Occupation

Volume 94 Number 885 Spring 2012occupying power displaces the de jure government of a state that is bound by humanrights treaties, it is argued, the occupier’s authority within that state’s territoryshould be subject to the same treaty norms. Otherwise, the population would bedivested of the treaty’s protection through no actions (or fault) of its own. Further,because human rights treaties require state parties to enact rights- protectivelegislation at home, the same obligations would apply when they assert governingauthority through occupation. 92 The full panoply of treaty obligations effectivelyfunctions as a political blueprint for a human-rights-compliant society. Occupiers ofilliberal states may thus be compelled to act as social engineers, creating the norms,procedures, and institutions of a treaty-compliant, liberal society. As Grant Harrisnotes, ‘there is no natural ending point for an occupant’s obligations to protecthuman rights short of the creation of a functioning state with permanentinstitutions capable of doing so’. 93The general proposition that states remain subject to at least some of theirhuman rights treaty obligations during an occupation is now well established ininternational law. 94 But to move from this general principle to legitimizingtransformative occupation requires a complex journey. In part this is because muchof the jurisprudence on extra-territoriality – apart from that of the European Courtof Human Rights – is quite superficial and provides little explanation of how aconflict between human rights (legislative obligations) and humanitarian law(prohibition on legislative changes) is to be resolved. Occupation sits uneasily on theborder between armed conflict and peacetime governance. On the one hand, itpresents an excellent opportunity to open closed societies to the robust debate andpolitical competition provided by democratic institutions. On the other, the securityenvironment in many occupations is so fragile that the military requires powersunthinkable during peacetime. 95 This duality creates a problem of legal categories.If occupation is viewed primarily as a stage of armed conflict, governance canbecome a vehicle for human rights protection only when doing so is compatiblewith the occupier’s ability to maintain security. Occupation law tempers itsprotection of human rights with significant deference to considerations of military92 Article 2(2) of the International Covenant on Civil and Political Rights (ICCPR) typifies such legislativeobligations: ‘Where not already provided for by existing legislative or other measures, each State Party tothe present Covenant undertakes to take the necessary steps, in accordance with its constitutionalprocesses and with the provisions of the present Covenant, to adopt such laws or other measures as may benecessary to give effect to the rights recognized in the present Covenant’.93 G. T. Harris, above note 89, p. 121.94 See ICJ, Wall decision, above note 42; ICJ, Armed Activities on the Territory of the Congo (DemocraticRepublic of the Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, p. 168; European Courtof Human Rights (ECtHR), Al-Skeini et al. v. The United Kingdom, Judgment, 7 July 2011, App.No. 55721/07; Human Rights Committee, General Comment No. 31: Nature of the General LegalObligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13,para. 10; Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, andPolicy, Oxford University Press, Oxford, 2011.95 A well-planned operation will pair traditional security operations with efforts to build the rule of law andstrong state institutions, which in the long run are the only effective guardians against civil unrest. See thethorough discussion in Jane Stromseth, David Wippman, and Rosa Brooks, Can Might Make Rights?Building the Rule of Law after Military Interventions, Cambridge University Press, Cambridge, 2006,pp. 134–177.257