‘국제점령법’ 체계에서 1907년 헤이그 육전규칙 제43조의 실효성

Article 43 of the 1907 Hague Regulations has been regarded as the most important provision in the international law of occupation. It articulates that the occupant “shall take all the measures in his power to restore, and ensure, as far as possible, public order and civil life, while respecting, unless absolutely prevented, the laws in force” in the occupied territory. According to Article 43 of the 1907 Hague Regulations, there are two obligations imposed on the occupant (or the occupying power): the obligation to restore and ensure public order and civil life, and the obligation to respect local legislation in force in the occupied territory. However, there has been much controversy, over the last 100 years, on how to interpret Article 43 of the 1907 Hague Regulations. It is also likely that the tension between the two obligations has led to the weakening of the normativity or effectiveness of Article 43 of the 1907 Hague Regulations in some cases of international armed conflicts. Moreover, the adoption of the 1949 Fourth Geneva Convention, the development of international human rights law and the existence of the resolutions of the Security Council of the United Nations (UNSC) have refrained from fully discharging the obligation to respect local legislation in force dictated by Article 43 of the 1907 Hague Regulations. Although the effectiveness of Article 43 of the 1907 Hague Regulations seems to be reduced, it is, however, noted that the 1949 Fourth Geneva Convention, international human rights law and the resolutions of the UNSC do not replace but ‘complement’ Article 43 of the 1907 Hague Regulations. It is also dubious whether the concept of International Territorial Administration (ITA) may exclude the application of Article 43 of the 1907 Hague Regulations, because ITA can be regarded as an example of occupation. Therefore, there still exists the limitation on the competence of the occupant or the occupying power to modify or suspend local legislation in the occupied territory. Since the Second World War, the structure of the international law of occupation has become somewhat complicated because of the 1949 Fourth Geneva Convention, international human rights law and the actions of the UNSC. However, Article 43 of the 1907 Hague Regulations is still the most important provision in the international law of occupation, because there is no customary international law to replace the provision. Therefore, in the case of occupation, Article 43 of the 1907 Hague Regulations should be the starting-point for discussing or solving occupation-related problems.