The most explicit legal regulations of the exploitation of natural resources in occupied territories are contained in the body of international law commonly known as jus in bello, more specifically, the regulations annexed to the Convention (IV) respecting the Laws and Customs of War on Land1 (the âHague Regulationsâ). Section III of the Hague Regulations, entitled âMilitary Authority over the Territory of the Hostile Stateâ sets out different provisions allowing an occupant to seize or administer property that could encompass different forms of natural resources.
In relation to private property, Article 52 of the Hague Regulations forbids â[r]equisitions in kind ⌠except for the needs of the army of occupationâ. Even when requisitions in kind are allowed, the provision imposes further requirements: the requisitions must be proportional to the resources of the country, must not involve the inhabitants in military operations against their own country, must be demanded on the authority of the commander in the locality occupied and must be compensated for. The requisition of land, as an example of natural resources, could potentially fall within the scope of regulation of Article 52 of the Hague Regulations if the land is privately owned, as is often the case. In addition, Article 53 of the Hague Regulations allows for the seizure of âmunitions of warâ, even if they are private property, on the condition that they be restored and compensation fixed when peace is made. To the extent that any privately owned natural resources qualify as âmunitions of warâ, their seizure could potentially fall within the scope of regulation of Article 53 of the Hague Regulations.
In relation to public property, the Hague Regulations provide for different treatments depending on the types of property. For âpublic buildings, real estate, forests, and agricultural estatesâ, Article 55 of the Hague Regulations provides for the occupying State to act as their âadministrator and usufructuaryâ and obliges them to âsafeguard the capital of these properties, and administer them in accordance with the rules of usufructâ. For âcash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the Stateâ, Article 53 of the Hague Regulations allows the army of occupation to take possession of them if they âmay be used for military operationsâ. In addition, Article 53 of the Hague Regulations also allows publicly owned âmunitions of warâ to be seized. It is generally agreed that natural resources, so far as they are publicly owned, would fall within the scope of Article 55 of the Hague Regulations.2 However, certain natural resources such as underground minerals or plants may be regarded as âmovable propertyâ under Article 53 of the Hague Regulations once extracted or severed from the ground3 and therefore they fall outside the scope of Article 55 of the Hague Regulations for no longer being appurtenant to the real estate.4 Nonetheless, the extraction of these natural resources is still subject to the rules of usufruct pursuant to Article 55 of the Hague Regulations and an occupant with no right to these natural resources cannot create such right by simply extracting or severing them from the ground and converting them into movables.5 Some however seek to characterise oil, even when it is underground, as âmovable propertyâ for the purpose of Article 53 of the Hague Regulations because of its similar physical state before and after being drilled from the ground (in contrast to other types of underground minerals).6 This argument has not however been accepted in jurisprudence.7 Nor has it been accepted that underground oil has âa sufficiently close connexion with direct military use to bring it within the meaning of âmunitions-de-guerreâ in Article 53â.8
The significance of determining whether the relevant natural resources fall within the scope of Article 55 or Article 53 of the Hague Regulations is that the rules of usufruct referred to in Article 55 differ substantively from the criteria in Article 53 allowing the taking of possession of movable property or the seizure of war munitions. The concept of usufruct originates from Roman law and essentially allows a person to enjoy the fruits of property on the condition that the property itself is left unimpaired.9 For instance, a usufruct of an apple tree would allow the beneficiary to eat any apples produced by that tree. However, a usufructuary is not entitled to alienate the subject matter of the usufruct; he cannot even alienate the usufruct.10
The application of the rules of usufruct in the context of military occupation has caused serious controversies. Following the Israeli occupation of the Abu Rudeis oil fields in the Sinai peninsula after the Six-Day War, Israel took control of and operated the oil production facilities, produced oil for domestic consumption and for sale and used the proceeds to pay for the occupation of the territory and other costs. While some accepted that Israel could use the proceeds of oil production from existing wells to cover its costs of occupation on the basis of Article 55 of the Hague Regulations,11 a General Assembly resolution declared that âall measures undertaken by Israel to exploit the ⌠natural resources of the occupied Arab territories are illegalâ.12 Another controversy centred on Israelâs opening of new oil wells. Israel argued that the discovery of additional reserves and the opening of new wells enhanced the value of the overall asset, thereby coming within the allowance under Article 55 of the Hague Regulations, the sole purpose of which was, according to Israel, to prevent waste or destruction of the asset.13 Others, however, argued that a usufruct does not entitle an occupant to enjoy something not previously exploited.14 Similar debates recurred in the US/UK occupation of Iraq in 2003.15
