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Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation

Published online by Cambridge University Press:  27 February 2017

Michael J. Dennis*
Affiliation:
U.S. Department of State

Extract

Are obligations assumed by states under international human rights treaties applicable extraterritorially during periods of armed conflict and military occupation? This was one of the issues addressed by the International Court of Justice (ICJ) in its advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court indicated that the obligations assumed by Israel under the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESC), and the Convention on the Rights of the Child (CROC) applied in the occupied territories and that the construction of the security barrier constituted “breaches” by Israel of various of its obligations under these instruments.

Type
Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory
Copyright
Copyright © American Society of International Law 2004

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References

1 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004)Google Scholar [hereinafter Advisory Opinion].

2 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR].

3 Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3 [hereinafter CROC].

4 Advisory Opinion, supra note 1, paras. 134, 137.

5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, para. 25 (July 8)Google Scholar [hereinafter Nuclear Weapons].

6 Id., para. 34. The Court further stated that “whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.” Id., para. 25. For further discussions of the human rights aspects of the opinion, see Louise, Doswald- Beck, International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, Int’L Rev. Red Cross, No. 316, Feb. 1997, at 35, 5051 Google Scholar; Greenwood, Christopher, The Advisory Opinion on Nuclear Weapons and the Contribution of the International Court to International Humanitarian Law, Int’L Rev. Red Cross, NO. 316, Feb. 1997, at 65, 6869 Google Scholar; Michael, J. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, 91 AJIL 417,42123 (1997)Google Scholar; Watkin, Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AJIL 1 (2004)Google Scholar.

7 Pictet, Jean, Humanitarian Law and Protection of War Victims 15 (1975)Google Scholar; see also Draper, G. I. A. D. , Humanitarian Law and Human Rights, 1979 Acta Juridica 193, 205 Google Scholar; Meyrowitz, Henri, Le Droit de la guerre et les droits de l’homme, 88 Revue de Droit Public et de la Science Politique en France Et à L’etranger 1095, 1105(1972)Google Scholar.

8 Schindler, Dietrich, Human Rights and Humanitarian Law: Interrelationships of the Laws, 31 Am. U. L. Rev. 935, 94142 (1982)Google Scholar; see also Esther, Rosalind Cohen, Human Rights in the Israeli-Occupied Territories, 1967- 1982, at 9 (1985)Google Scholar; Robertson, A. H. , Human Rights in the World 17484 (1972)Google Scholar; Greenwood, Christopher, Rights at the FrontierProtecting the Individual in Time of War, in Law at the Centre: The Institute of Advanced Legal Studies at Fifty 277, 27891 (1999)Google Scholar; Stephens, Dale, Human Rights and Armed ConflictThe Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, 4 Yale Hum. Rts. & Dev. L.J. 1, 23 (2001)Google Scholar.

9 Schindler, supra note 8, at 940; see also Greenwood, supra note 8, at 283-93; Meron, Theodor, The Humanization of Humanitarian Law, 94 AJIL 239, 24041 (2000)Google Scholar; Roberts, Adam, Prolonged Military Occupation: The Israeli- Occupied Territories Since 1967, 84 AJIL 44, 72 -74 (1990)Google Scholar.

10 See Kellenberger, Jakob, Official Statement of ICRC: Protection Through Complementarity of die Law (Sept. 6, 2003)Google Scholar,available at <http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpUst74/D75203C53C3FB78CC1256DA300427813>.

11 Comm’n on Human Rights [CHR] Res. 1991/67 (Mar. 6) (emphasis added); accord GA Res. 45/170, para. 1 (Dec. 18,1990). The Security Council, however, only reaffirmed Iraq’s responsibility under international humanitarian law, including the Fourth Geneva Convention. See SC Res. 666 (Sept. 13, 1990); SC Res. 674 (Oct. 29,1990).

12 CHR Res. 2003/84 (Apr. 25) (emphasis added).

13 SC Res. 1511 (Oct. 16, 2003); SC Res. 1546 (June 8, 2004). Earlier, in Resolution 1483 (May 22, 2003), the Security Council, acting under Chapter VII of the Charter, called upon “all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.”

14 See, e.g., GA Res. 2443 (XXII) (Dec. 19, 1968); GA Res. 2546 (XXIV) (Dec. 11, 1969); GA Res. 2727 (XXV) (Dec. 15, 1970). A link between human rights and humanitarian law had been established at the International Conference on Human Rights convened in 1968. In Resolution XXIII, adopted on May 12, 1968, and entitled “Human Rights in Armed Conflicts,” the conference considered that “peace is the underlying condition for the full observance of human rights and war is their negation” and that “even during the periods of armed conflict, humanitarian principles must prevail.” United Nations, Final act of the International Conference on Human Rights at 18, UN Doc. A/CONF.32/41, UN Sales No. E.68.XIV.2 (1968).

15 GA Res. ES-10/14 (Dec. 8, 2003). For the instruments concerned, see Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Fourth Geneva Convention]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12,1977,1125 UNTS 3 [hereinafter Protocol I]; Regulations Respecting the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18,1907,36 Stat. 2277,1 Bevans631 [hereinafter Hague Regulations]. Israel does not have an obligation to comply with the provisions of Additional Protocol I, since it has not ratified that instrument. The Court did not rely upon Protocol I in its opinion.

16 See, e.g., SC Res. 1435 (Sept. 24, 2002); SC Res. 1322 (Oct. 7, 2000); SC Res. 694 (May 24, 1991); SC Res. 607 (Jan. 5, 1988); SC Res. 478 (Aug. 20,1980). The United States maintains that Israel’s authority in the West Bank and Gaza is subject to the Hague Regulations of 1907 and the Fourth Geneva Convention. See U.S. Dep’t of State, Country Reports on Human Rights Practices: Israel and the Occupied Territories (Feb. 25, 2004), available at <http://www.state.gov/g/drl/rls/hrrpt/2003/27929.htm>.

17 See, for example, the following written statements submitted in the proceedings on the Advisory Opinion, supra note 1, and available online at <http://www.icj-cij.org>: Legal Memorandum Submitted by the Arab Republic of Egypt 36-38 (Jan. 2004); Statement Made by the State of Kuwait Regarding the Separating Wall in Process of Construction on the Occupied Palestinian Territory 1 (Jan. 30, 2004); Participation of the Kingdom of Morocco to the Procedure (Written Proceedings) Before the International Court of Justice 11-13 (n.d.); Written Statement Submitted by Namibia 1 (Jan. 30, 2004); Written Statement Submitted by the Government of the Republic of South Africa 21-23 (Jan. 30, 2004); A Memorandum Presented by the Syrian Arab Republic 13-14 (Jan. 30, 2004); Statement of the Government of the Sudan 2 (Jan. 30, 2004); Written Statement by the Swiss Confederation 9-11 (trans, n.d.); Written Statement of the Organisation of the Islamic Conference 10-12 (trans. Jan. 2004). The General Assembly resolution concerning the follow-up to the ICJ advisory opinion merely “recalls” the Covenants and the CROC in a preambular paragraph. GA Res. ES-10/15 (Aug. 2, 2004).

18 Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/CO/78/ISR, para. 19 (2003); Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, UN Doc. E/C.12/1/ Add.90, para. 24 (2003). Many materials of the CHR, as well as many of the documents of the international human rights treaty bodies discussed or cited in this essay, are available online at the Web site of the High Commissioner for Human Rights, available at <http://www.ohchr.org/english/bodies/index.htm>.

19 Advisory Opinion, supra note 1, paras. 109-10, 112, 136.

20 HCJ 2056/04, Beit Sourik Village Council v. Israel, 43 ILM 1099 (2004).

21 The Israeli Supreme Court did consider the fundamental rights of the local inhabitants in determining whether the “injury caused to the local inhabitants . . . stands in proper proportion to the security benefit from the security fence in its chosen route.” Id., para. 59. The Court stated that “[t]his judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants.” Id. It further determined that the route of certain portions of the fence “severely violates their right of property and their freedom of movement” and that “[t]hese injuries are not proportionate.” Id., paras. 60-61. The ICJ did not cite this aspect of the Court’s decision. For a more detailed discussion of the Israeli Supreme Court decision, see Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 1925 (2005)Google Scholar (in this Agora).

22 The two bodies of law may overlap in domestic armed conflict with respect to noncombatants since common Article 3 of the four Geneva Conventions and Additional Protocol II of 1977 apply to a state’s own nationals, as well as die international human rights treaties. Greenwood, supra note 8, at 288-91; Schindler, supra note 8, at 939.

23 ICCPR, supra note 2, Art. 2(1) (emphasis added).

24 Examples of individuals within the territory of a state but not subject to its jurisdiction include foreign diplomats or employees who are the subject of actions by international organizations. Individuals subject to the jurisdiction of a state but not within its territory include enemy aliens under the authority of occupation forces, as discussed below.

25 See, e.g., Schwelb, Egon, Some Aspects of the International Covenants on Human Rights of December 1966, in International Protection of Human Rights 103,109 (Asbjørn, Eide & August, Schoueds., 1968)Google Scholar; Nowak, Manfred, The Effectiveness of the International Covenant on Civil and Political Rights—Stocktaking After the First Eleven Sessions of the UN-Human Rights Committee, 1 Hum. Rts. L.J. 136, 156 (1980)Google Scholar.

26 See, e.g., Bothe, Michael, Karl, Josef Partsch, & Waldemar, A. Solf, New Rules for Victims of Armed Conflicts 635 (1982)Google Scholar; Schindler, supra note 8, at 939.

27 In the Advisory Opinion, supra note 1, para. 109, the ICJ cited the Human Rights Committee’s views in López Burgos v. Uruguay, Communication [Comm.] No. 52/1979, UN Doc. CCPR/C/13/D/52/1979 (1981); Celiberti de Casariego v. Uruguay, Comm. No. 56/1979, UN Doc. CCPR/C/13/D/56/1979 (1981); and Montero v. Uruguay, Comm. No. 106/1981, UN Doc. CCPR/C/OP/2, at 136 (1983/1990). Burgos and Celiberti involved the abduction of Uruguayan citizens by Uruguayan secret agents in Brazil and Argentina. The decisions are further discussed below. Montero involved the confiscation of a passport of a Uruguayan citizen by the Uruguayan consulate in Germany. See generally Nowak, Manfred, U.N. Covenant on Civil and Political Rights, CCPR Commentary 42-43, 68184 (1993)Google Scholar (pointing out that the Committee departed from the earlier views in the literature and “sought to correct the wording of this provision” in these cases; id. at 42).

28 Hum. Rts. Comm., General Comment No. 31, UN Doc. CCPR/C/21/Rev.l/Add.l3, para. 10 (2004) (emphasis added).

29 Advisory Opinion, supra note 1, para. 111.

30 Id., para. 110 (emphasis added) (quoting UN Docs. CCPR/C/79/Add.93, para. 10 (1998); UN Doc. CCPR/ CO/78/ISR, para. 11 (2003)).

31 The Court also mentions ICCPR Article 17(1) (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”). The Court did not specifically find that Israel had violated this provision. Advisory Opinion, supra note 1, para. 134.

32 The Court found in this regard that it “considers that the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become . . . tantamount to de facto annexation”(emphasis added). Id., para. 121. It also found that the establishment of settlements in the West Bank violated Article 49 of the Fourth Geneva Convention. Id., para. 120.

33 Id., para. 109.

34 European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 1, 213 UNTS 221.

35 UN Doc. E/CN.4/365, at 14 (1950) (U.S. proposal). The U.S. amendment added the words “territory and subject to its” before “jurisdiction” in Article 2(1).

36 UN Docs. E/CN.4/SR.193, at 13, 18 (1950), E/CN.4/SR.194, at 5, 9 (1950) (statements of Eleanor Roosevelt).

37 UN Doc. E/CN.4/SR.138, at 10 (1950).

38 For example, Rene Cassin proposed that the U.S. amendment be revised in the French text, replacing “et” with “ou,” so that states would not’ lose their jurisdiction over their foreign citizens.” UN Doc. E/CN.4/SR. 193, at 21 (1950). Similarly, Charles Malik (Lebanon) cited several possible cases where countries should guarantee rights to citizens abroad, including “the right of a citizen abroad to return to his own country” (ICCPR Art. 12(4)), and instances such as if “a national of any State, while abroad, were informed of a suit being brought against him in his own country.” UN Doc. E/CN.4/SR. 194, at 7 (1950). Mrs. Roosevelt, however, insisted that Covenant rights should only apply within the territory of a state. With respect to Malik’s points, she could see “no conflict between the United States amendment and article [12(4)]; the terms of article [12(4)] would naturally apply in all cases, and any citizen desiring to return to his home country would receive a fair and public hearing in any case brought against him.” Id.

39 UN Doc. E/CN.4/SR.194, at II (1950).

40 UN Doc. E/CN.4/L.161 (1952) (French amendment); UN Doc. E/CN.4/SR.329, at 14 (1952) (vote rejecting amendment). France continued to call for deletion of “within its territory” because the “current text of paragraph 1 did not commit States in regard to their nationals abroad.” Id. at 13 (statement of P. Juvigny, representative of France).

41 UN Doc. A/C.3/SR. 1259, para. 30 (1963) (rejection of French and Chinese proposal to delete “within its territory”). France and several other states again maintained that the Covenant should guarantee rights to citizens abroad. See UN Docs. A/C.3/SR.1257-1258 (1963).

42 Schwelb, supra note 25, at 109. Some commentators have suggested that a literal reading of the phrase “within its territory and subject to its jurisdiction” would conflict with the object and purpose of other provisions of the ICCPR, such as Article 12(4) concerning the right to enter one’s own country. See, e.g., McGoldrick, Dominic, Extraterritorial Application of the International Covenant on Civil and Political Rights, in Extraterritorial Application of Human Rights Treaties 41, 48 (Coomans, Fons & Menno, T. Kamminga eds., 2004)Google Scholar. However, as Mrs. Roosevelt pointed out, supra note 38, die phrase “within its territory” was not intended to be read in an overly technical manner so as to preclude individuals waiting to enter a country on its frontier.

43 López Burgos v. Uruguay, and Celiberti v. Uruguay, supra note 27, appendix. In both cases, the Committee relied upon the prohibition of misuse in Article 5( 1) of the Covenant as the basis for its action. However, as Tomuschat observed: “In principle, die scope of application of the Covenant is not susceptible to being extended by reference to article 5, a provision designed to cover instances where formally rules under the Covenant seem to legitimise actions which substantially run counter to its purposes and general spirit.” Id.; see NOWAK, supra note 27, at 43 n.80.

44 Buergenthal, Thomas, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill Oof Human Rights 72, 74 (Louis, Henkin ed., 1981)Google Scholar; McGoldrick, supra note 42, at 47-49; Meron, Theodor, Extraterritoriality of Human Rights Treaties, 89 AJIL 78, 79 (1995)Google Scholar; Scheinin, Martin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, in Extraterritorial Application of Human Rights Treaties, supra note 42, at 73, 7577 Google Scholar.

45 NOWAK, supra note 27, at 41 n.73. Nowak does suggest (contrary to Tomuschat) that the Covenant could apply with regard to “actions by occupation forces in accordance with the rules of the law of war.” Id. at 42; see also Joseph, Sarah, Schultz, Jenny, & Castan, Melissa, The International Covenant on Civil and Political Rights 8891 (2d ed. 2004)Google Scholar.

46 Concluding Observations of the Human Rights Committee: Netherlands, UN Doc. CCPR/CO/72/NET, para. 27 (2001).

47 Replies of the Government of the Netherlands to the Concerns Expressed by the Human Rights Committee, UN Doc. CCPR/CO/72/NET/Add.l, para. 19 (2003). Bosnia ratified the ICCPR in 1992. The United States also informed the Committee during the presentation of its initial report that “[t]he Covenant was not regarded as having extraterritorial application” because of the “dual requirement” of Article 2( 1). UN Doc. CCPR/C/SR. 1405, para. 20 (1995) (legal adviser, Dep’t of State, referring to the negotiating history).

48 Multilateral Treaties Deposited with the Secretary-General, ch. 4.4, available at <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/chapterIV.asp> (visited Jan. 11, 2005).

49 Banković v. Belgium, 2001-XII Eur. Ct. H.R. 333 (Grand Chamber), 123 ILR 94 (emphasis added).

50 Id., para. 37. The Court further found that “the notion of the Convention being a living instrument to be interpreted in light of present-day conditions” could not affect its decision when “the scope and reach of the entire Convention” was at issue. Id., paras. 40-41.

51 Id., para. 54.

52 See Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser A.) (1995) (preliminary objections); Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216, 2234-35, para. 52 (merits); Cyprus v. Turkey, 2001-IV Eur. Ct. H.R. 1 (Grand Chamber).

53 Banković, supra note 49, para. 80; accord Ilascu v. Moldova and Russia, App. No. 48787/09/99, paras. 434,442, 453, 464, 481 (2004) (Grand Chamber) (Russia responsible for ECHR violations in Transnestria after both Moldova and Russia became parties to ECHR).

54 Issa v. Turkey, App. No. 31821/96, para. 71 (2004) (Second Section). The chamber also cited a decision of the Inter-American Commission in Coard v. United States, Case 10.951, Rep. 109/99 (1999), involving the American Declaration on the Rights and Duties of Man of 1948. However, the Declaration contains no explicit limitation on jurisdiction and the issue of the scope of application was not before the Commission. The United States in that case argued that the Commission lacked specialized expertise to apply the international humanitarian law that was in issue, id., para. 38, that the principles of international humanitarian law displaced the application of the Declaration, id., para. 42, and that in all events the Declaration was nonbinding.

55 Al Skeini v. Secretary of State for Defence, [2004] EWHC 2911, paras. 263, 265 (Admin), available at <http://www.bailii.org/>.

56 Id., paras. 269, 284, 285. As a result, the High Court dismissed appeals by relatives of five Iraqis who died in shooting incidents in the southern Basra area. The Court did find that the case of an individual who had been arrested by British forces on charges of terrorism and was being held in “a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities,” and not as a “prisoner of war,” “falls within a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in the case of Hess v. United Kingdom, a prison.” Id., paras. 286-87.

57 Article 46(2) of the European Convention gives the Committee of Ministers authority to ensure enforcement of any final judgments. That committee has rarely found it necessary to resort to political or diplomatic pressure to ensure the execution of Judgments by states parties to the Convention. Report of the Chairpersons of the Human Rights Treaty Bodies on Their Thirteenth Meeting, UN Doc. A/57/56, para. 36 (2002).

58 Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS .” 302. Article 5(4) of the Protocol gives the Committee only the authority to “forward its views to the State Party concerned and to the individual.” See, e.g., Young, Kirsten, The Law and Process of the Human Rights Committee 176 (2002)Google Scholar; Tomuschat, Christian, Evolving Procedural Rules: The UN Human Rights Committee’s First Years in Dealing with Individual Communications, 1 Hum. Rts. L.J. 249, 255 (1980)Google Scholar. Additionally, only 104 out of the 154 states parties to the ICCPR have ratified the First Optional Protocol.

59 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 32, 1155 UNTS 331.

60 Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS 195.

61 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 UNTS 13.

62 Vienna Convention on the Law of Treaties, supra note 59, Art. 29.

63 Some recent commentators contend that while it is not appropriate “to use the term ‘extraterritorial’ obligations in the field of esc rights” since “the Covenant itself does not use jurisdiction and territory language,” it is appropriate to “refer to ‘international obligations.’“ Fons Coomans, Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights, in Extraterritorial Application of Human Rights Treaties, supra note 38, at 183, 186-87; see also Sigrun, I. Skogly & Gibney, Mark, Transnational Human Rights Obligations, 24 Hum. Rts. Q. 781, 781, 79091 (2002)Google Scholar. On the subject of international obligations under the ICESCR, see generally Michael, J. Dennis & David, P.Stewart Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health? 98 AJTL 462, 490, 498500 (2004)Google Scholar.

64 CHR, Report on the Tenth Session, UN ESCOR, 18th Sess., Supp. No. 7, para. 243, Annex I, Arts. 28 & 53, respectively, of the draft ICESCR and ICCPR. Both texts provided: “The provisions of the present Covenant shall extend to or be applicable equally to a signatory metropolitan State and to all the territories, be they Non-Self- Governing, Trust, or Colonial Territories, which are being administered or governed by such metropolitan State.”

65 UN Doc. A/C.3/SR. 1411, para. 4 (1966) (statement of representative of Ukrainian Soviet Socialist Republic).

66 Id., paras. 36,38 (statement of UN legal counsel Stavropoulos). See generally Schwelb, supra note 25, at 112-13.

67 Advisory Opinion, supra note 1, para. 112.

68 Id.

69 Id.

70 See COHEN, supra note 8, at 223 (noting that “the practice of recent belligerent occupations . . . to introduce a comprehensive reorganisation of the [educational] system.. .. would not appear to be lawful”); see also Gerhard, Von Glahn, The Occupation of Enemy Territory . . . A Commentary on the Law and Practice of Belligerent Occupation 6267 (1957)Google Scholar.

71 Article 14 was initially adopted at the 1951 drafting session of the Commission on Human Rights, based upon a proposal submitted by UNESCO. CHR, Report on the Seventh Session, UN ESCOR, 13th Sess., Supp. No. 9, paras. 124-25, UN Doc. E/CN.4/640 (1951). At the time, the Soviet delegation complained that the phrase “territory under its jurisdiction,” as originally proposed by UNESCO, would not include nonmetropolitan territories. UN Doc. E7CN.4/SR.227, at 12 (1951). As a result, states amended the UNESCO proposal, so that as finally adopted it referred to “its metropolitan territory or other territories under its jurisdiction.” See UN Doc. E/CN.4/ SR.228, at 6 (1951) (Egyptian subamendment); id. at 13 (UNESCO acceptance of revision); UN Doc. E7CN.4/SR.230, at 4 (1951) (vote).

72 ESC Res. 1985/17 (May 28); see UN Doc. E/1985/SR.22, paras. 43-48.

73 See Dennis & Stewart, supra note 63, at 490 n.199. When the Committee concluded that Israel had committed “gross violations of economic, social and cultural rights in the occupied territories,” Israel challenged the Committee’s “discriminatory treatment of Israel, lack of bona fides and the use of double-standards,” and withdrew from the Committee’s review of its report. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, UN Doc. E/C. 12/l/Add.69, para. 13 (2001) (emphasis added); Committee on Economic, Social and Cultural Rights, Report on the Twenty-fifth, Twenty-sixth and Twenty-seventh Sessions, 2001,2002 ESCOR, Supp. No. 2, Annex VI, at 195, UN Doc. E/2002/22-E/C. 12/2001/17 (statement by permanent representative of Israel); UN Doc. E/C. 12/2001/SR.39, para. 9 (withdrawal). The finding of the ESCR Committee that Israel had committed “gross violations” of economic rights in the West Bank and Gaza is highly questionable. The Committee “remind[ ed] the State party that even during armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights as part of the minimum standards of human rights are guaranteed under customary international law and are also prescribed by international humanitarian law.” Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, supra, para. 12.

74 CROC, supra note 3, Art. 2; Advisory Opinion, supra note 1, para. 113. The negotiating record actually demonstrates that the clause was drawn from Article 1 of the ECHR and was intended to cover extraterritorial acts in certain exceptional circumstances, such as those involving diplomats’ children. During the 1989 working group session of the Commission on Human Rights, a drafting group proposed that the provision read “to each child in their territories and subject to their jurisdiction,” which would be consistent with Article 2 of the ICCPR. Report of the Working Group on a Draft Convention on the Rights of the Child, UN Doc. E/CN.4/1989/48, paras. 147, 157. Responding to the Polish representative’s question about the applicability to diplomats’ children, id., para. 160, the observer for Finland “proposed, in order to cover every possible situation, the deletion of the reference to territories and keep [sic] only the reference to jurisdiction, such as in the European Convention,” id., para. 162. On that basis, the text of Article 2 was amended to read “to each child within their jurisdiction,” and was adopted in this form without further discussion of the matter. Id., para. 169.

75 Cohn, Ilene, The Convention on the Rights of the Child: What It Means for Children in War, 3 Int’l J. Refugee L. 100, 105(1991)Google Scholar.

76 The Interim Agreement on the West Bank and the Gaza Strip, Sept. 28,1995, Isr.-PLO, 36 ILM 551(1997), divides the territories into Areas A, B, and C, signifying different levels of Palestinian and Israeli control. The PA controls security and civil affairs in Area A, and civil affairs and shared responsibilities with Israel concerning security in Area B, while Israel controls certain civil functions and all security in Area C. The Agreement further provides that “Israel and the Council shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms and principles of human rights and the rule of law.” Id., Art. XIX. A similar transfer of powers and responsibilities took place in the Gaza Strip under the Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, Isr.-PLO, 33 ILM 622 (1994)Google Scholar. In its appearances before the international human rights treaty bodies, Israel has consistently maintained that it “has no say, control, or jurisdiction” over the Gaza Strip and in Areas A and B of the West Bank, where the vast majority of the Palestinian population resides, and thus that it has no ability to implement the rights enshrined in these treaties. See, e.g., Response of Israel to the “List of Items to Be Taken up in Connection with the Consideration of the Initial Report of Israel,” para.43 (Aug.2002),available at <http://www.unhchr.ch/html/menu2/6/crc/doc/replies/wr-israel-l.pdf> [hereinafter Response of Israel].

77 Advisory Opinion, supra note 1, para. 112.

78 Banković, supra note 49, para. 75.

79 Ilascu v. Moldova and Russia, supra note 52, para. 316.

80 For example, Article 2(2) of the ICCPR mandates that states parties “adopt such legislative or other measures as may be necessary to give effect to the rights” recognized in the Covenant whenever such measures do not already exist in their laws. Under Article 2(3), each state party undertakes to “[e]nsure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”

81 See NOWAK, supra note 27, at 636-38. Article 28 of the ICESCR and Article 50 of the ICCPR specifically mandate that “[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.” With respect to the CROC, some states have reserved the right to extend the treaty to their dependent territories. United Nations, Final Clauses of Multilateral Treaties: Handbook 81, UN Sales No. E.04.V.3 (2003) (noting that in the absence of a specific territorial application clause, “[a] practice has been developed by which [certain] States specify to which of their overseas territories the treaty will apply.” Israel has asserted, based upon this practice, that “in the absence of such specific declaration, the Convention cannot apply to different territories,” and that “it has never made such a declaration with respect to the West Bank and the Gaza Strip.” Response of Israel, supra note 76, paras. 44-45.

82 Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/C/79/Add.93, para. 10 (1998); accord Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, supra note 18, para. 31; Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, UN Doc. CERD/C/304/Add.45, para. 12 (1998); Concluding Observations of the Committee on the Elimination of Discrimination Against Women, UN Doc. A/52/38/Rev. 1, Part II, para. 170 (1997). The chairman of the Committee on the Rights of the Child similarly observed with respect to Israel that “devolution of administration did not absolve a central Government, as the State party to the Convention, from responsibility for ensuring that every child within the national jurisdiction enjoyed, without discrimination, all the rights enshrined in the Convention.” UN Doc. CRC/C/SR.829, para. 21 (1992) (statement of Mr. Doek). The UN legal counsel has also concluded that “the Convention [Against Torture] is binding upon Israel, as the occupying Power in respect of the Occupied Palestinian Territory.” Report of the Committee Against Torture, UN Doc. A/57/44, para. 215 (2002).

83 For example, this past December, the Committee Against Torture expressed dismay at the United Kingdom’s position that “those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the United Kingdom in Afghanistan and Iraq.” Conclusions and Recommendations of the Committee Against Torture: United Kingdom, UN Doc. CAT/C/CR/ 33/3, para. 4(b) (2004). The Committee “observes that the Convention protections extend to all territories under the jurisdiction of a State party and considers that this principle includes all areas under the de facto effective control of the State party’s authorities.” Id. Earlier, the Committee had directed that the United States report on “the situation in places of detention in Iraq” in its October 2004 periodic report. Committee Against Torture Concludes Thirty-second Session, UN Press Release HR/4763, at 3 (May 21, 2004). The Committee “drew .. .attention in particular to Article 2.1 of the Convention, according to which each State party should take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Id.

84 Tomuschat, Christian, Human Rights: Between Idealism and Realism 110 (2003)Google Scholar. Similarly, the United Kingdom maintained, with respect to the application of the Convention Against Torture in Iraq, see note 83 supra, that it “could not have taken legislative or judicial measures of the kind envisaged since legislative authority was in the hands of the CPA [Coalition Provisional Authority] and judicial authority was largely in the hands of the Iraqi courts.” Al Skeini, supra note 55, para. 103. At the close of the negotiations on the Convention Against Torture in 1984, the United States maintained that the treaty “was never intended to apply to armed conflicts and thus supersede the 1949 Geneva Conventions on humanitarian law in armed conflicts and the 1977 Protocols additional thereto.” CHR, Report of the Working Group on a Draft Convention Against Torture, UN Doc. E/CN.4/ 1984/72, para. 5. No delegation contradicted the U.S. statement. See also Statement of Norway, UN Doc. A/39/499, at 15 (1984) (“For these kinds of armed conflicts, the Geneva Conventions and the First Additional Protocol established a system of universal jurisdiction and of implementation that must be considered equal to the system of the convention against torture.”).

85 TOMUSCHAT, supra note 84, at 110. He further suggests, however, that it might be possible to disregard a literal interpretation of Article 2 of the ICCPR in situations of long-term occupation. Cf. McGoldrick, supra note 42, at 64-65.

86 Hague Regulations, supra note 15, Art. 43 (emphasis added).

87 Meron, Theodor, Applicability of Multilateral Conventions to Occupied Territories, 72 AJIL 542, 550 (1978)Google Scholar.

88 Id. at 551 (footnote omitted) (emphasis added).

89 Id. at 550; accord Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, 1995 ISR. Y.B. Hum. Rts. 1, 910 Google Scholar. AS Oppenheim points out: “There is not an atom of sovereignty in the authority of the occupant....” L. Oppenheim, The Legal Relations Between an Occupying Power and the Inhabitants, 33 L.Q. Rev. 363, 36465 (1917)Google Scholar. For this reason, some scholars have concluded that military necessity and the safety of the occupying power are the sole justification, under Article 43 of the Hague Regulations, for revising the laws in force in an occupied territory. See, e.g., Kelsen, Hans, Principles of International Law 14142 (2d ed. 1967)Google Scholar; Oppenheim; supra. However, other scholars, including Meron and Dinstein, take the view that safeguarding the welfare of the native population is also a legitimate aim of any lawful military occupation, particularly in situations of prolonged military occupation. See, e.g., Benvenisti, Eyal, The Applicability of Human Rights Conventions to Israel and to the Occupied Territories, a26 ISR. L. Rev. 24, 3132 (1992)Google Scholar; Roberts, supra note 9, at 99. Scheffer suggests that it might be possible to develop “a more effective and legally acceptable means to respond to the civilian populations that are at risk” through a “ ‘transformational occupation’ by one or more military powers acting under the authority of the UN Security Council.” David, J. Scheffer, Beyond Occupation Law, 97 AJIL 842, 85960 (2003)Google Scholar. Scheffer further argues that “[u]nder a UN mandate, strict adherence to the technical requirements of many codified occupation law provisions would be nonsensical.” Id. at 853.

90 As noted above, even though most of the coalition states were parties to the Convention Against Torture, during the occupation of Iraq the CPA did not attempt to implement the specific provisions of that instrument, since Iraq had not ratified the treaty prior to the occupation. On the other hand, the CPA did cite other human rights treaties and ILO conventions as a basis for its actions in various orders and regulations. See, e.g., CPA Order No. 19 (July 10, 2003) (modifying Iraqi law concerning freedom of assembly); CPA Order No. 60 (Feb. 22, 2004) (establishing the Ministry of Human Rights); CPA Order No. 89 (May 30, 2004) (amending the Iraqi Labor Code concerning child labor). Prior to the commencement of the occupation, Iraq had ratified five of the six widely ratified international human rights treaties (the Covenants, the CROC, and the Conventions on the Elimination of Racial Discrimination and of Discrimination Against Women) and fifty-nine of the ILO conventions currently in force. Additionally, shortly before the end of the occupation, the Iraqi Governing Council approved a Transitional Administrative Law, recognizing that the people of Iraq enjoy the rights provided in international treaties and agreements and in the law of nations. Transitional Administrative Law, Art. 23 (Mar. 8, 2004), available at <http://www.cpa-iraq.org/government/TAL.html>. The law also guaranteed specific civil and political rights in Chapter 2: Fundamental Rights. The orders and regulations of the CPA are available online at <http://www.iraqcoalition.Org/regulations/index.html#Regulations>.

91 International Labour Conference, Record of Proceedings, 63d Sess., at 710 (1977) (statement of Iraqi representative on behalf of all Arab delegations). Ultimately, the entire report of the ILO Committee on the Application of Conventions was rejected at the sixty-third session because of its consideration of the report of Israel on the implementation of ILO Convention No. 111. Id. at 726-27.

92 In 1980 member states of the ILO adopted a resolution calling for the director-general to report annually on the labor situation in the territories. International Labour Conference, Record of Proceedings, 66th Sess., at xxxviii-xxxix (1980). Within that mandate the director-general annually sends a fact-finding delegation to visit the region. For the most recent report, see ILO, Report of the Director-General, Appendix, The Situation of Workers of the Occupied Arab Territories, International Labour Conference, 92d Sess. (2004).

93 ILO Doc. GB.233/16/30, 233d Sess., para. 7 (1986); see also Minutes of the Fifth Sitting of the Governing Body, ILO Doc. GB.233 (1986).

94 In fact, Article 8(3) of the ICESCR expressly provides that nothing in that article shall authorize states parties to ILO Convention No. 87 “to take legislative measures, . . . or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.”

95 Michael, J. Kelly, Restoring and Maintaining Order in Complex Peace Operations 92 (1999)Google Scholar; Jochen Abr., Frowein, The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, 1998 ISR. Y.B. Hum. Rts. 1, 911 Google Scholar; Schindler, Dietrich, The International Committee of the Red Cross and Human Rights, Int’l Rev. Red Cross, No. 208, Feb. 1979, at 3, 11 CrossRefGoogle Scholar; Watkin, supra note 6, at 26-28.

96 Benvenisti, Eyal, The International Law of Occupation 16, 189 (1993)Google Scholar; see also Greenspan, Morris, Modern Law of Land Warfare 233 (1959)Google Scholar; Von Glahn, supra note 70, at 98-99. During the drafting of the Fourth Geneva Convention, states rejected a proposal by the Mexican delegate that would have required that modifications to the law of the occupied territory could occur only in accordance with the Universal Declaration. Final Record of The Diplomatic Conference of Geneva of 1949,2A, at 671; see also Kolb, Robert, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, Int’l Rev. Red Cross, NO. 324, Sept. 1998, at 409, 415 CrossRefGoogle Scholar. Greenwood suggests that “particularly in a prolonged occupation, the very extensive freedom which an occupying state retains to detain suspects without trial and to curtail freedom of expression, association and movement ought to be tested against the criteria of necessity and proportionality recognised by human rights law.” Greenwood, supra note 8, at 288. The Israeli Supreme Court appears to have followed a similar approach when it took into account the right to liberty of movement recognized under its domestic law in considering whether the injury caused by the chosen route was proportional to the security benefits from the fence. See note 21 supra.

97 Advisory Opinion, supra note 1, para. 106. The Court’s statement was based in part upon its earlier position in the Nuclear Weapons case, supra note 5, para. 25, that “the test of what is an arbitrary deprivation of life . . . falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.” The Human Rights Committee appears to have taken a similar approach in its General Comment No. 31, supra note 28, para. 11, where it stated that “in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights.” With respect to Israel, however, the Committee concluded that “the applicability of rules of humanitarian law does not by itself, impede the application of the Covenant.” Concluding Observations of the Human Rights Committee: Israel, supra note 82, para. 10.

98 Advisory Opinion, supra note 1, para. 134.

99 M., para. 125.

100 Article 6(3) of the Fourth Geneva Convention, supra note 15, states:

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the Present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. (emphasis added)

See Roberts, supra note 9, at 55.

101 Advisory Opinion, supra note 1, paras. 77, 132, 135. Whether Israel continues to maintain the functions of government in the West Bank and Gaza is not free from doubt. As discussed above, supra note 76, it would appear that the Palestinian Authority maintains governmental responsibilities in most areas where the Palestinian population resides.

102 As Roberts points out, pursuant to Article 6, one year after the close of military operations an occupying power is obliged to observe only 43 out of the 159 articles of the Convention. Roberts, supra note 9, at 55.

103 Id.; see also Kretzmer, David, The Advisory Opinion: The Light Treatment of International Humanitarian Law, 99 AJIL 88, 91 n.23 (2005)Google Scholar (in this Agora). On the other hand, the Court found that Article 6 is triggered when there has been a general close of military operations leading to the occupation, an element not found in Article 6. See text at note 99 supra. It is unclear why the Court added this element. As Roberts points out, the “ ‘one year after’ provision of 1949 must be viewed as a legal oddity” since “ the solution it proposed was not equally appropriate to all occupations, and it has not commended itself greatly to military administrators, inhabitants of occupied territories or international lawyers.” Roberts, supra note 9, at 57. Additionally, Israel has argued and the Committee on the Rights of the Child has found that currendy there is an armed conflict in the West Bank and Gaza. See Response of Israel, supra note 76, para. 51; Concluding Observations of the Committee on the Rights of the Child: Israel, UN Doc. CRC/C/15/Add.l95, paras. 31, 58 (2002).

104 Article 3(b) of Additional Protocol I states that “the application of the Conventions and of this Protocol shall cease, . . . in the case of occupied territories, on the termination of the occupation.” See BOTHE, PARTSCH, & SOLF, supra note 26, at 59 (noting that Article 6(3) was a special ad hoc provision designed for the cases of the “occupation of Germany and Japan after World War II. There is no reason to continue to keep in force such provisions designed for specific historic cases. In 1972 the majority of Government experts expressed a wish to abolish these time limits.”).

105 Advisory Opinion, supra note 1, para. 106. As noted at the outset, the ICJ made a similar statement in its Nuclear Weapons opinion, supra note 5, para. 25.

106 Advisory Opinion, supra note 1, para. 127; see also id., paras. 136, 140.

107 Article 4 further stipulates that the measures be “strictly required by the exigencies of the situation,” and “not inconsistent with their other obligations under international law,” and “do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

108 Landinelli Silva v. Uruguay, Comm. No. 34/78, UN Doc. CCPR/C/OP/1, at 65, para. 8.3 (1984) (“Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to article 4(3) of the Covenant, the State party concerned is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes article 4( 1) . . . “). For further discussion of the case, see McGolddrick, Dominic, The Human Rights Committee, paras. 7.367.41 (1994)Google Scholar.

109 See, e.g., Weismann Lanza and Lanza Perdomo v. Uruguay, Comm. No. R. 2/8 (1977), para. 15, UNGAOR, 35th Sess., Supp. No. 40, at 111, UN Doc. A/35/40 (1980); Torres Ramírez v. Uruguay, Comm. No. R. 1/4 (1977), para. 17, id. at 111. See also MCGOLDRICK, supra note 108, para. 7, 36 (“[Ramírez] clearly indicates that the HRC will consider ex officio the possible application of article 4 even when the State party does not specifically rely upon it”); JOSEPH, SCHULTZ, & CASTAN, supra note 45, at 835 (“It is uncertain how the HRC will react should a State Party make a bona fide attempt to justify its derogations, as this has never occurred in an Optional Protocol case.”). But see NOWAK, supra note 27, at 92 (noting that it is not necessary to notify to take derogation measures but that the “information in the notification on the provisions of the Covenant derogated from is constitutive in that the State Party concerned cannot subsequently invoke derogations of other provisions in either the individual communications procedure or that for examining State reports”). However, Israel had consistently informed the Committee of its view that none of the provisions of the ICCPR applied in the West Bank and Gaza. See Concluding Observations of the Human Rights Committee: Israel, supra note 82, para. 10; id., supra note 18, para.

110 Multilateral Treaties Deposited with the Secretary-General, supra note 48, ch. 4.4 (notifications under Article 4(3) of Covenant (Derogations)). As of January 11, 2005, twenty-seven states had submitted notifications under Article 4(3), twenty-one of which derogated from the requirements of Article 12 concerning freedom of movement.

111 See Reimer, Matthew, Strategic Tradeoffs in Iraq (Dec. 15, 2003)Google Scholar, available at <http://www.globalpolicy.org/security/issues/iraq/archoccupindex.htm>.

112 Brief for Appellees at 45-46, Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153 (9th Ch. 2002) (No. 02-55367). Plaintiffs had argued that the ICCPR creates judicially enforceable rights that may be properly invoked in habeas corpus proceedings. The Ninth Circuit dismissed the case without reaching the issue. The Inter-American Commission on Human Rights (IACHR) appears to have recognized the appropriateness of treating international humanitarian law as the lex specialis with regard to the American Declaration. See Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba) (Mar. 12, 2002), 41 ILM 532, 533 (2002)Google Scholar.

The European Commission on Human Rights also appears to have concluded in its first interstate application in Cyprus v. Turkey that the Third Geneva Convention on prisoners of war takes precedence over the ECHR with regard to persons accorded prisoner-of-war status. App. Nos. 6780/74, 6950/75, 4 Eur. H.R. Rep. 482 (1982) (1976 Commission report); Frowein, supra note 95, at 10.

113 States in Banković made similar arguments. See Banković, supra note 49, para. 40. Similarly, it is difficult to see how states contributing troops to multilateral forces would be able to limit rights extraterritorially on the basis of the “national security” restrictions permitted under various provisions of the ICCPR. See Articles 12(3) (liberty of movement), 14 (exclusion of press from trials), 19 (freedom of expression), and 21 (peaceful assembly). The negotiating history of the Covenant indicates that most states believed that these restrictions “which applied in times of peace were plainly inadequate in a case of public emergency, when much more stringent measures might be required.” UN Doc. E/CN.4/SR.330, at 10 (1952) (statement of UK representative); see also UN Doc. E/CN.4/ SR. 127, at 4 (1949) (statement of representative of Australia) (stating that “the words ‘national security’ appearing in a number of articles” were not “sufficient to meet all the contingencies arising out of a war or a serious emergency”); Higgins, Rosalyn, Derogations Under Hunan Rights Treaties, 1978 Brit. Y.B. Int’l, L. 281, 286 Google Scholar. The ICJ concluded in the Wall case that any restriction under ICCPR Article 12(3) on the basis of “national security” must “conform to the principle of proportionality” and “be the least intrusive instrument amongst those which might achieve the desired result” (quoting the Human Rights Committee’s General Comment No. 27), and that “[o]n the basis of the information available to it . . . these conditions are not met in the present instance.” Advisory Opinion, supra note 1, para. 136.

114 UN Doc. E/CN.4/AC.3/SR/8, at 10 (1947).

115 Id. (statement of legal adviser of the United Kingdom). The UK proposal was accepted by the Commission in its plenary session. UN Doc. E/CN.4/SR.42, at 4-5 (1947). Belgium later asserted with respect to ICCPR Article 4(2) (nonderogable rights) that, nonetheless, “under international law, in case of war, the covenant would be at least suspended between belligerents.” UN Doc. E/CN.4/SR.330, at 7 (1950) (statement of representative of Belgium); see also Annotation Prepared by the Secretary-General, Draft International Covenants on Human Rights, UN Doc. A/2929, para. 37 (1955) (“In time of war, for example, States could not be strictly bound by obligations assumed under a convention unless the convention contained provisions to the contrary.”).

116 See Fitzpatrick, Joan, Human Rights In Crisis 2937 (1994)Google Scholar; NOWAK, supra note 45, at 73-74; Joan, F. Hartman, Derogation from Human Rights Treaties in Public Emergencies, 22 Harv. Int’l L.J. 1, 11, 13 (1981)Google Scholar.

117 UN Doc.E/CN.4/SR. 195, at 11 (1950) (statement of representative of Uruguay). For the vote on the retention of Article 4, see id. at 17.

118 UN Doc. E/CN.4/SR.330, at 12 (1952) (statement of representative of France).

119 Article 4(2) stipulates that no derogation may be made from Articles 6 (right not to be arbitrarily deprived of one’s life), 7 (prohibition of torture), 8 (prohibition of slavery and servitude), 11 (prohibition of detention for debt), 15 (prohibition of retroactive criminal laws), 16 (recognition as a person before the law), and 18 (freedom of thought, conscience, and religion).

120 See, e.g., UN Doc. E/CN.4/SR.195, at 23 (1950) (statement of representative of Belgium) (Article 26 was “not applicable in time of war” because “a State could not treat its own citizens the same as enemy nationals”); UN Doc. E/CN.4/SR.196, at 3 (1950) (statement of Eleanor Roosevelt). For the vote, see id. at 7-8.

121 UN Doc. E/CN.4/SR. 196, at 5 (1950) (statement of representative of the Philippines). The drafters added a specific nondiscrimination clause to Article 4(1) in 1952, excluding the factor of national origin in order to permit discrimination against enemy aliens residing in their territory. CHR, Report of the Eighth Session, UN ESCOR, 14th Sess., Supp. No. 4, at 279-80, UN Doc. E/2256-E/CN.4/669; see Hartman, supra note 116, at 10.

122 UN Doc. A/C.3/SR.1262, para. 8 (1963) (statement of representative of the Netherlands). The point was also stressed that Article 4 could apply only within the territory of a state. UN Doc. A/C.3/SR. 1261, para. 46 (1963) (statement of representative of Romania).

123 Protocol I, supra note 15; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977,1125 UNTS 609 [hereinafter Protocol II]. 124 Additionally, the prohibition on retroactive criminal laws contained in ICCPR Article 15(1) is restated virtually verbatim in both Article 6(c)(2) of Protocol II and Article 75(4)(c) of Protocol I. Both Protocols also contain more detailed rules than the ICCPR concerning the arbitrary deprivation of life and torture. Protocol II, supra note 123, Art. 4(2); Protocol I, supra note 15, Art. 75(2). The effect of the ICCPR on Protocol II is more pronounced. See generally International Committee of the Red Cross [ICRC], Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 865, 1365 (Sandoz, Yves, Swinarski, Christophe, & Bruno, Zimmermann eds., 1987)Google Scholar (Protocol II “contains virtually all the irreducible rights of the Covenant . . . from which there is no possibility of derogation”); Bothe, Partsch, & Solf, supra note 26, at 650 (“Most of the provisions of this Article [6] correspond to provisions of the Covenant on Civil and Political Rights.”); Moir, Lindsay, The Law Of Internal Armed Conflict 21031 (2002)Google Scholar.

125 Schindler, supra note 95, at 14. He further states that “certain political freedoms, such as freedom of the press, freedom of expression, freedom of association” are “of no importance in armed conflicts.” Id. at 11. The ICRC gave the following reason for restating various provisions of the ICCPR in Protocol II:

The system of protection setup by international humanitarian law . . . differs from that provided by instruments on human rights. Nevertheless, the view was held that some basic provisions of the International Covenant on Civil and Political Rights—particularly those from which no derogation may be made even in time of public emergency which threatens the life of the nation—should be applicable in the context of armed conflict.... As every legal instrument specifies its own field of application, some of the Covenant’s provisions have been restated within the framework of the draft Protocol.

ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary ] 34 (No. CDDH/3, 1973).

126 Advisory Opinion, supra note 1, Separate Opinion of Judge Higgins, 43 ILM at 1058 Google Scholar, para. 27 (quoting Advisory Opinion, para. 134).

127 See Schindler, supra note 8, at 939-40 (“the economic, social, and cultural guarantees of the first International Covenant of 1966” “have no relevance to armed conflicts”); Higgins, supra note 113, at 286 (“The International Covenant on Economic, Social and Cultural Rights contains no derogation provision, thus implicitly confirming the view that such a clause should only be deemed necessary where there are strong implementation provisions.”).

128 Article 2(1) of the ICESCR, supra note 2, unlike Article 2(1) of the ICCPR, supra note 2, merely stipulates that “[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation,... with a view to achieving progressively the full realization of the rights recognized in the present Covenant.” Article 2(3) further allows “[developing countries, with due regard to human rights and their national economy,” to “determine to what extent they would guarantee the economic rights . . . to nonnationals.” Similarly, Article 4 of the CROC provides that “[w]ith regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.” See generally Dennis & Stewart, supra note 63, at 492-98.

129 Universal Declaration of Human Rights, GA Res. 217A, Dec. 10, 1948, Art. 17, UN GAOR, 3d Sess., pt. I, Res., at 71, UN Doc. A/810 (1948); CHR, Report on the Tenth Session, supra note 64, paras. 40-71; see UN Doc. E/C12/ 2001/WP.5, para. 39 (statement of general counsel of the International Monetary Fund to ESCR Committee) (noting that certain rights are “essential” to realizing the social rights in the ICESCR but are not provided for in it: “For example, the right to own property is stated in the Universal Declaration, but it is not included in any of the two Covenants, and thus has remained outside the scope of the human rights monitoring system.”).

130 See generally Von Glahn, supra note 70, at 176-201; Dinstein, Yoram, The International Law of Belligerent Occupation and Human Rights, 1978 ISR. Y.B. Hum. Rts. 104, 12738 Google Scholar; Greenwood, supra note 8, at 292.

131 Advisory Opinion, supra note 1, paras. 132, 135. The Court also found that the barrier violated Article 52 of the Hague Regulations of 1907 (barring measures aimed at creating unemployment). Id., para. 132.

132 Of course, as the Israeli Supreme Court decision illustrates, see supra note 21, human rights factors may be taken into account under the proportionality criteria in international humanitarian law. As Pictet observes, “[W]henever it is felt essential to resort to destruction [of real or personal property pursuant to Article 53 of the Fourth Geneva Convention], the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done.” ICRC, Commentary on The Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 302 (Jean Pictet gen. ed. 1958).

133 Advisory Opinion, supra note 1, para. 106.

134 The ICESCR contains a general limitations provision in Article 4, but that provision has not been used by states. See Alston, Philip & Quinn, Gerard, The Nature and Scope of States Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 156, 19394 (1987)Google Scholar. The ICJ found that the provision was not available to Israel, since “the restrictions on the enjoyment by the Palestinians living in the territory occupied by Israel of their economic, social and cultural rights” must be “solely for the purpose of promoting the general welfare in a democratic society.” Advisory Opinion, supra note 1, para. 136 (quoting ICESCR, supra note 2, Art. 4). It is difficult to envision how an occupying power would ever be able to limit ICESCR rights under this standard. As one commentator has observed: ‘ The government of an occupied territory by the occupant is not the same as a State’s ordinary government of its own territory: a military occupation is not tantamount to a democratic regime and its objective is not the welfare of the local population.” Dinstein, supra note 130, at 116.

135 ESCR Comm, General Comment No. 15, UN Doc. E/C.12/2002/11, paras. 37, 40; accord ESCR Coram., General Comment No. 14, UN Doc. E/C. 12/2000/4, para. 47.

136 Of course, international humanitarian law contains even more stringent and specific protections during periods of armed conflict and military occupation than those the Committee has suggested in its “minimum standards.” See, for example, the recent voluntary guidelines on the right to food, where states reaffirm the application of Articles 55 and 59 of the Fourth Geneva Convention during situations of military occupation. Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Annex 1 to FAO, Report of the Intergovernmental Working Group for the Elaboration of a Set of Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Guideline 16.2 (Sept. 23, 2004), available at <http://www.fao.org/docrep/meeting/008/J3345e/j3345e01.htm#al>.

137 ILO, Report of the Acting Director, Minutes of the 95th Session of the Governing Body, app. XI, Annex A, at 165 (1945); see also 1 ILO, The International Labour Code 1951, Explanatory Note, at XCVI (quoting statement in text). For the ILO’s treatment of the suspension of ILO treaties during periods of public emergency, see Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 69th Sess., Vol. B, Rep. Ill (Part 4B), paras. 71-73 (1983); FITZPATRLCK, supra note 116, at 106-12; Landy, E. A. , The Effectiveness of International Supervision: Thirty Years of I.L.O. Experience 14750(1966)Google Scholar.

138 Alston and Quinn, citing the practice of the ILO, have also argued that “the absence of a specific derogation clause from the Covenant should not be interpreted as foreclosing such a possibility.” Alston & Quinn, supra note 134, at 219. For a recent discussion of the legal effects of armed conflicts on multilateral treaties, see Aust, Anthony, Modern Treaty Law and Practice 24344 (2000)Google Scholar. At its last session, the International Law Commission decided to appoint a special rapporteur (Ian Brownlie) to study the “effects of armed conflicts on treaties.” Report of the International Law Commission, Fifty-sixth Session, UN GAOR, 59th Sess., Supp. No. 10, at 8, para. 19, UN Doc. A/59/10 (2004).

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Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation
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Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation
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Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation
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