Occupation

Volume 94 Number 885 Spring 2012source of obligation would not present a serious obstacle if the less controversialsource of treaty obligations resulted in an ostensibly higher level of human rightsprotection. Finally, the earlier discussion of context must be recalled here. Whetherapplying the human rights obligations of the Occupying Power itself or those thatwere in place in the occupied state, the legal and practical context of occupation mayaffect the substantive content of these rights and their implementation.ConclusionThat international human rights law may be applicable during military occupationshould not, by now, be a surprising conclusion. Although controversies remain overthe full extent of circumstances in which human rights obligations applyextraterritorially, and the modalities of concurrent applicability of IHL and humanrights law continue to be debated, there is now a weight of opinion and cases tosupport applicability of human rights law in military occupation. Moreover, theprevailing approach points to the full spectrum of human rights obligations beingapplicable when a state exercises territorial control, a criterion argued here to beinherent in the definition of occupation. However, such a conclusion risks placingimpractical – perhaps even impossible – demands upon the Occupying Power.Clearly, situations of occupation may involve volatile circumstances far removedfrom the possible tranquillity within a state’s own territory. While the OccupyingPower will always be required to act to the best of its ability, the circumstances –legal and factual – of each case will affect its capabilities in dispatching its duties.This article has argued that, although the full applicability of international humanrights law can be presumed in military occupation, the precise requirementsnecessary to fulfil the obligations, and any assessment of whether they have beenadhered to, must proceed based on a contextual approach.337