Andrea Carcano, The Transformation of Occupied Territory in International Law

A debate has emerged in recent years about the legitimacy of ‘transformative occupation’.1 The context for this debate has been the occupation of Iraq, the transformative nature of which is explored in detail in Andrea Carcano’s thoughtful new book. Carcano’s book offers an indispensable detailed analysis of this occupation, placing it within a broad historical and theoretical context. The transformative occupation debate reflects the tension between what Gregory Fox calls the ‘conservationist’ principle of occupation2 on the one hand, which prohibits any altering of legal and political institutions in the occupied territory as stated in Article 43 of the Hague Regulations,3 and the need to provide for occupied populations on the other. Another evident tension is that between the goals of the law of occupation, which focus on the protection of the previous sovereign and/or of the local population, and the goals of the occupying states, centred upon their interest. The principles of the law of occupation seem to emphasize the conservationist principle: occupation does not confer title, should be maintained for the benefit of the local population and is temporary.4 Indeed, as Carcano notes, transformative occupation is the ‘antithesis of the model of occupation as administration and control of territories, as codified in the Hague Regulations’ (p 37).

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