The Right to Education in Occupied Territories: Making More Room for Human Rights in Occupation Law

Abstract

This article explores the compatibilities and tensions between the human right to education and occupation law. In 2004, the International Court of Justice (ICJ) issued an advisory opinion stating that Occupying Powers must extend their international human rights treaty obligations to the people in the territories they occupy. This finding reaffirmed what many human rights and occupation law scholars and judicial and quasi-judicial bodies have long claimed. While occupation law and human rights law are largely compatible tensions between the two can arise however. This is not surprising given the basic premises that each body of law is based upon. While occupation law largely works to restrict the occupant from tampering with the laws and institutions of the occupied territory, there are significant portions of human rights law that work hard to press states to amend or change laws and develop infrastructure to accommodate the welfare of their populations. This tension is not merely theoretical. It has been the case since at least World War I that occupants have taken an interest in making changes to the education of youth and educational institutions in the territory they control. Relying primarily on the core obligations of the right to education, this study looks at the extraterritorial and positive human rights obligations that occupants have with regard to the primary education of children inside an occupied territory. It also sets out an approach that helps mediate the areas where the two are less than compatible. The views expressed in this article are those of the author and do not necessarily reflect those of the Open Society Justice Initiative.