II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
a conflict continues for many years, a State must meet its international
responsibilities for a wide range of civil, cultural, economic, political and
social rights.96
A criterion that could be used to determine which body of law should
be applied to a particular situation is that of effective control: the more
effective the control over persons or territory, the more human rights law
would constitute the appropriate reference framework. In this respect,
it has been argued that the human rights law paradigm posits effective
control over a territory and/or an individual, while the international
humanitarian law paradigm posits an absence or breakdown of control
as a result of armed conflict. As a way to inform the lex specialis principle
in the context of armed conflict, it has been suggested that the stabler the
situation, the more the human rights paradigm would be applicable; the
less stability and effective control, the more the international humanitarian
law paradigm would be applicable to supplement human rights law.97
Thus, instead of focusing solely on the existence of a conflict, the analysis
should concentrate on stability and effective control.
Clearly, there are situations in which effective control over individuals can
occur in a context of overall lack of control over a territory. This lack
of control over territory does not imply that the human rights paradigm
can be ignored. As indicated above, the Human Rights Committee has
interpreted that the question of effective control referred to in article 2.1
of the Covenant is related not only to territorial control, but also to control
over persons. In conformity with the rules of interpretation laid out in the
Vienna Convention on the Law of Treaties, the Human Rights Committee
has interpreted the provision in article 2 of the Covenant to mean that
States have human rights obligations vis-à-vis all individuals within their
fact that at the time Darfur was in a situation of internal armed conflict and that the alleged
violations were carried out by Sudanese security forces, it was found that the Government
of the Sudan had failed to respect its obligations under international human rights law.
Available from www.ohchr.org/Documents/Countries/11thOHCHR22jan09.pdf.
96
See Legal Consequences of the Construction of a Wall.
97
See A/HRC/11/31, para. 14.
63
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