HUMAN RIGHTS OBLIGATIONS OF A STATE IN SITUATION OF OCCUPATION
Journal Title: Вісник Національної академії правових наук України - Year 2018, Vol 1, Issue 1
Abstract
The article analyses the notion and conditions of military occupation as a type of international armed conflict, which is regulated by the law of occupation as a component of IHL (Hague and Geneva law). The elements of “effective control” test, which allows to define whether a territory is under the occupation, are disclosed with the “theory of indirect effective control” with the help of which an occupying state could exercise effective control over occupied territories through “surrogate” armed forces who are under its “overall control”. It is proved, that the state obligations to respect and to provide rights for local population contain in a law of occupation and in a law of human right. Extraterritorial applicability of the law of the human right in case of the state exercising effective control over the territory (part of the territory) of the foreign country is accepted with international tribunals, UN human rights monitoring bodies, and also European Court of Human Rights (ECHR). With all that, precise behaviour, which is sufficient for exercising different obligations in the area of human rights in situation of military occupation (”model of application”), must be defined in the legal and practical context, in which occupational government operating taking into account all possible derogations. It is substantiated and practically illustrated, that the scope of extraterritorial obligations of the state depends on type of obligations (positive and negative obligations of human rights), duration of occupation (short-termed or prolonged occupation), and also types of human rights (civil and political rights versus economic, social and cultural rights in the context of obligations to respect, to protect and to fulfill human rights). It is stated, that the applicability of the human rights law in the situation of occupation provides additional opportunities for people residing on temporarily occupied territories which are not provided by IHL, first of all, an opportunity to apply to international mechanism for human rights protection in particular to the ECHR. Meanwhile, to fulfil its positive obligations, a state, which is not exercising control over a part of its territory, must by all available means provide actions to secure the rights of its citizens who are residing on non-governmental controlled areas.
Authors and Affiliations
Ganna Khrystova
Keywords
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