self-determination refers to the right for a local population to determine its own governance and its own state

It is completely contradictory to the concept of self-determination but for those who don't know self-determination refers to the right for a local population to determine its own governance and its own state and its own elections democracy etc how can this happen if it is under the control of a hostile military that diligent occupation is incompatible with the idea of article 21 3 of the universal declaration of h an rights so at least in this example it is completely incompatible with human rights law okay so therefore one solution we're gonna have to think about would be to incorporate international h an rights law into the law of belligerent occupation okay as a way to expand the city the rights of citizens living in occupied territories okay now there are a number of challenges to this thesis there are a number of challenges that already that we've already mentioned,

Example of self-determination how is that even applicable in a case of occupation law but there are also other challenges that exist that are a bit more broad to this to this argument i'm going to talk about one or two of them and i'm going to focus then specifically on one that is quite apt and quite important and that is the extent to which rights such as the freedom of assembly or the freedom of expression can ever be upheld in occupied territories so the first challenge to the assumption that h an rights can exist or should exist in situations of diligent occupation simply refers to the purpose of the two areas of law that we're talking about if we put this more succinctly h an rights law does not apply to the law of legend occupation because h an rights law is only applicable in times of peace that could be one of the arguments,

 that we make now this means that the only law that should apply in the case of belligerent occupation is the law of armed conflict the law of international humanitarian law now there are some arguments and some scholars that have supported this argument so for example picked it argues and asserts that h an rights quote govern relations between the state and its own nationals the law of war those between state and enemy nationals so in this argument they are presenting a viewpoint that argues that h an rights law talks about the conflict that exists between the people of a country and the state and we can see this when we talk about for example constitutional law or public law in the united kingdom when we're talking about constitutional administrative law we're talking about the relationship between the state the state apparatus,

 and the people who are living in the state who are governed by the state and that's where h an rights law gets its authority in at least when it comes to the united kingdom and the distinction here is that the laws of war international humanitarian law exists between the state and enemy nationals either the state and another state in the case of an international conflict or the state and a non-state armed group like a separatist group or a civil war kind of situation like in a non-armed a non-international armed conflict and this argumententails that the purpose of the two areas of law are fundamentally different and so therefore the application of h an rights would be incompatible in times where international humanitarian law applies they elaborate further and they claim that there are differences in the quote degree of maturity of the instruments,

And in the procedure of their implementation of the two areas of law and this is actually quite a good point because there is a relatively big gap between the acceptance of for example the geneva conventions which are the laws of war compared to h an rights protections now it's almost universally considered to be the case that the geneva conventions are to be universally accepted they are they form part of the they form part of customary international humanitarian law this has been made clear quite relatively recently in fact if we look at the ethiopia eritrea claims commission they made it very clear that the geneva conventions apply customarily to situations of armed conflict now the same cannot be said when it comes to h an rights protections and h an rights agreements there are some examples,

Where we have not as much acceptance of or at least broad acceptance of a number of very key h an rights h an rights instruments equally male which makes a distinction between the laws of war and the laws of peace time they go on to make clear that the relations between the population and an occupying force is a relationship between a relationship zone that is hostile in nature so when we have a situation of belligerent occupation it could be one that is hostile in nature and if the relation is one of hostility then it doesn't really make sense to apply laws which are only applicable in peace time like human rights laws fundamentally the difference between a situation of belligerent occupation,

And one of non-occupation is ultimately a relationship to the population itself so the only real distinction between an occupied territory and a non-occupied territory is the relationship that the people in charge have with the population in the case of non-occupation the population has a peacetime relation to the state in control they have ability to control the state in control in power sorry and et cetera et cetera in the case of diligent occupation the population has a hostile relationship to the occupying power i think putin has been made very aware that the population of an occupied power is or at least an occupied state is very hostile to the imposing imperialist powers so the example of the ukrainian people,

Their incredibly heroic resolve in the conflict that is taking place so that's one of the arguments that we have okay another argumentt hat we have relates to the contradictions between the two bodies of law there do exist contradictions between the law of occupation in occupied territories and h an rights law now an advocate for this view is the legal theorist kenneth watkin who asserted that the use of force within an occupied territory is not always quote amenable to a h an rights framework others point specifically to contradictions that we can actually find within the relevant areas of law so let's take a very good example article 9 2 of the international covenant on civil and political rights obligates that quote anyone who is arrested shall be promptly informed of any charges against him this seems to be something that his intention or at least contradicts,

 At least doesn't seem to fit nicely with the 4th geneva convention before specifically article 78 1 of the 4th geneva convention which states that if the occupying power considers it necessary for imperative reasons of security to take safety measures concerning protected persons it may at the most subject them to assigned residents or to internment this seems to contradict almost completely with the previous human rights protection so we have a contradiction here this tension is a primary example of why h an rights can't be applied to a law of occupation if one was to accept that h an rights are necessary to a law of occupation how can we resolve this kind of contradiction a contradiction like this would h an rights come out on top and prevail over the occupation law or will occupation law,

what actually is the solution in a situation like this now in reality this isn't actually a very good argument at all neither the specific example that i cited here is particularly very good it's an argumentthat people have presented but i don't agree with it very much and i'll explain why in a minute nor is the whole idea of a contradiction being some kind of issue that's not a very good argumenteither and i'll explain why firstly specifically relating to this example of the international covenant on the protection of h an rights and the geneva convention okay well it is certainly the case that the provision in the geneva convention seems to convey less political freedom than that of two are not fundamentally incompatible firstly the geneva convention makes it clear that the process of detention that we've seen in article 781 must be done,

Quote according to regular procedure and it suggests that if we can apply h an rights law then the geneva convention will just be acceptable under the provisions of the iccpr and any other h an rights framework because it is done quote according to regular procedure that isn't a problem there secondly even if it was a problem the iccpr the international covenant on the protection of civil and political rights explicitly makes clear that a state party to the treaty has the right to derogate from their obligations in time of public emergency that is article 4 1 of the covenant on civil and political rights.