Human Rights, Positive Obligations, and Armed Conflict: Implementing the Right to Education in Occupied Territories

Abstract

AbstractIn three cases, the International Court of Justice (ICJ) has held that States must apply their human rights treaty obligations extraterritorially during times of occupation. International human rights law and international humanitarian law (IHL), under which occupation law exists, were not constructed in formal consultation with one another. But their ability to co-exist is logical enough, with human rights law emerging from, and IHL expanding after, World War II with the similar aim of committing governments to protect the most basic notions of humanity. Tensions between the two regimes do, however, exist. Occupation law largely works to restrict Occupying Powers from tampering with the laws and institutions of the occupied territory, whereas significant portions of human rights law press States to amend or change laws and develop infrastructure to accommodate the welfare of the population under their control. With a focus on the positive human rights obligations contained within the right to education, this article looks at the compatibility of these two regimes, points out tensions, and proposes ways for easing their co-existence.