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"Namibia Exception" and the Law of Occupation

par D'Aloia, Stefano
Référence PhD Day - International Humanitarian and Criminal Law Platform (12: 23 mai 2023: La Haye)
Publication Non publié, 2023-05-23

Communication à un colloque

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Résumé :

It is widely taught that the way in which the occupation took place has no effect neither on the rights and obligations of the occupied territories (OT), the inhabitants and the occupied State, nor on the rights and duties of the Occupying Power (OP). No matter whether the occupation is a consequence of a lawful use of force or an illegal aggression: the rights and duties that rely upon the several actors should be the same. However, since the occupation results from an illegal use of force, States and International Organisations (IO’s) have a legal duty not to recognise the consequences of this illegal use of force (see art. 41, par. 2, ARSIWA). This is the case, for instance, in illegally annexed Ukrainian territories or in Nagorno-Karabakh. Therefore, one can ask to what extent the effective control of the OP can produce legal effects. As a matter of principle, under the so-called “Namibia Exception” States and IO’s can recognise some acts linked to the day-to-day life of the inhabitants of the OT, like the registration of birth, death and marriage certificates (cf. ICJ, Namibia Advisory Opinion, 1971, par. 125).How can one deal with both sets of rules: occupation law on one side, and duty not to recognise the consequence of an illegal use of force on the other side ? Two main issues are at stake in my research:(1) Which acts adopted by an illegal OP are recognised by other States and on which basis ? (my preliminary results show that the criteria of “day-to-day life” or “ordinary administration” are not satisfactory to explain the decisions of recognition adopted by municipal courts. Political reasons and the will to respect occupation law seem to play a more fundamental role in these kinds of decisions)(2) Is this duty not to recognise currently transforming the duties of the OP ? In other words, are we moving towards a new occupation law regime where the legality of the occupation should be relevant?