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May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez?

Published online by Cambridge University Press:  27 February 2017

Brice M. Clagett  and
O. Thomas Johnson Jr.
Brice M. Clagett
Affiliation:
Covington & Burling, Washington, D.C
O. Thomas Johnson Jr.
Affiliation:
Covington & Burling, Washington, D.C
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Extract

Since shortly after the 1967 Middle East war, Israel has sought to reduce its dependence on imported oil by exploiting the resources of captured Egyptian territory. Until recently attention was centered on the Sinai’s Abu Rhodeis fields, which in 1974 were reported to be meeting 55 percent of Israel’s needs. In 1975, however, these fields were returned to Egypt as part of the second Egypt-Israel Disengagement Agreement. Previously unexploited areas of the eastern Gulf of Suez then became the subject of Israeli efforts, and by the fall of 1976 exploratory drilling was in progress off the Sinai coast. On November 25, 1977, Israel announced that this drilling had resulted in a commercial strike, and on March 29, 1978, it was reported that commercial production had begun. The question whether Israel may rightfully exploit the oil resources of the Gulf thus came sharply into focus.

Type
Research Article
Information
American Journal of International Law , Volume 72 , Issue 3 , July 1978 , pp. 558 - 585
Copyright
Copyright © American Society of International Law 1978

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References

1 Within a month of Israel's victory in 1967, the Israeli Finance Minister had announced that Israel would take oil from Egyptian wells in the Sinai in order to help meet Israel's petroleum needs. 10 Middle East Economic Survey, July 14, 1967,at 5.

2 Cummings, , Oil Resources in Occupied Arab Territories Under the Law of Belligerent Occupation, 9 J. Int. L. & Econ. 533, 535 (1974).Google Scholar

3 Agreement between Egypt and Israel on the Sinai and Suez Canal, Sept. 4, 1975,UN Doc. S/l1818/Add. 1, reprinted in 14 ILM 1450 (1975). Israel agreed to relinquish the producing Sinai oil fields only after the United States agreed to “make oil available for purchase by Israel” to meet all its “normal requirements,” and in the event of an oil embargo against the United States to share available oil with Israel to meet the latter's “essential requirements.” Memorandum of Agreement Between the Governments of Israel and the United States, Sept. 1, 1975, reprinted in Hearing son Memoranda of Agreements Between the Governments of Israel and the United States Before the Senate Comm. on Foreign Relations, 94th Cong., 1st Sess. 249, 250(1975). (This agreement has not been published by the Department of State.)

4 See Gerson, , Off-Shore Oil Exploration by Belligerent Occupant: The Gulf of Suez Dispute, 71 AJIL 725 (1977).CrossRefGoogle Scholar The eastern Gulf had been the subject of previous Israeli interest in 1968–69, but nothing came of that interest at that time.

5 Washington Post, Nov. 26, 1977, at A-10, col. 5.

6 N.Y. Times, March 30, 1978, at A-7, col. 1. Israel's Minister of Energy is reported to have stated that production from the eastern Gulf could meet up to one quarter of Israel's oil needs. Id.

7 Dept. of State Legal Adviser, Memorandum of Law, Oct. 1, 1976, reprinted in16 ILM 733, 752 (1977) [hereinafter cited as Dept. of State Memorandum].

8 Id. at 748–52. The area of the Gulf in which Israel made its discovery is part of a concession granted by Egypt in 1974 to the Amoco Egypt Oil Company (Amoco-Egypt), a Delaware corporation and a wholly owned subsidiary of Amoco, and the state-owned Egyptian General Petroleum Corporation (EGPC). South Ghara Marine Area Concession Agreement of Dec. 14, 1974. This concession, as well as one other granted in 1974 and one granted in 1964, gives Amoco-Egypt and EGPC the exclusive right to explore for, develop, and produce petroleum in large parts of the eastern Gulf of Suez and provides for the acquisition by Amoco-Egypt of a share of all crude oil produced. (By assignment from Amoco-Egypt, an affiliate of the Italian firmAGIP is now also a party to the South Ghara agreement.)

9 Dept. of State Memorandum, supra note 7, at 752.

10 Government of Israel, Memorandum of Law, reprinted in 17 ILM 432 (1978)[hereinafter cited as Israeli Memorandum].

11 It is recognized that the dispute discussed herein might be resolved through negotiations. The principles here involved, of course, have applicability beyond the particular dispute.

12 Both sides make certain reservations concerning this assumption. The Department of State questions whether marine areas, at least those beyond the territorial sea, are susceptible to belligerent occupation (Dept. of State Memorandum, supranote 7, at 748–49); and it appears that Israel in the past has been unwilling to concede the applicability of the international law of belligerent occupation to its presence in the Sinai for fear that this would imply acceptance of Egyptian sovereignty over the area. Gerson, supra note 4, at 726–27; Cummings, supra note 2, at 541–43.It seems difficult seriously to deny that the territorial sea can be occupied, as can land areas, by the establishment of control there over. See Gerson, supra note 4, at 727–29. Indeed it would appear reasonable to go further than Gerson and to conclude that a portion of the continental shelf may be occupied, even though the superjacent high seas clearly may not. Whether Israel has in fact established and maintained an effective occupation of the territorial waters and continental shelf adjacent to the western coast of the Sinai is a question beyond the scope of this article. With respect to Israel's concern about sovereignty, it appears inconsistent with the clear intention of the Hague Regulations either to deny their protection to the inhabitants of any occupied territory or to hold that granting such protection constitutes recognition of the displaced government's title to the territory. See Cummings,supra note 2, at 541–50. The fact that Israel did not question Egypt's sovereignty over the Sinai in its Memorandum of Law is perhaps a reflection of the in substantial nature of its concern in this regard. We know of no non frivolous ground on which Egypt's sovereignty over the Sinai could be challenged (for Israel's best effort, see Y. Blum, Secure Boundaries and Middle East Peace 86, n.l75a (1971)); even if there were such a ground, it would not transform Israel's status into something other than that of a belligerent occupant.

13 See, e.g., 2 P. Fauchille, Traité De Droit International Public 215–16(1921); E. Feilchenfeld, the International Economic Law of Belligerent Occupation 87 (1942); C. Hyde, International Law Chiefly as Interpreted Andapplied by the United States 1878 (2d ed. 1945); A. Mcnair & A. Watts, the Legal Effects of War 368 (4th.ed. 1966).

14 Annex to the Hague Convention No. IV Respecting the Laws and Customs of War on Land, signed Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 [hereinafter referred to and cited as the Hague Regulations]

15 The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, dated Aug. 12, 1949, [1955] 6 UST 3516, TIAS No. 3365, 75 UNTS 287, also contains provisions pertaining to the treatment of property in occupied territory. For example, Article 33 prohibits reprisals against the property of protected persons in occupied territory, and Article 53 prohibits.

[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations … except where such destruction is rendered absolutely necessary by military operations. Both Egypt and Israel are parties to all four Geneva Conventions of 1949.

16 1 Trial of the Major War Criminals Before the International Military Tribunal 253–54, 6 F.R.D. 69, 130 (1946).

17 The courts of Israel and other countries have recognized the declaratory nature and universal applicability of the Hague Regulations. In its opinion in the Adolph Eichmann case the Supreme Court of Israel stated:

These acts [war crimes] are deemed to constitute in essence international crimes; they involve the violation of the provisions of customary international law which obtained before the Hague Conventions of 1907, the latter merely “declaring“ the rules of warfare as dictated by recognized humanitarian principles.

Attorney General v. Eichmann, 36 I.L.R. 277, 293 (1962) (emphasis in original).Accord, Colorni v. Ministry of War, 17 I.L.R. 419 (Court of Cassation, Italy 1950)(“Even in the absence of a treaty to this effect between the various States, these rules[Articles 52 and 53 of the Hague Regulations] govern the activities of States in time of war.“); Kostoris v. Meinl, 16 Ann. Dig. 471 (Court of Appeals of Trieste1949) (“[E]ven if it were not applicable as a Convention, [the Hague Convention] should have been applied nevertheless as representing customary international law, of which it was to a great extent a codification.“); Societa Italiana v. Mirabella, 15 Ann. Dig. 606 (Court of First Instance, Rome 1948) (observance of the Hague Regulations held obligatory, even though not ratified by Italy, since “the Convention only re-states the customs observed by civilized nations“); Italy in Corfu case, 14 Ann. Dig. 264(Court of First Instance of Corfu 1947) (“[A]lthough Greece is not a party to the Hague Convention of 1907, the Court must take note of [Article 43], as it is universally accepted.“).

18 Israeli Memorandum, supra note 10, at 432–33.

19 E. Feilchenfeld, supra note 13, at 6.

20 “[I]nternational law knows only two categories of occupation by a conquering state: belligerent occupation properly so-called and assumption of sovereignty over the conquered areas.” Freeman, , General Note on the Law of War Booty, 40 AJIL795, 796-97 (1946)Google Scholar. This view is reflected in Cobb v. United States, 191 F.2d 604(9th Cir. 1951), holding that, despite the fact that hostilities with Japan had long since ceased, U.S. authorities in Okinawa were bound by the Hague Regulations, and Article 43 thereof in particular, “until the terms of peace have been finally settled by treaty, proclamation, or otherwise.” Id. at 610. See also Great Britain, War of Fice, the Law of War on Land Being Part III of the Manual of Military Law,§447, at 130 (1958) [hereinafter cited as Great Britain, Manual of Militarylaw]; E. Fraenkel, Military Occupation and the Rule of Law 8–9 (1944); Gerson, , War, Conquered Territory, and Military Occupation in the Contemporary Legal System, 18 Harv. Int. L. J. 525, 528–29 (1977)Google Scholar. Schwarzenberger declares that, whenever the occupying power remains in effective control of the occupied territory, the lawof belligerent occupation ceases to apply if “the state of war is terminated by debellatio[the complete destruction of the hostile government] or consent.” 2 G. Schwarzenberger,International Law as Applied by International Courts and Tribunals317 (1968). Clearly, neither condition has been met in any occupied Egyptian territory.

21 E. Feilchenfeld, supra note 13, at 111.

22 Egypt-Israel Cease-Fire Agreement, Nov. 11, 1973, 28 Scor, Supp. (Oct.-Dec.1973) 98, UN Doc. S/11056/Add. 3, annex (1973), reprinted in 12 ILM 1312 (1973); Agreement Between Egypt and Israel on the Sinai and the Suez Canal, supra note 3.

23 S. Siksek, the Legal Framework for Oil Concessions in the Arab World 9–10 (1960).

24 See note 8, supra.

25 If the oil resources of the Gulf were private property for purposes of the Hague Regulations, then Israel's rights with respect to such oil resources would be some what different. Article 46 of the Regulations provides that private property “must be respected“and “cannot be confiscated.” Articles 43 and 52, however, establish narrow exceptions to the general rule of respect for private property that could be applicable in the Gulf of Suez. Article 43 allows an occupant to expropriate private property if necessary in order to meet its obligation under that article to ensure public order and safety within the occupied territory. In re Krupp, 15 Ann. Dig. 620, 623 (United States Military Tribunal at Nuremberg 1948). And Article 52 authorizes an occupant to requisition property and services, but only as necessary to meet “the needs of the army of occupation.” Under both exceptions the property owner must be compensated for the taking. (For discussions of the obigation of an occupant to pay compensation in respect of expropriations under Article 43, see E. Feilchenfeld,supra note 13, at 50; M. Greenspan, the Modern Law of Land Warfare 296 (1959).)

26 Although the word “immovable” is not used in Article 55, discussions of this provision by commentators and courts describe its subject matter as “immovable“public property. E.g., D. Graber, the Development of the Law of Belligerentoccupation 1863–1914, at 170 (1949); 2 L. Oppenheim, International Law §140,at 403 (7th ed. H. Lauterpacht 1952); Cummings, supra note 2, at 559; In re Weizsaecker,16 Ann. Dig. 344, 360–61 (United States Military Tribunal at Nuremberg1949). This characterization is wholly consistent with the authoritative French text and with the different treatment of “movable” property in Article 53(1).

27 23 I.L.R. 810 (Court of Appeal, Singapore 1956) [hereinafter cited as Bataafsche].

28 See Cummings, supra note 2, at 557 n.101. One of the principal issues in Bataafschewas whether crude oil in the ground, if privately owned, could be seized byoccupation forces under Article 53(2) as “ammunition of war” (“munitions deguerre“). The court held that it could not on the ground that subterranean crude oil was “immovable” property (Article 53(2) applies only to movables), and also onthe ground that such oil was “not susceptible of direct military use.” Bataafsche,supra note 27, at 823–24. The latter basis for this holding has been criticized asunrealistic. See id. at 846–47 (concurring opinion of Whitton, J.); M. Mcdougal & F. Feliciano, Law and Minimum World Public Order 818 (1961). Not withstanding the implication contained in the Israeli Memorandum, supra note 10, at 436,neither Judge Whitton nor Professors McDougal and Feliciano directed their criticism at the ruling in Bataafsche that crude oil in the ground constitutes “immovable“property. See Bataafsche, supra note 27, at 846–47; M. Mcdougal & F . Feliciano,supra, at 818.

29 For example, the French Code Minier provides that “mines are immovable property“(Code Minier, Decree No. 58–538, Aug. 16, 1956, Art. 24, [1956] Journal of -Ficiel De La République français 8004, 8006) and that “areas known to contain …hydrocarbons in liquid or gaseous form” are regarded as mines (id. at Art. 2) . In addition, see Schweizerische Zivilgesetzbuch, Art. 655 (Switzerland) (I. Williams transl. 1925); Codico Civil §334 (Spain); Burgerliches Gesetzbuch [Bgb], Arts.93, 94(1) (German Federal Republic) (I. Forrester, S. Goren, H. Ilgen transl. 1975);R. Megarry & H. Wade, The Law of Real Property 12 (4th ed. 1975); Yiannopoulos, ,Movables and Immovables in Louisiana and Comparative Law, 22 la. L.Rev. 517, 518 (1962).Google Scholar

Summers summarizes the status of oil and gas under American law as follows:Oil and gas as they are found in the earth are a part of the total physical aggregate which in law is designated land, and legal relations respecting them are uniformly held to be real property.

W. Summers, The Law of O Il and Gas §21 (1954) (footnotes omitted). Accord,Federal Land Bank of Wichita v. Board of County Comm'rs, 368 U.S. 146, 153 (1961)(“Mineral estates are realty under [Kansas] law.“); Harrington v. Texaco, 339 F.2d 814, 821 n.15 (5th Cir. 1964) (“In Texas, oil and gas is regarded as realty when in place… . “) ; Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., 310 S.W. 2d 287, 290 (Ky. App. 1958) (“[I]t is well settled that oil in place is a part of the land itself… .“)

30 To support its contention that Israel enjoys broad rights with respect to state owned property, the Israeli Memorandum quotes from an opinion of the U. S. Attorney General regarding the U.S. rights with respect to public property in Cuba following the Spanish-American War (Israeli Memorandum, supra note 13, at 439–40):

[I]t is lawful for the conqueror, in administering the conquered territory, to make such use of the property previously belonging to the former sovereign as he sees fit. There is, therefore, in the President of the United States, acting by virtue of his constitutional authority as Commander in Chief of the Army and Navy, adequate power to use and make disposition of property in Cuba formerly belonging to the Crown of Spain or subject to the Imperial prerogative, and this includes the right to dispose of mining and other property formerly belonging to the SpanishCrown.

23 Op. Att'y Gen. 222, 226–27 (1900). However, this opinion, even if it had been written after the Hague Regulations were adopted, would not support the view that Article 55 grants occupants substantially unrestricted authority over public immovable property. Article 55 defines the rights of a belligerent occupant with respect to immovable property “belonging to the hostile State.” In the treaty ending the Spanish- American War (Treaty of Peace Between the United States and Spain, signed Dec.10, 1898, [1899] 30 Stat. 1754, T.S. 343, 11 Bevans 615), Spain relinquished not only“all claim of sovereignty over and title to Cuba” (Art. 1) but also “all the buildings, wharves, barracks, forts, structures, public highways and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain” (Art. 8). Thus when the Attorney General wrote the opinion in question there was no immovable property in Cuba “belonging to the hostile State,“and therefore no property to which Article 55 could apply even if it had been in force at the time. Cf. Neely v. Henkel, 180 U.S. 109 (1901).

31 The leading case regarding the extent of a belligerent occupant's right to exploitpublicly owned natural resources is Administration of Waters and Forests v. Falck,4 Ann. Dig. 563 (Court of Cassation, France 1927). During the German occupation of parts of France in World War I, Falck had cut trees in a public forest pursuant to contracts with the occupation authorities but contrary to French forestry regulations in effect at the commencement of the occupation. The trial court construed Article 55very loosely, noting the necessities of modern warfare, and ruled in favor of Falck,3 Ann. Dig. 480 (Court of Nancy, France 1926). The Court of Cassation reversed, holding that Article 55 required a belligerent occupant, and anyone working under a contract with the occupation authorities, to observe the regulations limiting the rate at which forests could be exploited that existed prior to the occupation. Clearly, the decision supports a restrictive interpretation of Article 55.

Other frequently cited cases in which the provisions of Article 55 were interpreted and applied are: The Lighthouses case (France v. Greece), 23 I.L.R. 806 (Permanent Court of Arbitration 1956); French State v. Lemarchand, 15 Ann. Dig. 597 (Court of Appeal of Rouen, France 1948). In none of these cases was consideration given to the extent of permissible exploitation of state-owned natural resources by belligerent occupants.

The Guano case (France v. Chile), 15 R. Int. Akb. Awards 125 (1901), was decided before the Hague Regulations took effect but recognized that under customary law therights of a belligerent occupant to public immovable property were limited to the rights of usufruct. Id. at 367. Without determining whether guano was movable or immovable property, the tribunal held that the occupant had a right to exploit the depositsin either event. Since the deposits were under active exploitation prior to the occupation,id. at 126–27, the decision bears no implication that a usufructuary may exploit previously unexploited resources.

32 Actes De La Conférence De Bruxelles De 1874 Sur Le Projet D'Une Convention International Concernant La Guerre 61 (1874).

33 See D. Graber, supra note 26, at 170, 189.

34 Id. at 26.

35 The draft article read as follows:§7. The right to use public buildings, real estate, forests and agricultural estates belonging to the hostile State and situated in the occupied country, likewise passes to the army of occupation. Actes De La Conférence De Bruxelles De 1874, supra note 32, at 5.

36 Id. The only international model to which the delegates could refer in their work was the code (General Orders No. 100) prepared by Francis Lieber to guide the conduct of Union forces in the American Civil War. 2 U.S. War Dept., Generalorders of the War Department, 1861–63, at 104 (1864). Article 31 of the “LieberCode” provided as follows with respect to public immovable property:

A victorious army … sequesters for its own benefit or that of its government all the revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the contest is made complete.Id. at 107. This provision reflected the restrictions of customary international law at that time. See, e.g., D. Graber, supra note 26, at 162 and authorities cited at n.3.The extent to which minerals would be considered “revenues of real property” under this formulation is not clear, although the logical presumption is that “revenues” would not include proceeds from the depletion of capital and that the pre-1874 law thus reflected at least an embryonic usufructuary standard. As is demonstrated infra, the final product of the Brussels Conference eliminated this ambiguity by expressly employing the standard of usufruct.

37 Actes De La Conférence De Bruxelles De 1874, supra note 32, at 56, 58.

38 Id. at 15, 28, 56, 58.

39 Id. at 27, 28.

40 See note 36, supra.

41 Israeli Memorandum, supra note 10, at 434—35.

42 [1925] PCIJ, ser. B, No. 10.

43 [1950] ICJ Rep. 127.

44 [1925] PCIJ, ser. B, No. 10, at 19.

45 Id. at 20.

46 [1950] ICJ Rep. at 132.

47 Id. at 148.

48 See 2 C. Sherman, Roman Law in the Modern World 9 (3d ed. 1937). See also Pugliese, , On Roman Usufruct, 40 Tut. L. Rev. 523 (1966)Google Scholar.

49 Compare The Digest of Justinian 7.1 (2 C. Monro transl. 1909) [hereinafter cited as Digest] with Code Civil (C. Civ.) Arts. 582–99 (France) (J. Crabb transl.1977) and Bgb, supra note 29, §§1030–1067.

50 The Institutes of Justinian 2.4 (J. Abdy and B. Walker transl. 1876) [hereinafter cited as Institutes] (emphasis added). For general discussions of the Romanlaw of usufruct, see W. Buckland, A Text-Book of Roman Law From Augustus Tojustinian (1963); H. Jolowicz, Historical Introduction to the Study of Romanlaw (1932); H. Roby, Roman Private Law (1902); 2 C. Sherman, supra note48; A. Watson, The Law Of Property in the Later Roman Republic (1968);Pugliese, supra note 48.

51 H. Roby, an Introduction to the Study Of Justinian's Digest 27–28 (1884).“A proper usufruct relates only to such things as can be restored entire when the right expires, and not to such things as wine or other fungibles, which perish in the use.“T. Mackenzie, Studies in Roman Law 187 (1898).

52 Institutes 2.4.2. See 1 H. Roby, supra note 50, at 484; A. Watson, supra note 50, at 207. In the reign of either Augustus or Tiberius, the Roman Senate enacted legislation making fungible items consumed by use eligible for a status known as quasi-usufruct. Under this legislation the quasi-usufructuary was required to give security at the commencement of the quasi-usufruct and, upon its expiration, to replace any goods consumed. Institutes 2.4.2; 2 C. Sherman, supra note 48, at 163.

53 Digest, supra note 49, at 7.1.13.4.

54 Digest, supra note 49, at 7.1.13.5; H. Roby, supra note 50, at 485; Pugliese, supranote 48, at 546; Comment, , Mineral Leases on Land Subject to Usufruct, 34 Tul. L.Rev. 784, 792 (1960)Google Scholar.

55 Digest 24.3.13–14 (2 B. Rodriguez de Fonseca transl. 1873).

56 6 F. Laurent, Principes De Droit Civil 564 (4th ed. 1887). In a some what different vein, Demolombe explains the difference between Roman law and French law regarding the extraction of minerals by usufructuaries as follows:

Roman legal experts had other rules on this subject; and they granted the usufructuary in every case the right to extract metals and stones contained in the earth; the right, we say, not only to continue exploitation that was already begun by the owner, but to begin new development there himself, ipse instituere; doubtless… because the great abundance of these products made them think they were in exhaustible…

10 C. Demolombe, Cours De Code Napoléon 376 (1854). And in a chapter of hisMeditationes Ad Pandectas entitled “Metalla omnia renascuntur” (“All Metals are Renewed“), the 18th-century commentator Leyser provides an indication not only of the nature of the Romans’ misconception regarding minerals, but also of its long evity:

Many distinguish between those metals which are renewed and those which are not renewed … . And yet the quite difficult question again arises as to which metals are renewed. We hold with those who say that all metals are renewed.… As it happens Ulpian believed likewise …

.A. Leyser, Meditationes Ad Pandectas 427–28 (1741). The Romans’ beliefs regarding minerals are discussed at some length in The Master v.. African Mines Corporation, Ltd., [1907] Transvaal L. Rep. 925 (South Africa). The court in this case commented as follows with respect to the appropriateness of applying the permissive Roman rule to modern-day mineral exploitation:

It may have been very well to allow the usufructuary to dig for minerals in days when they were supposed to renew themselves within a century and when the extraction was a slow process; but nowadays, when by the use of high explosives and efficient drills the minerals can be extracted in a short time, it does not seem desirable that the usufructuary should leave the real owner an exhausted farm.Id. at 931.

57 Civil-law commentators have for some time recognized that minerals are not properly considered fruits and that a usufructuary should not, according to the general principles of usufruct, be allowed to exploit them. Planiol and Ripert, for example, comment as follows:

Owners sometime derive from their property certain products that are not fruits. This may be due to the fact either that the element of periodicity is wanting or that, in collecting them, the substance of the thing is exhausted. These products are, on the one hand, trees and on the other, the substances that are extracted from mines, pits and quarries. It follows from the special nature of these products that, in principle, the usufructuary's right of enjoyment cannot apply to them.

1 M. Planiol & G. Ripert, Civil Law Treatise §2790 (Louisiana State Law Institute transl. 1959). In addition, see 6 F. Laurent, supra note 56, at 563–64; 2 C.Aubry & C. Rau, Droit Civil Français §230, at 479 (Louisiana State Law Institute transl. 1966).

58 C. Civ., supra note 49, Art. 578 (emphasis added). “Extraction of matter which does not replace itself represents the taking of the substance of the thing.” 2 C.Aubry & C. Rau, supra note 57, at 479.

59 C. Civ., supra note 49, Art. 598 (emphasis added).

60 1 M. Planiol & G. Ripert, supra note 57, at 650. Laurent is critical of this rationale: To be sure, the usufructuary enjoys like the proprietor, but he enjoys the fruits, and not the capital. The products of mines and quarries are certainly not a fruit, but a part of the ground. It is therefore the substance of the thing which the exploiter successively depletes; how can the usufructuary have the right to exploit the mines and quarries when he must conserve the substance?6 F. Laurent, supra note 56, at 563–64.

61 Code Civil, Arts. 578, 598 (Belgium) (adopted in 1804); Code Civil, Arts. 578,598 (Geneva) (adopted in 1804); Allgemeines Bürgerliches Gesetzbuch Für Das KöNigreich Baiern, Arts. 601, 621 (Bavaria) (adopted in 1809); Badische Landrecht, Arts. 578, 598 (Baden) adopted in 1810).

62 Burgerlijk Wetboek, Art. 823 (P. Haanebrink transl. 1921).

63 Codice Civile, Art. 987 (M. Beltramo, B. Longo and J. Merryman transl. 1969).

64 Codigo Civil, Art. 2213.

65 The Prussian Civil Code of 1794, the Allgemeines Landrecht (ALR), provided thatthe usufructuary of a mine “is only entitled to the use of the yield” of the mine. Alrpt. I, tit. 21. §37. In 1846, the Supreme Court of Prussia (Geheimes Obertribunal)commented as follows with respect to this section:

Usufruct is conceivable not with respect to the right to exploit mines but only with respect to the exploited minerals as the very substance of the right to exploitmines … . Minerals may not be considered fruits of the land, which are year after year or at all regrowing; exploited minerals are a part of the substance, which is not for the usufructuary to claim. Therefore, the usufructuary may consider the exploited minerals as capital only, the interest of which is due to him.

12 Entscheidungen Des Koeniglichen Geheimen Obehthibunals 463 (1846), discussed in C. Koch, Allgemeines Landrecht Pt. I, tit. 21, note 27 (1886). Similar provisions are found in the Constitution of Kursachsen of 1572 and the Constitution of Saxony of 1616, discussed in C. Haubold, Handbuch Deh Wichtigsten Saechsischengesetze Von Allgemeinehem Inhalte 2 (1837). Both constitutions containprovisions requiring that minerals taken by a usufructuary, or their value, be returned to the owner of the land from which they were taken at the end of the usufruct. Constitution of Kursachsen, Pt. Ill, Art. 25 (1572); Constitution of Saxony, Pt. II, Art. 2, §16 (1616).

Apparently, the same rule prevailed under German common law. In 1610, the Supreme Court of Friesland held that the usufructuary of a tract of land on which turfis exploited enjoyed only a quasi-usufruct with respect to the turf and, therefore, could claim only the interest on the proceeds of the sale of the turf, the proceeds themselves being reserved for the owner of the land. 16 Erkenntnis Der Suprema Frisiaecuria (1610), discussed in Schröder, , Ueber das Recht des Niessbrauchers an MineralischenProdukten, Insbesondere Bergwerkserzeugnissen, 49 Archiv Fur Die Civilistischepraxis 246, 360 (1866)Google Scholar. In the decision above, the Supreme Court of Prussia took the same view more than 200 years later:

The answer to our question under common law is disputed; we are of the opinion that a usufructuary may not exploit fossils including coal, which are not regrowing, and that he is only entitled to the use of the interest borne by the exploited and capitalized products.12 Entscheidungen Des Koeniglichen Geheimen Obertribunals, supra, at 463.

66 Article 509 of the Austrian Civil Code of 1811 provides as follows:The usufruct is the right of using the property of another without any restriction, assuming the use does not injure the substance of the property.

General Civil Code Of Austria, Art 509 (P. Baeck transl. 1972). Article 279 of the Zurich Civil Code of 1854 defines a usufruct as “the right to use the thing and to enjoy its fruits in a manner such that its substance remains preserved.” Privatrechtlichegesetzbuche Des Kantons Zurich, Art. 279. And the 1862 civil code of the canton of Grisons defines a usufruct as “the right to draw, without impairing the substance, all uses and enjoyments from the thing of another- which could be drawn from it as proprietor… .” Bünderisches Prtvatrecht, Art. 264.

67 Bürcerliches Gesetzbuch §609 (Saxony) (adopted in 1865). Apparently, the Saxon code also allowed usufructuaries to enjoy the full proceeds of minerals taken from land subjects to the usufruct. E. Siebenhaab, Lehbbuch Des Sachsischen Privatrechts 6 (1872). Thus, the Saxon code differed from the Prussian code, the 17thcentury Saxon constitution, and German common law.

68 See McClean, , The Common Law Life Estate and The Civil Law Usufruct: A Comparative Study, 12 Int. & Comp. L.Q. 649, 662-63 (1963)Google Scholar; 2 J. Westlake, Internationallaw 119 (1913).

69 1 E. Kuntz, A Treatise on Oil and Gas 169 (1962).

70 W. Blackstone, Commentaries on the Laws of England 281–82 (1884).Accord, Saunder's Case, 77 Eng. Rep. 66 (K.B. 1599); Viner v. Vaughn, 48 Eng. Rep.1262 (1840); Dashwood v. Magniac, [18911 3 Ch. 306. The open-mine rule has long been followed in the United States as well. 1 E. Kuntz, supra note 69, at 174–75 and cases cited at n.3.

71 The Brussels Conference was attended by delegates from Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Greece, Italy, the Netherlands, Norway and Sweden (then united), Portugal, Russia, Spain, Switzerland, and Turkey. Actes De La Conférence De Bruxelles De 1874, supra note 32, at 19.

72 Argentina and Colombia did not attend the Brussels Conference, but by the time it was held they also had adopted civil codes that prohibited usufructuaries from opening new mines. Codigo Civil, Art. 2900 [2866] (Argentina) (adopted in 1869); Codigo Civil Nacional, Art. 843 (Colombia) (adopted in 1873).

73 See Svod Zakonov Grazhdanskikh (Civil Code) (1857) (Russia); Medjelle(Civil Law) (W. Grigsby transl. 1895) (Turkey).

74 Codigo Civil, Arts. 467, 476, 477 (adopted in 1888).

75 Civil Code, Arts. 1142 et seq. (adopted in 1946).

76 See K. Illum, Dansk Tingshet (Danish Property Law) (1952); M. Ingstad, O M Leie Efteh Romersk Ret—oversaettelse Og Forklaring Af Digesterne 19de Bogs 2Den Titel Del Vis Under Sammenligning Med Norsk Ret (Lease in RomanLaw—Translation and Explanation of the Digests 19th Book 2nd Title Party Compared to Norwegian Law) 66 (1911).

77 BGB, supra note 29, at §1030. “Emoluments are defined … as the fruits plus theadvantages which the use of the thing affords.” 1 E. Cohn, Manual of Germanlaw 207 (1968).

78 BGB, supra note 29, at §1036.

79 Id.

80 Id. at §1037(2).

81 See also Schweizerische Zivilgesetzbuch, supra note 29, at §769 (usufructuary permitted to open new mines so long as “the industrial character of the land be not materially changed thereby“).

82 Israeli Memorandum, supra note 10, at 433, paraphrasing M. Mcdougal & F.Feliciano, supra note 28, at 812. The Israeli Memorandum omits significant portions of these authors’ views: “As a practical matter, the applicable specific prohibitions are simply that the occupant may not wantonly dissipate or destroy the public resources and may not permanently … alienate them …” (emphasis added). In the case of non renewable resources, any exploitation amounts to the permanent alienation which McDougal and Feliciano condemn. Moreover, their reference to wanton dissipation would be meaningless if applied to mineral exploitation, for it suggests no standard whatsoever with respect to the exploitation of non renewable resources; as applied to fruits (timber, crops, other renewable resources), however, it suggests a measurable maximum rate of exploitation: the rate at which the fruit renews itself. Application of that standard to mineral exploitation would, of course, forbid all such exploitation.

83 BGB, supra note 29, at §1036. A usufructuary's right to open new mines under German law also is limited by section 1038 of the code which provides that “the owner [of the land] may request that the degree of exploitation and the mode of economic management be regulated by an economic plan.” If the owner and usufructuary cannot agree on a plan, one may be imposed by a court on application by either party.4 H. Soergel & W. Siebeht, Bürcerliches Gesetzbuch 537 (1968). Obviously, the displaced sovereign of occupied territory is not in a position to insist that the exploitation of its territory comply with a mutually acceptable or judicially imposed plan. It seems a reasonable assumption that Germany would not have granted usufructuaries broad authority to open new mines absent the safeguards against abuse of such authority contained in section 1038. The fact that those safeguards are unavailable in an occupation situation constitutes an additional reason why it is inappropriate to define the rights of belligerent occupants in terms of the modern German law of usufruct.

84 See note 60, supra, and accompanying text.

85 The Israeli Memorandum asserts that under a rule prohibiting such exploitation an occupant would be prevented from exploiting state-owned oil resources even if such exploitation were necessary to preserve the economic well-being of the occupied territory. Israeli Memorandum, supra note 10, at 433. Occupants may avoid this result, however, by exercising their authority under Article 43 of the Hague Regulations. In In re Krupp, 15 Ann Dig. 620 (United States Military Tribunal at Nuremberg 1948), it was held that Article 43 “permits the occupying power to expropriate either public or private property in order to preserve and maintain public order and safety [provided he respects], unless absolutely prevented, the laws in force in the occupied country.” Id. at 623.E. Lauterpacht provides the following example of a situation in which the expropriation of raw materials might be justified:

Such a situation might arise, for example, in areas where the extraction of minerals constituted the sole or principal occasion for the employment of labour. However, where such circumstances do not exist, the situation would appear to be ,that an Occupant is not entitled compulsorily to purchase the raw materials he seeks. Lauterpacht, , The Hague Regulations and Seizures of “Munitions de Guerre,” 32 Brit.Y.B. Int. L. 218, 236 (1955–56).Google Scholar See also E. Feilchenfeld, supra note 13, at 50–51; M. Greenspan, supra note 25, at 295–96.

86 Israeli Memorandum, supra note 10, at 434. In fact the area in question was already recognized to be very likely oil bearing, and Amoco would have under taken exploration and made the discovery if the Israeli occupation had not intervened. In such circumstances, to reward a trespasser for making the discovery first would be unconscionable.

87 See notes 57–85, supra, and accompanying text.

88 G. Von Glahn, the Occupation of Enemy Territory 177 (1957). Accord,E. Castrén, the Present Law of War and Neutrality 230 (1954) (the capitalvalue of immovable property must be conserved); 2 G. Schwarzenberger, supra note20, at 248 (exploitation limited to “natural and legal fruits“).

89 J. Stone, Legal Controls Of International Conflict, 714 (1954). In addition, see 2 P. Fauchille, supra note 13, at 253–54 (occupant must not exploit mines or forests at a rate greater than that previously established); M. Greenspan, supranote 29, at 288 (“exploitation may not exceed what is usual or necessary“).

90 Dept. of the Army, the Law of Land Warfare (Fm 27–10), para. 402(1956) [hereinafter cited as FM 27–10].

91 Great Britain, Manual of Military Law, supra note 20, at §610.

92 M. Greenspan, supra note 25, at 288; G. Von Glahn, supra note 88, at 177;Great Britain, Manual of Military Law, supra note 20, at §610.

93 2 P. Fauchille, supra note 13, at 253–54.

94 The Israeli Memorandum argues that “since … adjacent oil fields and oil wells often derive their oil from the same underground source” restricting occupants to the exploitation of existing wells would “be an arbitrary and illogical distinction.“Israeli Memorandum, supra note 10, at 433. As noted above, however, Article 55 seeks to preserve the capital of publicly owned immovable property. Prohibiting an occupant from exploiting oil deposits by means of wells not in existence at the commencement of the occupation serves this purpose, regardless of whether one or several deposits are involved, since pools of oil, like veins of solid minerals, can be exploited more rapidly and more thoroughly if one increases the number of extractive facilities devoted to the task. Thus the prohibition against new wells cannot fairly be labelled either arbitrary or illogical. Where different pools are involved, the Israeli argument can of course have no relevance whatever.

95 Cf. e.g., H. Halleck, International Law 42 (1861); J. Stone, supra note 89, at 36 n.51.

96 This interest has repeatedly been recognized by various organs of the United Nations in resolutions concerning the “permanent sovereignty” of states over their natural resources. For example, as early as 1962 the General Assembly declared that[t]he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

GA Res. 1803, para. 1, 17 GAOR, Supp. (No. 17) 15, UN Doc. A/5217 (1962). See also Charter of Economic Rights and Duties of States, Art. 2, GA Res. 3281, 29 GAOR, Supp., (No. 31) 52, UN Doc. A/9631 (1975); SC Res. 330, UN Doc. S/INF./28 (1973).

97 See Gerson, supra note 4, at 730–31. This argument simply attempts, unsuccessfully in our view, to neutralize a presumed policy argument in favor of a restrictive rule. Neither Gerson nor any other authority appears to have offered any affirmative policy argument supporting a loose construction of Article 55.

Gerson attempts to minimize the incentive to prolonged occupation of a rule allowing mineral exploitation by pointing to Israel's “peaceful transfer of the oil wells at Abu Rhodeis … to Egypt in 1975 … .” Gerson, supra at 731. This ignores the fact that in return for that transfer Israel extracted a guarantee of oil supplies from the United States. Note 3, supra. Such guarantees by third states will not normally be available.

98 For example, the court in Bataafsche specifically held this to be the purpose of the Japanese invasion of the Dutch East Indies. In the court's view, the evidence established that the seizure of the appellants’ oil installations in Sumatra by the invading army was carried out as part of a larger plan prepared by the Japanese State to secure the oil resources of the Netherlands Indies, not merely for the purpose of meeting the requirements of an army of occupation but for the purpose of supplying the naval, military and civilian needs of Japan, both at home and abroad, during the course of the war against the Allied Powers.Bataafasche, supra note 27, at 821.

99 S. Siksek, supra note 23.

100 See note 8, supra, and accompanying text.

101 See note 8, supra.

102 Whether Israel may, without undertaking any exploitation itself, prevent Amocofrom exploiting its concessions in the eastern Gulf of Suez for the duration of the occupation is a question not considered herein.

103 Compare Israeli Memorandum, supra note 10, at 441 with Dept. of State Memorandum,supra, note 7, at 751–53. In State of the Netherlands v. the Federal Reserve Bank, 201 F.2d 455 (1953), the U.S. Court of Appeals for the Second Circuit held that “the legitimate sovereign should be entitled to legislate over occupied territory insofar as such enactments do not conflict with the legitimate rule of the occupying power.” Id. at 462. Foreign courts generally have reached the same conclusion. Thus, in Ammon v. Royal Dutch Co., 21 I.L.R. 25 (Federal Tribunal, Switzerland1954), decrees of the Dutch Government in exile issued in London during World War II that prohibited the payment of certain dividends were held to be “constitutionally laws of the Netherlands [that] applied ah initio to the territory occupied by the German army even though they could not be effectively implemented there until the liberation of that territory in the autumn of 1944 … . “ . Id. at 27. Accord, Agrocide v. Arsocid, 13 Ann. Dig. 349 (Court of Appeal of The Hague, Netherlands 1946);Rotterdamsche Bank, Ltd. v. Nederlandsch Beheers-Institut, 15 Ann. Dig. 530 (Court of Appeal of The Hague, Netherlands 1948), aff'd, 16 Ann. Dig. 428 (Supreme Court, Netherlands 1950); Public Prosecutor v. Reidar Haaland, 12 Ann. Dig. 444 (Supreme Court, App. Div. Norway 1945); Re Hoogeveen, 12 Ann. Dig. 432 (Court of Cassation, Belgium 1944). It appears that only the courts of Greece have taken a different view of the decrees of displaced sovereigns. See e.g., Occupation of Cavalla Case, 5Ann. Dig. 496 (Court of Thrace, Greece 1930); Re X.Y., 12 Ann. Dig. 431 (Council of State, Greece 1945). The court in State of the Netherlands v. Federal Reserve Bank, supra, specifically rejected the Greek cases as contrary to the weight of authority.201 F.2d at 462. Furthermore, the report of the court's decision in Re X.Y. implies that more than one Greek government-in-exile claimed sovereignty at the time of the decree at issue.

The all-but-unanimous judicial view of the displaced sovereign's rights also is endorsed by commentators. Von Glahn, for example, states that[t]he currently accepted principle appears to be that the legitimate sovereign may legislate for an occupied portion of his territory, provided that his laws do not conflict with the powers of the occupant as outlined in conventional international law. G. Von Glahn, supra note 88, at 35 (emphasis in original). Accord, A. Mcnair & A. Watts, supra note 13, at 446; E. Feilchenfeld, supranote 13, at 145.

104 Accord, Dept. of State Memorandum, supra note 7, at 749–52.

105 See note 102, supra.

106 It is indisputable that any rights Israel may create during the occupation with respect to public immovable property would terminate when the occupation ends.See, e.g., E. Feilchenfeld, supra note 13, at 55; M. Greenspan, supra note 25, at606–07; J. Stone, supra note 89, at 714; FM 27–10, supra note 90, at para. 402; Greatbritain, Manual of Military Law, supra note 20, at §610.

107 Article 6(b) of the Charter of the International Military Tribunal (Aug. 8, 1945,59 Stat. 1544, 1547) specifies several war crimes, including “plunder of public or private property,” that were subject to the jurisdiction of the Tribunal.

108 2 G. Schwarzenberger, supra note 20, at 250.

109 Even before the Nuremberg trials, it appears that there was a consensus among international jurists to the effect that an occupant could take property only for purposes of the occupation. The rights of the occupant do not include any right to dispose of property, rights or interests for purposes other than the maintenance of public order and safety in the occupied territory. In particular, the occupant is not, in international law, vested with any power to transfer a title which will be valid outside that territory to any property, rights or interests which he purports to acquire or create or dispose of; this applies whether such property, rights or interests are those of the State or of private persons or bodies. Resolution of the London International Law Conference of 1943, reprinted in G. Vonglahn, supra note 88, at 194–96.

110 1 Trial of The Major War Criminals Before the International Military Tribunal 239, 6 F.R.D. 69, 120 (1947) (emphasis added). Judgments rendered in the subsequent trials of lesser war Criminals also endorsed the principle that an occupied area could only be required to bear the costs of its own occupation. See, e.g., In re Krupp 15 Ann. Dig. 620 (United States Military Tribunal at Nuremberg 1948); In re Flick, 14 Ann. Dig. 266 (United States Military Tribunal at Nuremberg1947).

The decisions of the Nuremberg tribunals in this regard were applied to the exploitation of oil resources by a belligerent occupant in the Bataafsche case, supranote 27. In this case, as noted previously, the Singapore Court of Appeal held that the exploitation of the oil resources of the Dutch East Indies by Japanese occupation forces went beyond that necessary to meet the requirements of those forces and was“for the purpose of supplying the naval, military and civilian needs of Japan.” Id.at 821. The Court went on to hold that, in view of the Nuremberg decisions, such exploitation “was in violation of the laws and customs of war and consequently did not operate to transfer … title to the belligerent occupant.” Id. at 822.

111 2 G. Schwarzenberger, supra note 20, at 251. In a more general vein, Stone summarizes the power of an occupant as follows: In positive terms, and broadly stated, the Occupant's powers are (1) to continue orderly government, (2) to exercise control over and utilise the resources of the country so far as necessary for that purpose and to meet his own military needs. He may thus, under the latter head, apply its resources to his own military objects, claim services from the inhabitants, use, requisition, seize or destroy their property, within the limits of what is required for the army of occupation and the needs of the local population. J. Stone, supra note 89, at 697 (emphasis added).

112 Paragraph 364 of the United States Army Field Manual on the Law of Land Warfare provides as follows: The economy of an occupied country can only be required to bear the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be expected to bear.FM 27–10, supra note 90. The British Military Manual contains an almost identical provision. Great Britain, Manual of Military Law, supra note 20, at §526.

113 Israeli Memorandum, supra note 10, at 437.

114 N.Y. Times, supra note 6.

115 It is not clear whether the reference in the language quoted above to “occupied areas” was intended to include areas other than the Sinai Peninsula. Since there is no basis in the Nuremberg decisions for using expenses incurred in connection with the occupation of one area to justify additional economic exploitation of another, it will be assumed that the quoted language refers only to the costs of maintaining Israel Defense Forces in the Sinai Peninsula.

116 15 Ann. Dig. at 623.

117 Indeed, it has been reported that Israel wants the United States to pay the costs of moving its defense lines to whatever borders are established by an Egypt-Israel peace agreement. N.Y. Times, Mar. 8, 1978, at A-l, col. 1, A-6, col. 2.

118 In 1966 the Sinai Peninsula had a population of 130,000. 16 Encyclopediabritannica 779 (1974).

119 See Israel Information Center, Human Rights in the Administered Areas 11 (1976).

120 Israel will not release information on the type and size of its forces stationed in the Sinai Peninusla. One writer, however, has described the Israeli ground forces that were available in the Sinai when Egyptian forces crossed the Suez Canal in the October 1973 war: On the ground, facing the Egyptian army immediately at the waterline, were the strong points of the Barlev line manned by 456 troops and 7 tanks. Behind them, within a distance of 30 miles were three armored brigades with 276tanks … , artillery units with 48 field guns, plus a few thousand infantry. Safran, , Trial by Ordeal: The Yarn Kippur War, October 1973, 2 Int. Security 133, 142 (1977)CrossRefGoogle Scholar. In 1973, the Israeli Army was estimated to have a total strength of310,000 and to possess approximately 2,000 tanks and 570 major artillery pieces. Cordesman, How Much is Too Much? Armed Forces J. Int., Oct. 1977, at 32, 34.If these assessments are correct, it would appear that, at least in 1973, Israel did not assign a total of more than five to ten percent of its armed forces to the Sinai Peninsula.

121 Stauffer, , Israel?s Hold on Sinai: Tel Aviv Sees Another Reason to Keep Peninsula, Christian Science Monitor, Jan. 10, 1974, at 2, col. 1Google Scholar.

122 American Petroleum Institute, Basic Petroleum Data Book §4, Table 6 (1977).

123 Id.

124 U.S. Arms Control And Disarmament Agency, World Military Expenditures and Arms Transfers 1966–1975, at 27 (1977).

125 Israel's national budget for 1977, as released by the Bank of Israel, allocated approximately $44 million for civil defense and “administered areas.” Bank of Israel,Ministry of Finance, National Budget for 1977, at Table 2.1 (1977). Since this item is one of only two under the heading labeled “Defense” in this budget summary, it seems reasonable to assume that it includes all military expenditures that arise as a result of Israel's occupation of the administered areas. Even if this total amount were attributable solely to the Sinai occupation, it would be many years before occupationcosts would equal the value of the oil that has been taken.

126 15 Ann. Dig. at 622 (emphasis added). Cases decided since the Nuremberg judgments also have required that occupants comply with particular provisions of the Hague Regulations. E.g., Colorni v. Ministry of War, 17 I.L.R. 419 (Court of Cassation, Italy 1950) (Arts. 52 and 53 applied); French State v. Lemarchand, 15 Ann. Dig. 597 (Court of Appeal of Rouen, France 1948) (Art. 55 applied); Andersen v. Christensen and the State Committee for Small Allotments, 14 Ann. Dig. 275 (Western Appellate Court, Denmark 1947) (Art. 52 applied); Mortier v. Lauret, 14 Ann. Dig.274 (Court of Appeal of Rouen, France 1947) (Art. 53 applied). Indeed, in theBataafsche case, supra note 27, both the specific requirements of Article 53 regarding seizures and the Nuremberg principle were applied as restrictions independent of each other. See notes 28 and 110, supra.

Without exception, commentators writing after the Nuremberg judgments hold that in their economic exploitation of occupied territory occupants must abide by the specific restrictions set forth in the Hague Regulations. See, e.g., E. Castrén, supra note88, at 229–41; M. Greenspan, supra note 25, at 286–305; A. Mcnair & A. Watts,supra note 13, at 392–99; 2 G. Schwahzenbergeh, supra note 20, at 249–53, 259–307.

127 Dept. of State Memorandum, supra note 7, at 753.