Why is effective control is important to prove occupation of state territory?

After various alterations and changes, the definition of occupation was finally established in
Article 42 of the Hague Regulations which says that the “Territory is considered occupied when
it is actually placed under the authority of the hostile army. The occupation extends only to the
territory where such authority has been established and can be exercised”.

The importance of the notion of ‘effective control’ to prove the Occupation

In order to identify the elements of the Occupation test, one must first examine the concept of
effective control, which is of the utmost importance when it comes to the notion of occupation
and has been associated with it for a long time. The phrase ‘effective control’ is not found in
treaty law; it reflects a notion developed over time in the legal discourse pertaining to occupation
to describe the circumstances and conditions for determining the existence of a state of
occupation.

In this regard, it is self-evident that occupation implies some degree of control by hostile troops
over a foreign territory or parts thereof in lieu of the territorial sovereign. However, the
application of occupation law will not be triggered only when foreign forces exert full control
over foreign territory but also when they exercise a lesser level of authority. It has often been
argued that occupation is a question of degree. As Yoram Dinstein points out,

effective control is a conditio sine qua non of belligerent occupation. But defining
the exact amount of control deemed objectively ‘effective’ is an imponderable
problem. In particular, the optimal size of the army of occupation and the manner
of its deployment cannot be determined a priori. Circumstances vary from one
occupied territory to another, and the degree of effective control required may
depend on the terrain, the density of the population, and a slew of other
considerations.

In any case, it is the effectiveness of the control exercised by the foreign forces that set off the
application of occupation law. Indeed, effective control will permit foreign troops to enforce the
rights and duties granted to them by occupation law.

This assertion is corroborated by the legal literature, which has established the notion of effective
control as a central element in the issue of occupation. A careful examination of the international
jurisprudence, and of the content of some military manuals, also supports the assertion that the
notion of effective control is at the heart of the concept of occupation and should be the starting
point for devising a test for determining the existence of an occupation. In this regard, ‘effective
control’ is an essential concept as it substantiates and specifies the notion of ‘authority’ lying at
the heart of the definition of occupation contained in Article 42 of the Hague Regulations. As
such, effective control is the main characteristic of occupation as, under IHL, there cannot be the
occupation of territory without effective control exercised therein by hostile foreign forces.