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Identifying customary IHL in occupied territories on the basis of its interplay with customary international human rights law

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Chapter Summary

This chapter sets out a proposed structure of arguments that can explain the mechanism of identifying customary international humanitarian law (IHL) rules, which are applicable in occupied territory, on the basis of corresponding standards of international human rights law (IHRL). It proposes to rely on the Martens clause as a normative vehicle for transplanting customary IHRL into the sphere of IHL. Along the theoretical line suggested by Anthea Roberts, the proposed structure assumes that the process of ascertaining customary IHL can be given cogent rationalisation by Kirgis sliding scale theory and reflective methodology underlying Rawls work. The interaction of human rights standards and IHL through the normative channel of the Martens Clause in the context of occupied territories, as proposed in the chapter, is a dynamic process. This requires circumspection and meticulousness in extrapolating those customary human rights rules that are applicable in extraordinary circumstances of armed conflict and occupation.

Keywords: customary international humanitarian law (IHL); international human rights law (IHRL); law of occupation; Martens clause; occupied territories



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