 2020 (print) | LCC KZ6429 (ebook) |
DDC 341.6/6—dc23
LC record available at https://lccn.loc.gov/2020008468
LC ebook record available at https://lccn.loc.gov/2020008469
ISBN: 978-0-367-25498-8 (hbk)
ISBN: 978-0-429-28808-1 (ebk)
Typeset in Galliard
by codeMantra
Contents
List of contributors vii
Preface – John Dugard ix
Setting the scene: the legality of economic activities
in occupied territories 1
EVA KASSOTI AND ANTOINE DUVAL
1 Exploiting natural resources in occupied
territories – the conjunction between Jus in Bello,
Jus ad Bellum and international human rights law 25
KA LOK YIP
2 EU trade relations with occupied territories: third
party obligations flowing from the application of
occupation law in relation to natural resources exploitation 47
RUTGER FRANSEN AND CEDRIC RYNGAERT
3 Some state practice regarding trade with occupied
territories: from the GATT to today 65
EUGENE KONTOROVICH
4 The EU’s trade relations with northern Cyprus
obligations and limits under public international
and EU law 88
NIKOLAS KYRIACOU
5 EU labelling practices for products imported
from disputed territories 112
OLIA KANEVSKAIA
vi Contents
6 The EU’s economic engagement with Western
Sahara: the Front Polisario and Western Sahara
Campaign UK cases 137
JED ODERMATT
7 Western Sahara, the European Commission and
the politics of international legal argument 163
PÅL WRANGE
8 Business actors in Western Sahara: heightened
obligations and responsibilities under the UNGP? 199
DARIA DAVITTI
9 Offside? Challenging the transnational legality
of Israeli football activities in the Occupied
Palestinian Territories 212
ANTOINE DUVAL
10 Investment tribunals adjudicating claims
relating to occupied territories – curse or blessing? 235
SEBASTIAN WUSCHKA
Index 253
Contributors
Daria Davitti – Assistant Professor in Law University of Nottingham; Postdoc-
toral Fellow Lund University
John Dugard – Professor Emeritus, Universities of Leiden and the Witwaters-
rand; Former Judge ad hoc the International Court of Justice and UN Special
Rapporteur on Human Rights in the Occupied Palestinian Territory
Antoine Duval – Senior Researcher T.M.C. Asser Institute
Rutger Fransen – Graduate Researcher Utrecht University
Olia Kanevskaia – Researcher Tilburg Law and Economics Centre, Tilburg
University
Eva Kassoti – Senior Researcher T.M.C. Asser Institute, Academic Co-o rdinator
of the Centre for the Law of EU External Relations (CLEER)
Eugene Kontorovich – Professor of Law and Director of Center for Interna-
tional Law and the Middle East, George Mason University Antonin Scalia
School of Law
Nikolas Kyriacou – Legal Administrator at the Court of Justice of the EU
Jed Odermatt – Lecturer in Law City Law School, City, University of London
Cedric Ryngaert – Professor of Public International Law Utrecht University
Pål Wrange – Professor of Public International Law Stockholm University;
Director of the Stockholm Centre for International Law and Justice
Sebastian Wuschka  – Associate Luther Rechtsanwaltsgesellschaft mbH;
Visiting Lecturer Ruhr-University Bochum
Ka Lok Yip – Lecturer, University of Hong Kong
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Preface – John Dugard
Economic activities in occupied territories
Is there a need for a reassessment of the law of occupation?
John Dugard
I am pleased to have been invited to deliver the opening address at this workshop
to examine the legality of economic activities in occupied territories.
I congratulate the Asser Institute for having organized this workshop on a
topic that is much in the news but seldom subjected to the scrutiny it deserves by
international lawyers. A keynote speaker is spared the task of preparing a thor-
oughly researched and carefully presented paper. Instead she or he is required to
make a few challenging remarks on the topic under discussion and to leave it to
those who have written carefully researched scientific papers to make a contribu-
tion to the learning on the subject at hand.
There is much to be said on the legality under international law of economic
activities in occupied territories and of the lawfulness of third state economic re-
lations with an occupying power in respect of occupied territory. And much will
be said in this workshop on topics such as the permissibility of trading with an
occupying power under the GATT, the trade relations of the European Union
with occupied territories, the extraction of natural resources from occupied ter-
ritories and the complicity of corporations that engage in economic activities
in occupied territories. This conversation will take place within the traditional
legal framework of the law of occupation contained in the Hague Regulations,
the Fourth Geneva Convention of 1949, the Geneva Protocols of 1977 and cus-
tomary international law. Occupation will be assumed to be a temporary state
of affairs that will be brought to an end by negotiations between the occupying
power and the occupied people. After all, this is the way the West, which sets the
rules, likes to view most occupations in today’s world.
But isn’t there something strange about debating whether the supermarkets
in Europe should be allowed to sell dates from Israel settlements in the occu-
pied Jordan valley when people are being killed every week in occupied Gaza?
Or examining the implications of the Association Agreement between the EU
and Israel when homes are being demolished and communities bulldozed by the