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

271 Pages·2020·5.375 MB·English
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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. Routledge Research in International Economic Law International Challenges in Investment Law and Arbitration Edited by Mesut Akbaba and Giancarlo Capurro State Interest and the Sources of International Law 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 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 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. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. 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 Tay&lF orra ncis Tay&lF orra Gnrcoiusp http://taylorandfrancis.com 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

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