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Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms

Israel Law Review, Vol. 42, No. 1, pp. 80-100, 2009

Hebrew University International Law Research Paper No. 18-09

22 Pages Posted: 20 Oct 2009  

Ralph Wilde

University College London - Faculty of Laws

Date Written: October 14, 2009

Abstract

This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.

Keywords: international law, human rights, occupation law, juditial treatment, HRL, English House of Lords, European Convention on Human, ECHR, Al-Skeini, Iraq, United Kingdom

Suggested Citation

Wilde, Ralph, Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms (October 14, 2009). Israel Law Review, Vol. 42, No. 1, pp. 80-100, 2009; Hebrew University International Law Research Paper No. 18-09. Available at SSRN: https://ssrn.com/abstract=1488819

Ralph Wilde (Contact Author)

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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