The Dynamic Law of Occupation: Inaugurating International Thematic Constitutionalism

Law, by its nature is not static, but dynamic. This creates questions of interpretation of documents or institutional arrangements that have been shaped or taken place hundreds of years ago or under different legal and factual circumstances. In U.S. constitutional law, this discussion has been framed as the “living constitution” debate. Could there also be an equivalent “living constitution” debate in international law? The answer appears to be yes.

The U.N. Charter is largely viewed as an international constitution. Moreover, on account of the views held by various international judicial organs, international documents are subject to an evolutionary interpretation. The Charter is a “living” constitution, in essence introducing a “living international law” debate. This is reinforced by voices in international theory calling for international law’s “functional” reading. This functional element is nothing more than a re-baptized dynamic approach to the international legal framework.

Such an approach is sometimes called for by the exigencies of international developments. In a highly decentralized international community, this “living international law” debate faces the danger of losing its vigor. This debate must be included in a more general, systemic framework. Detailing how these dynamic interpretational endeavors have to take place in order not to end up being arbitrary and norm-destructive.

This holds a particular importance in international law fields which have traditionally appeared to be highly positivist. It is these fields, where change is bound to meet hurdles and where the incorporation of new elements is not self-evident, that provide the best indicator of if and how the living international law continues to respire. The law of occupation is such a field. It has been traditionally more reserved and reluctant to flexibility. Two recent cases seem to portray the opposite; both of them involve prolonged occupations in the Middle East. The present note will analyze how they aspire to influence the law of occupation, with human dignity concerns being posed as the outmost limit of any dynamic interpretation endeavors

Moreover, the fact that human dignity serves as a guiding principle and ultimate limit in an international legal field not prone to change, awards a modulating role to the notion. International law is interpreted and shaped under its lens, the same way human dignity appears as a guiding principle in domestic constitutional orders. Thus, the dynamic approach of the law of occupation signals the dawn of international thematic constitutionalism.