about by armed conflicts and to respect and protect noncombatants and civilian objects in such conflicts. The resolution also urged that the Conference be brought to a successful conclusion in 1977.

Occupied Territories

Israeli-occupied Territories

Monroe Leigh, Legal Adviser of the Department of State, in a memorandum of law, dated October 1, 1976, discussed the issue of Israel's right to develop new oil fields in Sinai and the Gulf of Suez. The memorandum concluded that plans for oil development by Israel in Sinai and the Gulf of Suez, even if the latter area were "occupied territory," were contrary to international law. The text of Mr. Leigh's memorandum follows:

This memorandum addresses the question of Israel's right to develop new oil fields in Sinai and the Gulf of Suez.

The question is addressed in light of the following understanding of the Israeli legal position (which does not, necessarily, constitute the considered legal view of the Israeli Government): Oil in the ground is public immovable property subject to article 55 of the Hague Regulations of 1907. The Occupant has usufructory rights to such property. The law of usufruct, while prohibiting waste or excessive extraction, permits the reasonable operation of old wells and new. In fact, searching for and discovering new oil deposits is an enhancement of the land's value, and thus not prohibited waste. The Occupant may grant commercial concessions to develop and exploit new wells, but the absent sovereign may not do so during the occupation. There is a twelve mile territorial sea in the Gulf of Suez in which, at least out to the median line, where this is less than twelve miles from shore, the Occupant has the same rights of military occupation as on shore.

The memorandum concludes that Israel's oil development plans in Sinai and the Gulf of Suez are contrary to international law, even if the latter area were "occupied territory." An occupant's rights under international law do not include the right to develop a new oil field, to use the oil resources of occupied territory for the general benefit of the home economy or to grant oil concessions. Further. Israel must respect the oil concessions held by Amoco in the Gulf of Suez all of which are valid, whether granted before or after June 1967.

1. An occupier has those limited military rights regarding property set out in the Hague Regulations.

An occupier does not acquire the rights of a sovereign in occupied territory, but only those limited military rights allowed to him under the international law of belligerent occupation. Those rights with regard to property in occupied territory are spelled out in the Hague Regulations of 1907, which are still universally accepted as the codification of existing international law on the subject.2

2. The occupant's right to state-owned oil in the ground is that of a usufructuary under article 55 and does not include the right to open new oil fields.

Oil in the ground is classified as an "immovable" as are appurtenances to real estate generally.3 Under Egyptian law, it is public property of the state, although this would not preclude the creation of private rights regarding such oil through a concession granted by the sovereign. Publicists, courts and military manuals dealing with the law of land warfare treat the subject of immovable public property as regulated by article 55 of the Hague Regulations, which provides:

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

There is little in the negotiating history of this article to indicate just what its drafters meant by it, but rules of usufruct in civil law countries and of the common law analogue, life tenancy and waste, as well as international practice regarding public enemy property give the article definition. The right of a usufructuary is, literally, the right to use the fruits of the property-not the broader right of ownership. The civil law tradition generally recognizes a usufructuary's right to continue, at the previous rate of exploitation, to work mines that had already been opened by the owner at the time the usufruct began.7 The usufructuary may not open new mines and exploit them, even at a reasonable rate. This position is supported in common law countries by the prohibition of "waste" under a life tenancy. Under the doctrine, a life tenant ordinarily is not entitled to extract oil, gas or other minerals since that depletes the corpus or inheritance and, thus, constitutes waste. To continue working open mines or pits, however, is recognized as an exception to the prohibition, for, as Blackstone states, "it has now become the mere annual profit of the land."

8

While the majority rule appears to be that set out above, there are some more permissive exceptions; the German civil code, although somewhat obscure, seems to allow the usufructuary a freer hand than the French does to open new mines, as long as opening them does not change the economic dedication of the property and the exploitation is at a reasonable rate (Art. 1037). Even within the German tradition it is apparent that opening new mines (or wells) in areas where there has never before been mineral exploitation constitutes a change in the economic dedication of the land. Thus, even that most permissive rule would not appear to accord Israel the right to make oil fields of lands and waters that Egypt was not using for that purpose when the occupation began. Further, the German system provides safeguards which allow an owner to require that exploitation by a usufructuary follow either an agreed plan or one established by a court. These safeguards are not available in an occupation situation. Modified by being stripped of these safeguards, the German rule would provide less protection for property than any known civil law system. Such a modified and

novel rule cannot be deemed to represent the intended and proper meaning of article 55.

It should be noted that there are more restrictive regimes than the French which might be advanced with some justification as the proper rule, since they are more consistent with the basic duty of a usufructuary to preserve the property's capital. If any particular minority rule is to be applied it might logically be that of the Egyptian code, which is derived from the French, but differs in not providing for any usufructuary right to the minerals in the land. Its silence on the subject gives a more restrictive result than any of the other rules cited, since it is a reflection of the fact that mineral rights do not belong to the private landowner, but rather to the Egyptian state, and thus are not among the rights which a usufructuary of land can acquire in Egypt.

Equally important, the text of article 55 and the international practice under it indicate that the international law of usufruct under article 55 is at most as liberal as the law of usufruct under the French code and the law of waste in the common law system.

First, there is the emphasis of the text itself. The article says not only that the occupant must abide by the rules of usufruct, but independently of that obligation, it states that he “must safeguard the capital of these properties." Resources such as oil deposits. which are irreplaceable and have value only as they are consumed. cannot be used without impairing the capital of oil bearing land. While the French and similar codes, as well as the common law, have made an illogical compromise in considering the continued operation of existing wells as a permitted annual fruit or profit, the separate emphasis in article 55 on the occupant's duty to safeguard the capital of the property precludes any rule which provides ever less protection for that capital than the French or common law interpretations.

Second, the continued recognition of a usufructory right to operate existing mines is one which appears to be limited, at least in international law, by the requirement of exploitation at normal or preexisting levels." Taking consumables at the rate established previously might be viewed as taking a fruit or annual profit of the land; or from another perspective a prior rate might be viewed as a standard established by the owner himself regarding the conservation of the value, or capital, of the particular piece of land. Under either view, an occupant may not open wells in areas where none existed at the time the occupation began, since the prior or normal rate of exploitation was zero.

Finally, the attempt to exercise such a right as a belligerent occupant appears to be unprecedented in state practice.

Recognizing that the rules regarding public immovable property do not permit the occupant very much leeway with regard to the general public resources of occupied territory, despite the chronic shortages involved in modern economic mobilization, one leading writer states that the occupant's power over such property "is a mere incident of his status as the governing authority pro tempore. As such, his power is measured not by his own needs, but by the duty to maintain the integrity of the corpus."12 Article 55 thus plainly enacts at least a normally restrictive version of usufructory

rights, and, at minimum, precludes an occupant from opening and exploiting new oil fields and wells.

3. Even if new oil fields could be opened, the oil could not be taken for the broad purposes apparently contemplated.

Certainly there would be no basis for arguing that an occupant had greater freedom regarding the use or disposition of oil found in the ground (public immovable property) than of oil he found already lifted (public movable property). Writing before World War II with regard to the right of an occupant to public movable property under article 53, one leading authority noted that the occupant did not receive unlimited title to seized chattels and put in doubt the right of the occupant to sell seized chattels abroad to enrich the occupant's home treasury. Since the war, the rule has been stated with greater certainty, in light of the post-war legal decisions.13

Under the interpretation of the Hague Regulations set out in the resolution of the London International Law Conference in 1943 and the decisions in the trials of German war criminals, property can be taken only for purposes of the occupation itself, whatever rubric of the regulations the taking is under.14

The law, in this regard, appears to be properly stated by Stone: "In positive terms and broadly stated, the Occupant's powers are (1) to continue orderly government, (2) to exercise control over and utilize 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. But beyond the limits of quality, quantum and duration thus implied, the Occupant's acts will not have legal effect. . . "15 (emphasis supplied)

While there is authority for a broader proposition that "munitions de guerre" may be taken for use in military operations outside occupied territory and in other theaters of war,16 this narrow exception, if it is valid, would not be relevant to the treatment of public immovable property under article 55. Further, it appears doubtful at best, that in the present stage of the IsraeliEgyptian conflict, the taking of any significant amounts of property out of occupied territory, even "munitions de guerre", could be justified by the requirements of any relevant military operations.

These limitations are entirely consistent with, if not compelled by, the limited purposes for which force may be used under the U.N. Charter. It is difficult to justify a rule that the use of force in self-defense may, during any resulting occupation, give the occupant rights against the enemy sovereign not related to the. original self-defense requirement, or not required as concomitants of the occupation itself and the occupant's duties. A rule holding out the prospect of acquiring unrestricted access to and use of resources and raw materials, would constitute an incentive to territorial occupation by a country needing raw materials, and a disincentive to withdrawal.

It has not been disputed that the purpose of the activity in the Sinai and Gulf of Suez is the acquisition of oil to meet the needs of Israel generally. The activity could not credibly be justified by reference to the needs of the occupied territory or the army of occupation itself. Further, the arrangements presumably would involve commercial trade outside occupied territory, which would exceed the purposes for which the occupant is permitted to take enemy property. Such trade would also necessitate the transfer of title, though, under the authorities cited above, the occupant would, arguably, not acquire adequate title for such transfer. 4. An occupant is not entitled to grant a commercial concession to exploit oil fields.

A further difficulty with the contemplated development of oil fields in Sinai and the Gulf of Suez is that it is reportedly being carried out through commercial concessions which Israel claims it has the power, as occupant, to grant. However, this aspect, as well, appears to be without precedent in international practice.17

A concession for the exploitation of mineral resources in Egyptian territory is a legislative act, under the Egyptian legal system. Article 43 of the 1907 Hague Regulations requires the occupier "[to respect] unless absolutely prevented, the laws in force in the country." The legislative and regulatory right which an occupier has under international law is founded upon his duty to ensure public order and safety and his right to pursue his own military ends.18 It may accordingly be argued that the occupier may not enact new legislation in this area, since it would be difficult to argue that the occupier was "absolutely prevented” from respecting the existing laws on mineral exploitation or that a new "law" on such exploitation flowed from his duties or military needs.

This reasoning appears to underlie the statement of one leading authority that "[n]ormally only the legitimate sovereign would seem to have the power to grant concessions." While this writer also argues the desirability of the occupant having such a power, "in the interest of the native population," it is clear that such considerations are non-existent in the Sinai and the Gulf of Suez.19

The terms and purposes of the activities under the Israeli concession would be impermissible under international law. involving, as they presumably do, transfer of title which the occupant arguably does not have, the commercial trading in the extracted petroleum and its use for purposes beyond the needs of the occupied territory and army of occupation.

5. The taking of oil in certain areas might violate the private property rights held by a U.S. company

Israeli authorized oil exploitation in the waters of the Gulf of Suez would violate the concession rights held by Amoco.19a Only a small area of the Gulf east of the median line (the area claimed by Israel) is not subject to Amoco concessions.

First, the status of Israel as an occupying power in the Gulf of Suez is open to doubt, not only [because of the timing and circumstances of its establishment of a presence in the Gulf, but also because of the fact that the waters of the Gulf, except for a three mile strip out from the low-water line, constitute high seas.20