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Suspending Sovereignty: Reassessing the Interlocking of Occupation, Failed and Fragile State, Responsibility to Protect, and International Trusteeship (Lessons from Lebanon)

Published online by Cambridge University Press:  19 March 2012

Noemi Gal-Or
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Abstract

This Paper argues that the traditional international legal discourse on occupation fails to reflect the condition of international relations, and their governability by international law, at the turn of the 21st century. This Paper suggests re-conceptualizing the concept of occupation by linking it to the discourse of failed and fragile states and the responsibility to protect.

A contemporaneous understanding of occupation needs to reflect its transforming relationship to sovereignty. Occupation represents a state of interference with the external aspect of sovereignty, which ultimately infringes also on the state of internal sovereignty. In contemporary world politics, occupation arises also from a chain of successive situations interfering with sovereignty wherein internal sovereignty becomes “vitiated” (“failed and fragile state”), and creates a condition conducive to interference with external sovereignty. The outcome of this order of impingements on sovereignty represents a state wherein sovereignty was suspended.

The condition of suspended sovereignty triggers the new norm of the responsibility to protect. This Paper submits that re-vitalization of the concepts of leasehold and trusteeship offers an elegant, perhaps face-saving outlet, hence potentially constructive approach to empower the failed and fragile state in re-establishing its sovereign plenary control over its territory and ending an occupation-like situation.

The analysis of the Lebanese situation is an example of the arguments raised in this Paper and does not fit the traditional post World War II (WWII) occupation legal mould for neither belligerent nor non-belligerent occupation. The complex inter-state relationship linking Lebanon-Syria-Iran-Israel, and which is intricately interlaced in a state-to-non-state actor (NSA) web as played out in the relationship between Israel-South Lebanon Army on the one hand, and between Iran, Syria and Lebanon-Hezbollah on the other hand, serve to illustrate the new 21st century conditions. These conditions press for an updating of the traditional understanding of occupation.

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Articles
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Israel Law Review , Volume 41 , Issue 1-2: Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context , 2008 , pp. 302 - 330
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 Mugerwa, Nkambo, Subjects of International Law, in Manual of Public International Law 253 (Sǿrensen, Max ed., 1968)Google Scholar.

2 Id.; Ruzié, David, Droit International Public (2ème Partie, 1975)Google Scholar.

3 This approach requires identifying and classifying conditions interfering with internal sovereignty, and attracting the violation of external sovereignty, as well as identifying the succession and overlapping of stages in the process. This Paper represents the beginning of such an analytical enterprise. “Suspension,” rather than “transgression,” more accurately describes the situation of an ongoing and evolving process whereby sovereign competences have ceased performing their functions effectively, regularly, and in an “orderly” fashion. Transgression suggests a causal relationship that emphasizes intervention and action; whereas suspension is neutral as to the cause and effect, more nuanced, and encompasses a wider spectrum, e.g., action, passivity, drastic alteration but also protracted process and adjustment. Perhaps the definition relating to music is the most accurate: “The action of deferring the progression of a part in harmony by prolonging a note of a chord into the following chord, usually producing a temporary discord; an insistence of this, a discord so produced …” The Shorter Oxford English Dictionary 2094 (3d ed. 1968)Google Scholar (emphasis added N.G.-O.). I will not elaborate on the relevance of consent in municipal law due to lack of space.

4 These modes are extremely varied and include, for instance, the particular state of sovereignty of Hong Kong prior to and following the 1984 Sino-British Joint Declaration; Cyprus, especially since 1974; Haiti, Kosovo (Serbia), Somalia (beginning with the 1990s until the writing of this Paper); and Lebanon since the mid 1970s, to mention a few examples. More examples will be addressed herein.

5 See treatment of this concept in Canada Department of Foreign Affairs and International Trade at http://geo.international.gc.ca/cip-pic/current_discussions/fragile-resources-en.aspx (last visited Jan. 28, 2008).

6 First conceived in the International Commission on Intervention and State Sovereignty 2001, The Responsibility to Protect, International Commission on Intervention and State Sovereignty (Dec. 2001), available at http://www.iciss.ca/report-en.asp. See Section III B infra for a discussion on R2P.

7 See also The Hague Convention No. II, Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, July 29, 1899, 187 Consol. T.S. 429 (1900); The 1907 Hague Convention No. IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907 and its annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 2306, 205 Consol. T. S. 277 (1907) [hereinafter Hague Convention IV & Hague Regulations].

8 The Ethiopian and Eritrean mingling in Somalia's affairs; US Warns Eritrea, Ethiopia on Somalia, ABC News Online, July 30 2006, available at http://www.abc.net.au/news/newsitems/200607/s1700601.htm.

9 Independent Panel on Canada's Future Role in Afghanistan, Report to the Canada Department of Foreign Affairs ad International Trade (Jan. 2008), available at http://www.canada-afghanistan.gc.ca/cip-pic/afghanistan/library/docs-en.asp; Yusufzai, Rahimullah, Waziristan: Bin Laden's Hiding Place?, BBC News, Mar. 4, 2004Google Scholar, available at http://news.bbc.co.uk/2/hi/south_asia/3532841.stm.

10 Kosovo's unsettled status and Serbia's lack of effective control over the area; McLaughlin, Daniel, A Declaration of Independence—or War?, Dec. 7, 2007Google Scholar, The Independent, available at http://www.independent.co.uk/news/europe/a-declaration-of-independence--or-w-763560.html. This situation has changed since Kosovo's declaration of independence of February 17, 2008, and the accumulating international recognition, e.g. by the Government of Canada on March 18, 2008. available at http://news.gc.ca/web/view/en/index.jsp?articleid=386299.

11 Canada Department of Foreign Affairs and International Trade, Reconstructing Haiti at http://geo.international.gc.ca/cip-pic/current_discussions/reconstructinghaiti-en.aspx (last visited May 27, 2008).

12 Conscious of the current debate (discussed later herein), I prefer to use “concept” rather than “norm” to the R2P.

13 Press Release, Axworthy Launches International Commission on Intervention and State Sovereignty, available at http://www.iciss.ca/press1-en.asp (last visited Jan. 28, 2008).

14 International Commission on Intervention and State Sovereignty, supra note 6.

15 The High-level Panel on Threats, Challenges and Change, Executive Summary, ¶ 203, U.N. Doc. A/59/565, (Dec. 2, 2004), available at www.un.org/secureworld [hereinafter A More Secure World]. The report specifies the following:

We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.

Id. at ¶ 203. Reaffirmed in S.C. Res. 1674, U.N. Doc. S/RES/1674 (Apr. 28, 2006) Arguably, “serious violations” of international humanitarian law is a very broad characterization.

16 Id. at 4.

17 But explicit nonetheless, cf. Alvarez, José E., Notes from the President, 23 ASIL Newsletter 1 (Summer 2007)Google Scholar.

18 A More Secure World, supra note 15, at ¶ 199.

19 Id. ¶ 201.

20 Id. While it does not yet elaborate on other possible instances of “avoidable catastrophe” in and from “shattered states,” it envisages such possibility by stating that “to redress catastrophic internal wrongs [the international community] is prepared to declare that the situation is a ‘threat to international peace and security’ [which] is not especially difficult when breaches of international law are involved.” Id. ¶ 202.

21 The report reflects the international community's indecisiveness concerning the available and appropriate means to tackle such a situation:

There has been, as a result, a long-standing argument in the international community between those who insist on a “right to intervene” in man-made catastrophes and those who argue that the Security Council, for all its powers under Chapter VII to “maintain or restore international security,” is prohibited from authorizing any coercive action against sovereign States for whatever happens within their borders.

Id.

While some interpret this debate as driven by advocates of a revival of hegemonic/imperialist designs of international law on the one hand (for this comment I am indebted to an anonymous reviewer), it can also be read as leaving the door open for a wider interpretation of the means available to address the threat, namely within the ”spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies,” on the other hand. Id. Certainly, the U.N. authorized foreign military intervention at the contemporary stage of legal development excludes pre-emptive action. Alvarez attributes precisely such intention to the U.S. protagonists of the R2P: “R2P treats sovereignty as more hindrance than protection and the U.N. Charter less as sovereignty's guarantor than the guarantor of the rights of individuals.” Alvarez, supra note 17, at 12. Intervention is permissible only in situations of international armed conflict or post bellum, e.g., peacekeeping, peace-building but also in new post 9/11 borderline situations as the Afghanistan intervention mode suggests.

Not coincidentally, this matches well the general thrust of the report's discussion of the R2P: It is open-ended, foreseeing—even endorsing—the development of international law. If this is so, then the concept of R2P, which is still in its infancy, may also benefit from other legal opportunities made available by the concept of suspension of sovereignty.

22 This should absolutely not be confused with what Alvarez refers to as imperial driven “conditional sovereignty” (Alvarez, supra note 17, at 11).

23 Formerly referred to in the U.N. Charter as self-government and independence.

24 Lebanon's seven-point plan's suggestion to place the Shab'a Farms under United Nations jurisdiction pending a permanent delineation of the boundary more than hints at such possibility. S.C. Res. 392, ¶ 62, U.N. Doc. S/RES/392 (2007); Report of the Secretary-General on the Implementation of Security Council Resolution 1701 (2006), 10, S.C. Res. 147, U.N. Doc. S/2007/147 (Mar. 14, 2007) see chapter “G. Delineation of Borders”.

25 Belligerent occupation is normally considered a situation where the direct occupant (of the occupied population's territory) is a state, e.g., Germany following World War II, or Israel's occupation of foreign territories following June 1967. Alternatively, a situation of non-international armed conflict, where land comes under the control of the warring parties, is not de jure qualified as occupation, even when effective control is established.

26 Also characteristic of the Somalia case, see supra note 8.

27 Reflected in Article 43 of the 1907 Hague Regulations, see Benvenisti, Eyal, The International Law of Occupation 27, 30 (2nd ed. 2004)Google Scholar. See also Harris, Grant T., The Era of Multilateral Occupation, 24 Berkeley J. Int'l L. 3 (2006)Google Scholar.

28 They crystallized, among others, in the Hague Convention (IV), supra note 7.

29 The Lieber Code instructing the conduct of the U.S. forces in the American Civil War is considered a chief foundational source of this shift. See Harris, supra note 27, at 4. For post WWII developments see, ICRC. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention]. In an effort to further institutionalize the law of occupation beyond declaratory customary international law, the drafters of the Articles 47and 64 et seq. of the Fourth Geneva Convention recognized the temporality of occupation in relation to sovereignty and the correlative limitations on the control by the occupant. This is complemented by other relevant provisions see, e.g., Articles 9 and 11 and see also Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, art. 5, Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol I].

Most recently, the US Army/Marine Corps Counterinsurgency Field Manual of 2007 has put security for civilians as a priority preceding the destruction of the enemy. United States Army and United States Marme Corps, U.S. Army/Marine Counterinsurgency Field Mnual (2007) [hereinafter U.S. Army]Marine Counterinsurgency Field Manual]. See also Fund for Peace, The Bosphorus Consensus Declaration (2007)Google Scholar.

30 See also Benvenisti, supra note 27, at 98-99.

31 Id. at 5. For effective control see also Gross, Aeyal M., The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation, 19 Lieden J. Int'l L. 1–48 (2006)Google Scholar; Shany, Yuval, Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement, Y.B. Int'l Human. Rts. L. (forthcoming 2008)Google Scholar.

32 Benvenisti, supra note 27, at 5.

33 With the exception of the Israeli occupation after the 1967 war, all other occupants after World War II refrained from resorting to The Hague Regulations or the Fourth Geneva Convention as the source of their authority or as a guide to their actions. The propensity to avoid the regime of occupation is particularly noticeable in the various occupations of the 1970s and early 1980s. These occupations, the international reaction to them, and other international developments during this era, have greatly complicated the law of occupation.

Id. at 180.

Recent occupants did not view themselves as occupants and, for reasons discussed above, preferred to confer responsibility on local governments they established. As a result, occupants—except for Israel with regard to the territories occupied in 1967—did not have to struggle with the adaptation of the law of occupation to the contemporary challenges of administration. Thus, for example, aside from the interpretation of Article 43 of the Hague Regulations by Israeli institutions, no other state practice with regards to this basic article exists after World War II.

Id. at 182, cf. also 189-90.

This observation has been put to test following the recent 2003 invasion of Iraq by the U.S. led “Coalition of the Willing.” While the U.S. and British positions on Iraq's post bellum situation and pre-establishment of the fledgling Iraqi government are framed within the formal law of occupation, the extent to which this stance is indeed reflected in deeds and compliance, is debatable. Harris refers to a political “New Model” of multilateral occupation which deviates from the former's emphasis on basic humanitarian provisions, and favors nation-building, the latter not yet forming a part of the body of occupation law. Harris supra note 27, at 11. The U.S. Army/Marine Counterinsurgency Field Manual 2007 (supra note 29) may signal a change of course.

34 Id. at 107. Another recent example for the challenge in applying the law of occupation is the public opinion campaign just launched by the NATO forces in Afghanistan releasing videos of insurgents while in breach of international humanitarian legal obligations. Kring, Paul, Halt Detainee Transfers Now, Canada Urged, The Globe & Mail, Nov. 13, 2007, A15Google Scholar; Freeman, Alan, Canada Violating Geneva Treaty, MPs Say, The Globe & Mail, Nov. 17, 2007, A20Google Scholar; Leblanc, Daniel, Opposition Attacks Child-Detainee Transfers, The Globe & Mail, Nov. 29, 2007 A, A6Google Scholar.

35 Dinstein, Yoram, Schmitt, Michael N., & Garraway, Charles H.B., The Manual on the Law of Non-International Armed Conflict with Commentary (2006)Google Scholar.

36 Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

37 Dinstein, Yoram, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, (Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series 3, Fall 2004)Google Scholar.

38 This, for instance, has been the argument of entitlement inherent in struggles for self-determination, which have come to be considered an inter-national type of conflict: “The claim of the lawful struggle for self-determination … coupled with the notion of illegal ‘foreign occupation’ could seem to import major qualifications, indeed, a revolution, in the law of occupation.” Benvenisti, supra note 27, at 187.

39 For example:

In accordance with the second part of Article 43, the Occupying Power must respect “les lois en vigueu” (the laws in force) in the occupied territory, except in cases of “empêchement absolu.” Respect means that—as spelled out in the Brussels Declaration—the Occupying Power has to maintain the laws in force and not modify, suspend or replace them with its own legislation. The term “les lois” appears to encompass only promulgated laws (whether basic or trivial; national or municipal; civil or criminal; substantive or procedural). Yet, there is no indication that the framers of the Hague regulations intended to exclude from the ambit of Article 43 “common law,” tribal law (especially of indigenous and nomadic people) or other forms of domestic customary law.

Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, supra note 37, at 4.

Also, consider the following:

5. Protocol II includes language, political or other opinion, and national or social origin as prohibited bases of adverse distinction. These criteria are drawn from the law of human rights. Whereas it is clear that there is an increasing overlap of human rights law and the law of armed conflict, particularly in non-international armed conflict, the extent to which customary international law encompasses these expanded grounds is unclear in the latter context (bearing in mind that a non-international armed conflict usually involves a political dispute or clash between ethnic groups).

Dinstein, Schmitt, & Garraway, supra note 35, at 15.

Moreover, in reliance on the International Criminal Tribunal for Yugoslavia (ICTY), Prosecutor v. Tadic:

The extension of rules applicable in international armed conflict “has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.” Therefore, one should be cautious whenever applying provisions—or interpretations thereof—intended for application in international armed conflict to situations of noninternational armed conflict (see paragraph 7 of the commentary accompanying Rule 1.2.3).

Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, supra note 37, at 21.

And furthermore:

6. Since a non-international armed conflict may consist in part of riot situations, it is important to bear in mind that the use of riot control agents to control a riot is perfectly permissible. Admittedly, it is not always easy to determine when a riot has ended and “above the threshold” fighting has started (see discussion of the threshold issue in the commentary accompanying Rule 1.1).

Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, supra note 37, at 34.

40 This relates also to Harris' (supra note 27) concern with multilateral occupation and nation-building.

41 All reflected also in variations of the FFS. For international legal personality see Gal-Or, Noemi, A Reassessment of the International Wrong: Self-Help Remedies for International Wrongs & Countermeasures in Humanitarian Law, (forthcoming) based on a lecture at the 35th Annual CCIL Conference Proceedings, 2006Google Scholar; Zooming In and Out: The Tree and the Forest in the Justice Approach to Terrorism, Adapting North American Security Relations to Terrorist Threats, J. Conflict Stud. (forthcoming 2008); Kissling, Claudia, The Evolution of CSOs'Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations, in Civil Society Participation and Global Governance: A Cure for the Democratic Deficit? ch. 2 (Steffek, Jens et al. eds., 2007)Google Scholar; Nijman, Janne E., Paul Ricoeur and International Law: Beyond ‘The End of the Subject’. Towards a Reconceptualization of International Legal Personality, 20 Lelden J. Int'l L. 25–64 (2007)CrossRefGoogle Scholar. The evolving status of the individual, natural and legal, person, the NSA, and the international organization (IO) as subjects of international law is leaving no doubt that a reform of international law is practically under way. It is imperative that it includes also the law of occupation.

42 Post 9/11 Afghanistan and Iraq, among others, also serve as such examples. For lack of space, I will defer this discussion for another time.

43 Kedourie, Elie, Ethnicity, Majority, and Minority in the Middle East, in Ethnicity, Pluralism and The State in the Middle East (Esman, Milton J. & Rabinovich, Itamar eds., 1988)Google Scholar.

As it emerged into independence at the end of World War II, Lebanon included areas … [with] large numbers of Sunni and Shi'ite Muslims who felt no particular attachment to the Lebanese state. To hold all these heterogeneous elements, the Lebanese constitution of 1926 included elaborate provisions … the so-called confessional system. But after independence the system broke down quickly. In 1958, and more seriously after 1975, civil war dealt a powerful and perhaps mortal blow to the confessional system. And there can be no doubt that the mobilization of the Sunni and Shi'ite citizens of Lebanon by outside powers—the United Arab Republic, Syria, and latterly the Islamic Republic of Iran—was the main cause of the Lebanese Civil war … [and] destroyed the balance of communities in Lebanon.

Thus … in Lebanon the European vocabulary of politics and the modern European concepts of the state have visibly led not to greater welfare and security but to insecurity and destruction for the inhabitants …

(Id. at 31.)

44 Since 1990, when Syria sent forces to Lebanon to end the civil war there which broke out in 1975 and until the withdrawal of its armed forces from Lebanon in 2005, following the February 2005 assassination of Lebanese Prime Minister Hariri, see Syria ‘Starts Lebanon Pullback,’ BBC News, (Mar. 8, 2005), available at http://news.bbc.co.uk/2/hi/middle_east/4331045.stm; Biography: Mr. Rafic Hariri, available at http://www.rhariri.com/default.aspx (The Official Website Former Prime Minister of Lebanon 1992-1998, 2000–2004).

45 Which will discuss in infra Part III.

46 To what extent Syria's occupation, or Iranian via Hezbollah's control, over parts of Lebanon amount to non-belligerent occupation or occupation, respectively, is of course the point that I am attempting to elucidate in this Paper. While attracted by the Lebanese civil war, foreign presence on Lebanese soil has not been related to a Lebanese war of national liberation. The control that the PLO exerted over areas in Lebanon during the 1970s and early 1980s, and up to the present—in the refugee camps, was related to the Palestinian struggle for statehood. Accounts of the challenges to the Lebanese state building endeavor are attributed to ethnic and religious tensions and strategic visions of its former mandatory “protector” France, rather than to a 19th century notion of nationbuilding or 20th century struggle of national liberation.

Greater Lebanon was created by France in 1920.… The French decision to establish greater Lebanon was made in consequence of Maronite pressure and for want of a reliable alternative. Many Frenchmen favoured a united Syria with a small autonomous Lebanon on the Ottoman model.… The political system of Lebanon which developed between 1943 and 1958 depended upon three principles … all [of which] were called into question and the consequence was the virtual destruction of the state.

Yapp, M.E., The Near East Since the First World War, 105, 265 (1991)Google Scholar. Rabinovich observes that “[t]he idea of a Lebanese entity, rooted in a historic tradition and serving as bridge between East and West, though apparently secular, was perceived, certainly by its opponents, as Christian in orientation. Indeed, the Lebanonism of the Kata'ib, despite much elaboration and sophistication, was ultimately Maronite-Christian.” Itamar Rabinovich, Arab Political Parties: Ideology and Ethnicity, in Esman & Rabinovich, supra note 43, at 165.

47 Karam, Zeina, Lebanon Has Record of Assassinations, Washingtonpost.com, Nov. 24, 2006Google Scholar, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/11/24/AR2006112400269.html.

48 Convention Concernant les Lois et Coutumes de la Guerre sur Terre, 1907, 205 Consol T.S. 277, 295 (C. Parry ed., 1980) cited in Dinstein, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, supra note 37, at 2.

49 The term “suspension” implies effective previous sovereign title. It remains open for debate whether the essence of sovereignty reflects pre-colonial legal situations in non-European polities. This is an issue too complex to address here for it requires the comparative study of, at least, the European, Communist, and Development doctrines of international law, and discussion of the concept of terra nullius. I am indebted to an anonymous reviewer for raising this issue.

50 Suffice it here to mention that there are several international legal arrangements ranging on a continuum, and representing, albeit indecisively, situations wherein sovereign competences have been suspended, even relinquished. The protectorate and the vassal relationship tend to the latter engagements, which at face value, purport to be consensual (the protected state having requested the protection of the powerful state), see Dinstein, Yoram, The Non-State International Law, The Non-State International Law 65–68 (1970)Google Scholar [in Hebrew] and Mugerwa, supra note 1, at 252, or a non-belligerent occupation. Yoram Dinstein, The Beginning and the End of Belligerent Occupation, Oral Presentation at Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context: An International Conference, Jerusalem & Tel Aviv (June 5-7, 2007) (personal notes, available with author).

51 Article 22 of the Covenant of the League of Nations. For instance, Iraq and Jordan were considered to be at an advanced stage of independence for their internal and external relations proved to possess “a measure of international personality even before they attained full independence.” Mugerwa, supra note 1, at 264. I will not elaborate on the three categories for lack of space. I will therefore forego the discussion of status of occupied territories that formed previously part of a sovereign state but were “torn” from it, only to be placed under mandate administration, and subsequently handed over to U.N. trusteeship management.

52 In the case of territories “lost” by Turkey and Germany, which were defeated in an armed conflict (WWI), the transfer of territorial powers was settled by means of a peace treaty—and assigned to several states, notably Britain, France, Belgium, and Japan. Abdullah El Erian, The Legal Organization of International Society, in Sǿrenesen, supra note 1, at 61-62, and Dinstein, The Beginning and the End of Belligerent Occupation, supra note 50, at 70. Here the doctrine of the mandate system according to which the mandated territories were not yet fully (capable) of independence gets somewhat “fudged.” Specifically, already prior to the end of WWI, Britain and France divided the formerly Ottoman territories in what became known as the controversial Sykes-Pico Note (1916), a secret agreement partitioning the Ottoman Empire between these two powers (and which contradicted some assurance given by T.E. Lawrence “of Arabian” to the Arabs when mobilizing them to the revolt against the Turks). The Sykes-Picot Agreement, May 15 & 16, 1916, Jerusalem Media and Communication Centre (JMCC), available at http://www.jmcc.org/documents/sykespicot.htm (last visited May 27, 2008). Palmer, Alan, Dictionary of Modern History 1789–1945 (1983)Google Scholar. For instance, the border between Syria and Lebanon was subsequently defined in yet another agreement between Britain and France in 1923, and ratified by the League of Nations in May 1935. Sarbaro, Haim, The Legitimacy Issue of the Lebanese Claim to the ‘Shebaa Farms” in Relation to the International Border (2006)Google Scholar.

53 El Erian, supra note 52, at 63. The mandatory state's administration of the mandated territory was regulated by resolutions of the League Council, agreed upon with each Mandatory, the latter required to report annually to the League Council. A Permanent Mandates Commission consisting of independent experts examined the reports and advised the Council respectively. Inhabitants of the mandated territories were legally entitled to petition the League, and disputes regarding the mandates were justiciable before the Permanent Court of International Justice. Consequently, “the mandatory or trust power exercised a de facto sovereign power over the territory. But the exact nature of the de jure position has never been clear and has given rise to a number of conflicting theories.” Mugerwa, supra note 1, at 264.

54 These shortcomings suffered also from lack of clarity in the transition of the mandate system from the extinct League of Nations to the trusteeship system of the United Nations. Dinstein, The Beginning and the End of Belligerent Occupation, supra note 50, at 74.

55 See, e.g., rights and duties of occupant, of ousted government, transition into a state of occupation and from occupation to post occupation, consent of the population under occupation, etc.

56 Michael Strauss, Is Transdisciplinary Dialogue Possible? Translating International Relations and International Law to Each Other, presented at International Political Science: New Theoretical & Regional Perspectives. IPSA International Conference. Concordia University, Montreal (Quebec), April 30-May 2, 2008

The notion of sovereignty has also defied a uniform definition. Its essential components parallel those of a state itself—territory, population and government—but as many as 12 distinct and overlapping meanings of sovereignty have been identified as the term applies to states, and Fowler and Bunck admit that the meaning “varies according to the issue that is being addressed or the question that is being asked.

For a thorough review of the gradual historical evolution of the concept of sovereignty see Danwall, Hanna, Bay, Guantanamo, A Legal ‘Black Hole’? (2004) (unpublished Master Thesis, Faculty of Law, University of Lund)Google Scholar.

I will elaborate on the doctrine of sovereignty in a future broader version of this Paper. Meanwhile, see also Gal-Or, Noemi, Towards A Transdisciplinary Discourse on the Link of Trade and Investment, International Law, and Global Governance: Is a New Terminology Needed? (Submitted for publication, 2006)Google Scholar (on file with author). Several other relevant publications (among a significantly more voluminous selection) addressing the dilemma of interpreting sovereignty, including the tension between the notion of sovereignty and its constituent competences are Nyers, Peter, The Accidental Citizen: Acts of Sovereignty and (un)Making Citizenship, 35 Eco. & Soc. 22–41 (2006)Google Scholar; Steiger, Heinhard, Remarks Concerning the Normative Structure of a Modern World Order in A Historical Perspective, in Legal Scholarship in International and Comparative Law 75–101 (Gross, Thomas ed., 2003)Google Scholar; Voruz, Véronique, Sovereignty, Power and Resistance, 15 Int'l J. Semiotics L. 231 (2002)Google Scholar; Morin, Jean-Jacques, Droit et souveraineté à l'aube du XXI siècle, 25 Can. YB Int'l L. 47 (1987)Google Scholar; Kingsbury, Benedict, Sovereignty and Inequality, 9 Eur. J. Int'l L. 599 (1998)Google Scholar. Most recently, Stahn, Carsten reviewed this conceptual dilemma in Responsibility to Protect: Political Rhetoric or Emerging Legal Norm? 101 Am. J. Int'l L. 99 (2007)Google Scholar.

57 Where the “modern occupant” (Benvenisti, supra note 27, at 147) runs to the assistance of a presumably aid requesting state; or, where the occupant exercises effective control in the foreign state but eschews admitting to it (most likely for political reasons), consequently avoiding (or preventing) the application of the rules of occupation. Id.

58 Not only continuous media reports (most recently, MacKinnon, Marc, In Lebanon, Something's Got to Give, The Globe and Mail, Nov. 23, 2007, at A14)Google Scholar and scholarly writings (a detailed and encompassing book developed from his doctoral thesis, see Saad-Ghorayeb, Amal, Hisbu'llah: Politics and Religion (2002))Google Scholar identified the Hezbollah among the important and crucial actors, at least in Southern Lebanon. The U.N. as well has recently reached this conclusion in Report of the Secretary-General on the Implementation of S.C. Res. 1701, U.N. Doc. S/RES/730 (June 28, 2007).

59 Saad-Ghorayeb, supra note 58.

60 With the exception of the recent events in the Nahr el-Bared camp north of Tripoli, and the apprehension surrounding the possibility of a renewed civil war. See Lebanon Army Takes Control of Camp after Battle, Reuters, Sept. 2, 2007, available at http://www.reuters.com/article/topNews/idUSL0261343920070902.

61 MacKinnon, supra note 58.

62 Instinctively, the particular version of occupation suggested here represents essentially a special condition within the FFS situation. However, I am not excluding the possibility that further and comparative research will find otherwise. Arguably, the condition in the Waziristan region of Pakistan, Darfur in Sudan and the spillover into nearby Chad and Somalia are just a few examples which lend support to a thorough consideration of the proposition of a legal concept of suspended sovereignty. Although each of these examples represents a unique case, and neither is identical to the Lebanese scenario, all share a mix of situations falling into the legal void between an international non-armed conflict and non-international non-armed conflict.

63 Bredal, Mats, Reconciling the Irreconcilable?, in A More Secure World: Our Shared Responsibility, Behind The Headlines—Report of the Un Secretary-General's High-Level on Threats, Challenges and Change 7 (2005)Google Scholar.

By what criteria does one identify a state “sliding towards collapse”? More difficult still, one imagines, will be to persuade a state thus identified to accept the ‘invitation to attend’ a meeting of the commission [proposed UN Peacebuilding Commission]. Even so, the rationale behind and the analysis that accompanies the proposal are convincing and well supported: “failed states” or “states in distress” clearly pose profound challenges to the UN membership as a whole.

“This loss of capacity of the traditional individual state of the 21st century to perform its functions for the people is not only a loss of factual power, might, strength and means. It is a structural loss and therefore it concerns all states, not only the ‘failing state’ …” Steiger, supra note 56, at 98 (emphasis added). The challenges have been chronicled in the works of the U.N., beginning with the listing in the International Commission on Intervention and State Sovereignty, supra note 6, specifically the protection of citizens from man-made catastrophes such as mass murder, rape, starvation, i.e., humanitarian disasters and which are often related to other catastrophes (e.g., man-made environmental degradation, poverty, etc.) identified as necessary ingredients of human insecurity.

64 Danwall, supra note 56, at 23.

Traditional international law provides five modes of acquisition of territorial sovereignty; [sic] occupation, prescription, accretion, cession and conquest. These are divided into original and derivative modes. An original acquisition is obtained through occupation or accretion and involves no transfer of sovereignty from a previous sovereign. The remaining modes are derivative and involve a transfer of sovereignty from a previous sovereign.

65 Id.

66 Id. at 24. See Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928) cited in Id.

67 Id.

68 Id. at 25.

69 Not to NSAs or other political entities and international organizations.

70 Danwall, supra note 56, at 26.

71 Cited in id. at 27.

72 Rather than mutually complementing, e.g., in case of a treaty representing disposition of power over territory. For the various ways available to divide sovereign competences see Strauss, Guantanamo Bay and the Evolution of International Leases and Servitudes. supra note 56, at 6.

73 Arguably, also general principles of international law. See Apple, G. James, What are General Principles of International Law? 2 Int'l Judicial Monitor (July/Aug 2007)Google Scholar, available at http://www.judicialmonitor.org/current/generalprinciples.html.

74 For this point generally, and “derogation” of sovereignty specifically see Brownlie, Ian, Principle of Public International Law (6th ed. 2003)Google Scholar cited in Danwall, supra note 56.

75 In analyzing the Hezbollah, Saad-Ghorayeb says:

Another factor explaining the Shi'ites' non-resistance and the non-materialisation of the Islamic Resistance during the 1978 invasion [by Israel] was that the Islamic Revolution in Iran had not yet taken place. Thus, the Shi'ites reacted militantly to the 1982 invasion, after the Revolution's occurrence in 1979.… But in the final analysis, there is much doubt as to whether Hizbu'lla, the political movement-cum-party, would have emerged had it not originated as a conglomeration of armed Islamic groups resisting Israel.

See Saad-Ghorayeb, supra note 58, at 10. More specifically:

[i]nsofar as many of its cadres were drawn from Amal, the origins of the party do not actually lie in it. In point of fact, the fountainhead of Hizbu'llah was not located in Lebanon but in the religious academies of Najaf in Iraq where hundreds of young Lebanese Shi'ites studied in the early 1960s and 1970s [prior to the Iraq-Iran war and the Iranian revolution] under the tutelage of radical Shi'ite ideologues such as Kumayni and Muhammad Baqir as-Sadr.

Id. at 13. This influence was practically and physically reinforced with “Iran's dispatch of 1,500 Revolutionary Guards (Pasdaran) to the Biqa’ in the wake of Israel's 1982 invasion, which played a direct role in the genesis of Hizbu'llah.” Id. at 14. Saad-Ghorayeb chronicles the enhancement of the Hezbollah by Iran with the assistance of Syria throughout his work.

76 Stahn, supra note 56, at 99.

77 Id.

78 A More Secure World, supra note 15.

79 In Larger Freedom: Towards Development, Security and Human Rights for All, U.N. Doc. A/59/2005, ¶¶ 16-22 (2005), available at http://www.un.org/largerfreedom/contents.htm, (last visited Jan. 28, 2008).

80 G.A. Res. 60/1, ¶¶ 138-39, U.N. GAOR 60th Sess., U.N. Doc. A/RES/60/1 (Oct. 24, 2005) reprinted in Stahn, supra note 56, at 100.

81 Whether a normative transformation is, in fact, under way, is yet to be determined. “These findings suggest that something is wrong here. Either the concept of responsibility to protect is actually not so new and innovative as portrayed, or the qualification is wrong.” Stahn, supra note 56, at 102. I choose to refer to R2P as a norm in the making that may either crystallize, or dissipate. The I.C.J. interpretation in Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91 (Feb. 26) addresses state responsibility in matters pertaining to the realm of the R2P. While the case marks the first time that a U.N. member state has been tried for genocide, the I.C.J. takes care to avoid and prevent misunderstandings that may arise in connection with the new concept of R2P. Judge Rosalyn Higgins, President of the I.C.J., emphasized: “We have been concerned only with genocide—and, I may add, genocide in the legal sense of that term, not in the broad use of that term that is sometimes made.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Statement to the Press by H.E. Judge Rosalyn Higgins,” (Feb. 26, 2007), available at http://www.icj-cij.org/presscom/index.php?pr=1898&p1=6&p2=1&search=%22SearchBosnia+and+Herzegovina+v.+Serbia+and+Montenegro%22 (emphasis added N.G-O). In Serbia, where a NSA was involved and acted outside the purview of the sovereign, the I.C.J. limited its interpretation of the scope of state responsibility in the case of genocide to the responsibility to prevent and the responsibility to punish, to the exclusion of the commission of the crime of genocide itself:

If the VRS [the army of the Republika Srpska] was an organ of Serbia and Montenegro (as that country was then called), then in law the Respondent would be responsible for the VRS' actions. The Respondent would also be responsible in law if the VRS was acting on the instructions of, or under the direction or control of, the Respondent. In the light of the information available to it, the Court has found that it was not established that the massacres at Srebrenica were committed by organs of the Respondent. It has also not been established that those massacres were committed on the instructions, or under the direction of the Respondent, nor that the Respondent exercised effective control over the operations in the course of which those massacres were perpetrated. This is the test in international law. In fact, all indications are that the decision to kill the adult male population of the Bosnian Muslim community in Srebrenica was taken by some members of the VRS Main Staff, without instructions from or effective control by the FRY.… The Court has found that the Respondent could, and should, have acted to prevent the genocide, but did not. The Respondent did nothing to prevent the Srebrenica massacres despite the political, military and financial links between its authorities and the Republika Srpska and the VRS. It therefore violated the obligation in the Genocide Convention to prevent genocide.

Id. These Serbia findings will have to be woven into the future debate on the R2P. They challenge the “legislators” of international law to explore approaches by which the legal lacuna in the gap separating the responsibility of the state from the responsibility of the NSA, must be filled. I am suggesting that the notion of suspended sovereignty might serve this purpose.

82 “[W]hile sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so …” A More Secure World, supra note 15, at 56 (emphasis added N.G.-O.).

83 Stahn, supra note 56, at 100-01.

84 Little if any resolution has been achieved with regard to state responsibility in a situation involving a threat to peace. International Law Association Report of the Seventy Second Conference, Toronto June 2006 (2006)Google Scholar (on file with author).

85 See Vilmer, Jean-Baptiste Jeangène, Humanitarian Intervention and Disinterestedness, 19 Peace Rev. J. Soc. Just.Google Scholar

86 Whether lead by a single foreign state, an alliance of states, or an international organization.

87 Like sovereignty, the doctrine of jurisdiction is an indeterminate doctrine. Danwall, supra note 56, at 28.

88 Id.

89 See Stahn's description of relevant propositions, supra note 56, at 118-120.

90 I will elaborate on this, and specifically Articles 77(c) and 78, in a later broader version of this Paper. Suffice it here to point to the analysis by Stahn, who distinguishes—within R2P three relevant types of responsibility (in declining order of “firmness”) entrusted to the U.N. and transpiring from the four constitutive documents: The responsibility to prevent, to react, and to rebuild. Id. at 108-09.

91 Not excluding delegation of jurisdiction to regional organizations, e.g., NATO operations in Afghanistan, and on a case by case basis.

92 See, e.g., Sixteenth Delay for Lebanon Poll, AlJazeera.Net, Mar. 10, 2008, available at http://english.aljazeera.net/NR/exeres/2E6F7902-5D35-47FB-9BA3-BA421D1DB50D.htm.

93 Country Profile: Somalia, BBC News, Mar. 2, 2008, available at http://news.bbc.co.uk/2/hi/africa/country_profiles/1072592.stm.

94 Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions, U.N. Doc. S/2001/1154 (2001) (the Bonn Agreement).

95 Michael Strauss, The Viability of Territorial Leases in Resolving International Sovereignty Disputes, address to the Annual Conference of the Association of Borderland Studies (Apr. 14, 2007) (on file with author) see especially 1.

96 Danwall, supra note 56, at 40. Some examples are Cuba's Guantanamo Bay lease to the United States; China's 99-year lease of Hong Kong's New Territories to Great Britain, which ended in 1997; lease arrangements in the Israeli-Jordanian Peace Treaty of 1994; France's sovereign rights in the Pays Quint Septentrional (Quinto Real Norte), a small territory in Spain; and the United States Canal Zone lease from Panama, which ended in 1999. For more details see Gal-Or, Noemi & Strauss, Michael, International Leases as a Legal Instrument of Conflict Resolution: The Shab'a Farms as a Proto-type for the Resolution of Territorial Conflicts, Touro Int'l L. Rev. (forthcoming 2008)Google Scholar.

97 Trusteeship Council, Sixty-Fourth Session, 1st Meeting, Oct. 20, 2004.

98 Which has been considered in the context of international environmental governance. See Eco-Logic: U.N. Reform—Restructuring for Global Governance, July/August 1997, available at http://www.iahf.com/world/un-refm.html. The Trusteeship Council formally suspended operations on November 1, 1994, and is technically “non-existent.” Index to the Proceedings of the Trusteeship Council, United Nations Dag Hammerskjöld Library, UN-I-QUE (UN Info Quest), R00691.

99 O'Connell, Mary Ellen, The Counter-Reformation of the Security Council, 1 J. Int'l L. & Relations 7 (2006)Google Scholar, especially at 7.

100 Strauss, supra note 95, at 1.

101 Albeit at a status, and with competences, different from that of the state.

102 At present, jurisdictional indeterminacy is plaguing both the institution of inter-state leasing and U.N. Charter, ch. VII, operations. On the one hand, the Guantanamo Bay experience is an example for jurisdictional indeterminacy where a bilateral lease and the leased territory are used to enable the lessee (U.S.) to by-pass application of its own domestic jurisdiction and international commitments. On the other hand, the NATO operation in Afghanistan serves to show that where the international community has established its extra-territorial jurisdiction (U.N. Charter, ch. VII) it has failed, in some respects, to measure up to the requisite standards of the rule of law. NATO forces' jurisdiction which must co-exist with the Afghan domestic jurisdiction, e.g. in the treatment of detainees handed over by NATO forces to the Afghan government, is a growing concern for it renders the extra-territorial jurisdiction ineffective. A specific example is the recent debate regarding Canada's role in the violations of rights of detainees transferred to the Afghan authorities, and the “dead end” situation Canada (as well as other NATO members operating in Afghanistan) faces in its actual ability to comply with both the Third and Fourth Geneva Conventions. See Report Raises Red Flag for Governments Bound by Geneva Conventions, The Globe and Mail, Apr. 25, 2007, at A12Google Scholar.

103 See letter of July 18, 2006 by the late Major Hess-von Kruedener, Infantry Officer with the Princess Patricia's Canadian Light Infantry, of the Canadian Forces on U.N. Mission Truce and Supervision Organization—UNTSO. A Canadian Soldier's Report from South Lebanon, CTV.CA News, available at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060718/mideast_lebanon-UN-060716/20060718/ (last visited Jan. 28, 2008).

104 I.e., expanded occupation as argued earlier herein.

105 The status of NSAs is no doubt intricately connected to this Paper's discussion of occupation and trusteeship. This is however beyond the scope of the present Paper which, at this stage, contends with exploring and proposing an innovative general framework to new challenges.

106 “Lease-like” since the lessor (or guarantor of the lease) in such case is not the sovereign having legal title to the territory.

107 The principal elements of the lease would be clearly defined when entering a lease agreement. For more detail see Strauss, Michael, The Viability of Territorial Leases in Resolving International Sovereignty Dispute. A Comparative Study (unpublished Ph.D. dissertation, Centre d'Etudes Diplomatiques et Stratégiques, 2006)Google Scholar, at 34. I will not elaborate here on the parallels between private and public international law due to lack of space.

108 Id. at 3.