1 Regarding Israel's oil prospecting attempts in Sinai and the Gulf conducted largely unsuccessfully until 1971, see 27 Israel Economist 291 (Sept. 1971).

2 Regarding the urgency felt in Israel to find and to tap whatever oil fields might exist in Israel or in the administered areas and regarding unsubstantiated reports in mid- 1976 that oil had been found in the Gulf of Suez, see 32 Israel Economist 8 (June, 1976).

3 29 The Middle East 81 (March, 1977).

4 N.Y. Times, April 4, 1977, at 4.

5 Id.Sept. 8, 1976, at 5. The oil rig involved belonged to GUPCO, a company jointly owned by the Egyptian General Petroleum Corporation and the American Oil Company (Amoco).

6 Id.Feb. 18, 1977, at 1 and April 4, 1977, at 4.

7 For concise treatments of the law of belligerent occupation, see 2 Oppenheim, International Law, 403-17, 432-57, (7th ed., h. Lauterpacht, 1952); j. Stone, legal Controls of armed conflict 651-733 (1959); m. Mcdoucal&f. Feliciano, Law and minimum world public order 732-833 (1961); and Gerson, War Conquered Territory and Military Occupation in the Contemporary International Legal System, 18Harv. Int. L. J. 525 (1977).

8 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907. 36 Stat. 2277, TS No. 539.

9 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949. 3 UST 3515, TIAS No. 3365, 75 UNTS 287 (hereinafter referred to as the Geneva Civilians Convention). Israel and Egypt are both signatories to the Convention, their only reservations extending to their respective use of the Red Star of David and Red Crescent. SeeJ. Toman, Index Of The Geneva Conventions For The Protection Of War Victims, 12 August 1949, at 189-94 (1973).

10 This view is consistent with the cardinal principle inherent in the Hague Regulations and Geneva Convention that sovereignty does not vest in the occupant but rather remains in a state of abeyance pending reversion to the ousted power. Article 43 and Article 47 of the Hague Regulations and Geneva Convention respectively seek to protect the ousted power's reversionary interest by requiring the occupant to preserve the laws and institutions of the occupied region existing ante bellum unless absolutely prevented by reasons of public welfare or military necessity. SeeD. A. Graber, THE Development Of The Law Of Belligerent Occupation, 1863-1914, At 93-109 (1949); J. B. Scott, The Hague Peace Conferences Of 1899 And 1907, At 525 (1908); E. H. Feilchenfeld, The International Economic Law Of Belligerent Occupation, 817 (1942); Dept. Of The Army, Law Of Land Warfare, Para. 358 (FM27-10, 1956); British Manual Of Military Law, Pt. III , para. 510 (1958). Regarding the difficult question posed in preservation of the status quo ante bellum where the existing order is unjust, violating fundamental human rights, see Baty, The Relation of Invaders to Insurgents,36 YALE L. J. 966, 978 (1928).

11 Regarding Israel's position on the applicability of the Geneva Convention and, by implication, that of the Hague Regulations, see Shamgar, The Observance of International Law in the Administered Territories1 Israel Yb On Human Rights 262 (1971) and discussion in Gerson, Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank,14 HARV. INT. L. J. 1, 2-3, 39-40 (1973). Recent affirmation of Israel's position is found in statements before the UN Special Political Committee November 12, and 17, 1976. UN Docs. A/SPC/SR. 19, at 4 and A/SPC/SR. 22, at 11 (1976).

12 Id.

13 Seethe Lighthouse case, [1934] PCIJ, ser. A/B, No. 62, at 52; Nuremberg Military Tribunal, United States v. Wilhelm List, et. al,14 Un War Crimes Commission, Law Reports Of Trials Of War Criminals 56 (1948); Lauterpacht, The Limits of the Operation of the Law of War,30 Brit. Yb. Int. L. 206, 213 (1953). For adoption of principle in U.S. federal decision, see Aboitiz v. Price, 95 F. Supp. 602 (D. Utah 1951) holding Japanese wartime enactments to have continuing legal validity notwithstanding the aggressive nature of the war waged. See,however, Wright, , The Outlawry of War and the Law of War, 47 AJIL 365, 367 (1953)CrossRefGoogle Scholar; F. Seyersted, United Nations Forces In The Law Of Peace And War 224 (1966). See alsoextended discussion of applicability of lawful-unlawful dichotomy to occupants relative to both managerial and acquisition rights in Gerson, supranote 7.

14 SeeArt. 52, Vienna Convention on the Law of Treaties, UN Doc. A / C O N F . 3 9 / 27 (1969), 63 AJIL 875 (1969), 8 ILM 679 (1969); Higgins, The June War: The United Nations and Legal Background,3 J. Contemp. HIST. 253, 271 (1968).

15 SeeU.S. Dept. State, Memorandum of Law on Israel's Right to Develop New CHI Fields in Sinai and the Gulf of Suez,dated Oct. 1, 1976, 16 ILM 733 (1977). The Memorandum takes the position that: The concept of belligerent occupation is exclusively one of the law of land warfare. While the notion of occupation of the territorial sea may be somewhat problematic, it is clear that high seas are not subject to belligerent occupation and that neither party to the Egyptian-Israeli dispute at present enjoys rights to belligerent activity on the high seas. Id.749. Substantiation in support of this proposition is not offered in the U.S. memorandum. Egypt claims a twelve-mile territorial sea in the Gulf. The United States and Israel refuse recognition to any claims beyond three miles. This study concurs with the U.S. position that the non territorial sea is by its very nature not subject to belligerent occupation and limits its inquiry to the occupation of the territorial sea.

16 Art. 53, Hague Regulations: All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.

17 Seethe Navigation of the Danube case, 1 Un R. Int Arb. Awards 97 (1927); The Lighthouse case, 12 id.161 (1956).

18 SeeOppenheim, supranote 7, at 434.

19 Heydte, Von de, Discovery, Symbolic Annexation and Virtual Effectiveness in International Law, 29 AJIL 463 (1935)Google Scholar.

20 In addition to the prohibition provided by Special Conventions, it is especially forbidden … (g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war; …

21 “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.“

22 Art. 53, Hague Regulations.

23 Art. 55, Hague Regulations.

24 Id.

25 Professor Georg Schwarzenberger states that even prior to the advent of Article 147 of Geneva Convention IV, the same prohibition against wanton appropriation or destruction of enemy property could be extrapolated by application of the standard of civilization inherent in the laws of war. See2 G. Schwarzenberger, International Law 78, 109-27, 254 (1968).

26 Regarding classification of crude oil in the ground as “immovable” property for the purpose of application of Article 55 of the Hague Regulations, seeN. V. de Bataafsche Petroleum Maatschappij v. War Damage Commission, 23 I. L. R. 810 (Court of Appeal, Singapore, 1956), notedin 71 HARV. L. REV. 568 (1958).

27 Mcdougal&Feliciano, supranote 7, at 812-13.

28 Seethe Guano case, 15 Un R. Int. Arb. Awards 125, 295, 367 (1901). Although this case arose before adoption of the Hague Regulations and although the decision makes no reference to Article 55 in the 1899 draft version of the Hague Regulations, the statement of the law the arbitrators considered as binding was that in relation to immovable enemy public property the occupying power is, as Article 55 of the Hague Regulations specifies, in the position of a usufructuary. The Tribunal made it clear that the occupying power (Chile) was permitted in its role of usufructuary to extract mineral resources, providing appropriate care to preserve the corpus of the property was exercised. As illustrative of the text writers supporting this position, SeeM. GREENSPAN, THE MODERN LAW OF LAND WARFARE 287-90 (1959); STONE, supranote 7, at 714-15.

29 The Farben case, (United States v. Krauch et al, 1948), 10 UN WAR CRIMES Commission, Law Reports Of Trials Of War Criminals 45-50; The Krupp Trial (United States v. Krupp von Bohlen et al., 1948) id.130-70.

30 International Petroleum Encyclopedia 84 (1970).

31 Dept. of State Memorandum, supranote 15, at 736-43. Seealso especially Cummings, Oil Resources in Occupied Arab Territories Under the Law of Belligerent Occupation,9 J. Of Int. L.&Economics 533, (1974) which the State Department memorandum relies upon and cites with approval. Cummings’ conclusion is that: Because of the unanimity in the Roman law, civil law, and common law on the issue of exploiting mineral resources under the concept of “usufruct” (as used in Article 55 of the Hague Regulations) it can be concluded that an occupying power does not have a right to exploit oil from an area … when oil resources were not exploited prior to the commencement of occupation. Id.565.

32 SeeComment, The Open Mine Doctrine,8 Houston L. Rev. 753 (1971); Woodward, The Open Mine Doctrine in Oil and Gas Cases,35 Texas L. Rev. 538 (1957).

33 See2 W. Blackstone, Commentaries On The Law Of England: To open the land to search for mines of metal, coal, etc. is waste;for that is a detriment to the inheritance;but if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use; for it is now become the mere annual profit of the land. Ch. 18 at 284 (emphasis added). Seeaffirming the centrality to the “open mine” doctrine of wastefulness and injury to the corpus of the land inherent in opening new mines, 2 E. Coke, Fdrst Institute Of The Laws Of England, Sect. 54b (J. Thomas ed. 1836). See alsoOhio Oil Co. v. Doughetee, 240 111. 361, 88 N.E. 818 (1909) where the court reaches the conclusion that a tenant may not engage in the exploitation of oil other than through the means of oil wells existing at the assumption of his tenancy on the grounds that there is a well established rule that the opening of new mines upon land by a tenant amount to “waste.” This case and others as well as commentary thereon are cited in Cummings, supranote 31, at 563-65.

34 Dept. of State Memorandum, supranote 15, at 746. 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.

35 Israeli economists estimate that at least 200 days of significant oil extraction will be needed to cover the $2.5 million production costs involved in the planned drilling project. Fifty percent of these costs are, however, to be picked up by the unnamed “foreign parties to the drilling operations. One reason for involvement of a foreign firm was specifically to allow for splitting the loss involved in forfeiture of the fields if doing so becomes politically expedient. See32 Israel Economist 8 (June 1976). Contrast the above figures with the fact that in 1974 Israel's estimated oil needs were in the order of eight million tons which at the then going rate of $16 a barrel or $120 a ton would amount to a little more than $1,000 million per annum. More than half of Israel's projected oil needs in 1974 came from Abu Rhodeis, saving Israel roughly $500 million in oil costs. Jerusalem Post, Jan. 18, 1974, at 4. (Magazine).