Joint Blog Series on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHLR: Part II

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BOG_Ken WatkinThe latest post in the joint blog series we are hosting with Lawfare and Intercross is Part II of Brigadier General (Rtd) Ken Watkin QC’s piece on “The Overlap between IHL and IHRL”. The piece  is posted on Intercross, where you can also find Part I. Ken Watkin was the senior legal adviser in the Canadian Armed Forces and, also  a former Stockton Professor of International Law at the US Naval War College. The joint series arises out of the 2nd annual Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford in July.

Ken begins his latest post in this way:

Last week, I described  the “exclusionary” approaches to the application of international humanitarian law (IHL) and international law human rights law (IHRL), which assume that one body of law will apply to the exclusion of the other. I also described how the approaches taken by the United States and Canada differ from those taken by European nations, the latter approach being influenced, in large part, by decisions of the European Court of Human Rights. However, the widely and often loudly debated exclusionary approaches do not actually represent how the law is being applied, particularly in a North American context. The reality of contemporary conflict is that both normative frameworks often need to be relied on concurrently. The application of human rights based norms occurs less through consideration of IHRL treaty law obligations than by operation of customary law obligations (both IHRL and IHL), the application of domestic law, or as a matter of policy. There is increasing recognition that Common Article 3 and Article 75 of Additional Protocol I apply as a matter of customary international law to international operations. Article 75 was clearly influenced by the 1948 Universal Declaration on Human Rights and the 1966 International Covenant on Civil and Political Rights. As then Professor Christopher Greenwood noted, the relationship between IHL and human rights law “is expressed in the adoption of major human rights principles in Article 75 AP I” [Christopher Greenwood, “Scope of Application of Humanitarian Law”, in Dieter Fleck, ed., The Handbook of International Humanitarian Law (2nd ed., 2008), 74, Rule 254.] Significantly, these human rights norms must be applied regardless of the geographic location of the armed conflict, thereby avoiding the intractable debate regarding the extra-territorial application of IHRL treaty law.

Read the rest on Intercross!

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Jordan says

September 11, 2014

an "intractable debate regarding the extra-territorial application of IHRL treaty law"? See, e.g.,
U.N. Charter, art. 55(c) ("UNIVERSAL respect for, and observance of"), 56, 103 (override of other international agreements, including those re: laws of war, to the contrary); ICCPR, preamble (reaffirming this duty regarding the "UNIVERSAL" reach of human rights duties under the UN Charter, etc.

Jordan says

September 11, 2014

p.s. I wonder whether there is any person who is familiar with international law who would go on record stating that treaty-based human rights under the U.N. Charter do not apply extraterritorially. Similarly, I wonder whether there is any such person who would state that human rights protected under the ICCPR do not apply extraterritorially or that the CAT does not apply extraterritorially. I wonder if there is any such person who would state that human rights jus cogens do not apply extraterritorially or that they would not trump inconsistent laws of war that did not have such a status. I wonder whether there is any such person who wold state that human rights obligations that exist under Articles 55(c), 56, and 103 of the Charter do not have primacy over laws of war.