Resumen de The laws of occupation and commercial law reform in Occupied Territories: a rejoinder to Eyal Benvenisti

Alejandro Carballo Leyda

• I thank Professor Benvenisti for his response to my article and hope that this discussion will be helpful and fruitful. Nevertheless, I concur with Pictet that Article 43 of the 1907 Hague Regulations1 �imposes obligations of a general nature on the Occupying Power�, while Article 64 of the IV Geneva Convention2 contains a specific exception for penal legislation.3 Therefore, Article 43 HR still remains the applicable norm regarding commercial law reform in occupied territories.

  Space constraints restrict my rejoinder to the following comments:

  1. The interpretation given by the UK Attorney-General in his leaked Confidential Note of March 2003 was also confirmed by the then Legal Adviser to the Foreign and Commonwealth Office (FCO), Michael Wood.4 Wood�s statement (applying Article 43 HR to �commercial� reforms and Article 64 GCIV to �penal laws�) was in similar terms to (i) a Memorandum sent in April 2003 by the FCO to the Committee on Foreign Affairs of the House of Commons,5 and (ii) a note sent by Wood in February 2003 to the then Foreign Secretary, Jack Straw, who stated in January 2011 that �his understanding of the UK�s responsibilities, as an occupying power� was based on such a note.6 In fact, British Military Manual of 2004, section 11.57, almost literally transcribes paragraph (2) of Article 64 GCIV only in relation to �criminal law�, while it still keeps applying Article 43 HR to the modification of existing law or promulgation of new law (section 11.25, in particular, footnotes 51 and 53).

  Similarly, the Spanish Manual of the Law of Armed Conflicts,7 when commenting on the legislative powers of occupants, distinguishes between Section 2.7.b (1), regarding local laws in general (to which Article 43 HR applies), and 2.7.b(2), regarding criminal law in particular