Symposium : Foreign Occupation and International Law

• Ratner, Steven R.

Abstract

International organizations have increasingly joined states as occupiers of territory. Yet international law doctrine and policymakers have regarded occupation by states and administration by international organizations as distinct legal and political phenomena. The stigma associated with state occupation has translated into an assumption that the two operations are governed by different norms and their tactics for asserting control subject to different standards of legitimacy. This article rejects that dichotomy and the doctrinal parsing that comes with it. It emphasizes the common traits and challenges of these occupations and argues for a joint legal and political appraisal. From the legal perspective, the two sorts of missions operate under common legal frameworks; those managing both need to find the proper balance among international humanitarian law, international human rights law, local law, and any mandate from an international organization. As a political matter, each encounters resistance from those in the territory opposed to its presence, leading to coercive responses whose legitimacy will be questioned from within and outside the territory. The article concludes with some modest thoughts on how each sort of occupier might learn something from the other.