Central Asian Yearbook of International Law and International Relations

Article

The Right to Work Obligations of an Occupying Power

The Challenge of the Mode of Applicability of Human Rights and Humanitarian Law

Keywords right to work, right to employment, military occupation, lex specialis, concurrent application, rights during armed conflict
Authors Selbi Durdiyeva
Author's information

Selbi Durdiyeva
Selbi Durdiyeva is a Research Assistant at Nottingham Law School, UK and a Fellow of the Alliance for Historical Dialogue and Accountability at the Institute for the Study of Human Rights at Columbia University, USA.
  • Abstract

      Whereas it is no longer a concern whether international human rights law (IHRL) is applicable during an armed conflict, the mode of applicability represents a challenge, particularly in view of the potentially limiting doctrine of lex specialis. The article argues that IHRL provisions on the right to work can contribute positively to the rather scarce provisions on the same right in occupation law. The inherent clash between the applicability of IHRL and international humanitarian law (IHL) lies in the conservative and resistant to change nature of occupation law, on the one hand, and progressive and dynamic economic, social and cultural rights (ESCR), on the other. The author examines the extent to which the domestic law of an occupied territory may be changed during occupation to be in line with the IHL requirements while, at the same time, fulfilling the duties in line with the IHRL obligations. A genuine necessity test is offered as the solution. The author contends that no uniform answer exists and that each case should be analysed separately, taking into account that any change in law should first be absolutely necessary and that, secondly, it should reflect the best interests of the occupied inhabitants. Examples will be drawn from the cases of Occupied Palestinian Territories and Iraq.

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