In the following answer I will try to assess to what extent are economic, social and cultural rights guaranteed in occupied territories under international humanitarian and international human rights law. For specificity, I have chosen the right to education for ethnic Georgians living in the region of Gali in Abkhazia, Georgia, which is occupied to date by Russian Federation.
During the war of 2008 between Georgia and Russian Federation, Russia occupied parts of sovereign territory of Georgia, including Abkhazia.1 It is reflected in human rights reports, that ethnic Georgian population is denied the right to education, as the Georgian schools are being closed down and the teachers are restricted from using Georgian language or Georgian textbooks, in favour of Russian language and Russian textbooks.2 For the mostly Georgian population in Gali region, that means essentially denial of right to education. Children, as well as teachers do not possess relevant language skills (Russian), which results in inadequate learning process.3
According to Common Article 2 of the Geneva Conventions (1949), humanitarian law applies, amongst other cases, to the cases of partial or total occupation. According to Article 42 of the Hague Regulations (1907), the territory is considered occupied, when it is actually placed under the authority of the hostile army. Additionally, occupation extends only to the territory where such authority has been established and can be exercised. It can be said, that Abkhazia is occupied by Russian Federation and thus, IHL applies.
Under IHL, Geneva Convention IV Article 50 on the children concerns the right to education. It states, that the Occupying Power should cooperate with national and local authorities to 'facilitate the proper working of all institutions devoted to the care and education of children.' But the IHL does not spell out any further obligations for the Occupying Power in terms of ensuring the right to education in the occupied territories.
Right to education is guaranteed in numerous human rights conventions. International Convention on Economic Social and Cultural Rights states in Article 13 (2) (a) that 'primary education shall be compulsory and available free for all.' It contains further obligations towards secondary and higher education in the same article. Furthermore, the International Convention on the Rights of the Child, in addition to the right to education states in Article 29 (1) that ' the education of the child shall be directed to […] (c) The development of respect for the child's […] own cultural identity, language and values […].' European Convention on Human Rights and Fundamental Freedoms guarantees the right to education in Article 2 of the First Protocol to the Convention as it states, that 'No person shall be denied the right to education'.
Thus, it can be said, that in the region of Gali of occupied territory of Georgia, Abkhazia, the Occupied Power, the Russian Federation has obligations from both, IHL and IHRL with regards to ensuring the right to education.
It is widely accepted, that human rights obligations apply extraterritorially when there is a case of military occupation.4 However, determining the extent of application of economic, social and cultural rights might pose slight difficulties. The issue of application of economic, social and cultural rights during armed conflict and in cases of belligerent occupation has received little attention, in addition to overall restricted enforcement power even during peacetime.5
One possibility to determine to what extent does human rights law (including ESC rights) apply on an occupied territory is to take 'contextual approach'. Noam Lubell argues in his article, that it is too unrealistic, to ask guaranteeing of all human rights from an occupying power. On the other hand, demanding no obligations would create a legal vacuum. The solution could be determining the substantive part of the obligations looking at the context. If the Occupying Power is in the de facto control of the right, it is also obliged to uphold them.6 However, the obligation not to interfere with the rights applies in all cases.7 For example, in the Wall case, where the International Court of Justice argued, that ICESCR applied to Israel in the Occupied Territories only to the extent as the competence had not been transferred to Palestinian authorities, in addition to the obligation not to interfere.8 Thus, context should determine the substance of the obligations, including legal and factual factors. But, even if the substance of the obligation might be modified, that does not mean, that it is removed.9
To determine how the contextual approach works for economic, social and cultural rights, it might be useful to differentiate between temporary and long-term occupation. During temporary occupation the Occupying Power can not be expected to invest in big projects and is obliged to guarantee minimum rights. However, when the occupation is prolonged, it is not enough anymore to satisfy basic needs of the population and the Occupying Power should assume greater responsibilities.10 As to the non-discrimination, the Occupying Power is obliged to treat people within the occupied territory in a same way but there is no obligation to treat them in the same way as its own nationals on its sovereign territory.11
Thus the relationship between IHL and IHRL in Economic Social and Cultural rights is viewed as that of human rights being more specific and providing further details for the obligations spelled out very briefly in Geneva Conventions.12
The other possibility to look at the relationship of IHL and IHRL in the field of economic, social and cultural rights is to differentiate between core obligations and obligations for progressive realization. Sylvain Vité argues, that while core obligations of ESC rights and laws on occupation overlap, ESC rights provide further obligations for the protracted occupation, that are not included in IHL.13 Underlying idea is that ICESCR contains the obligation of progressive realization of the rights (Article 2(1) ICESCR), but as the Committee has interpreted, minimum core obligations apply from the very beginning.14
A related issue is the principle of continuity of the legal system in the law of occupation. IHL places restrictions on the Occupying Power with regard to changes to the laws of the territory (Hague Regulations Art. 43). The Occupying Power should respect the laws of the territory, unless absolutely prevented to do so. Even though it has been interpreted away as being not a very stringent obligation,15 it still sets a limit to the activities of the Occupying Power. The Occupying Power is obliged to set up the whole system, which will not involve making changes to legal and institutional structure of the country and ensure that it is working in all of it's aspects.16
In a third approach, principle of systemic integration is preferred, where IHL and ICESCR are complementary with each other and the one with greater protection prevails when they overlap.17
Looking at the General Comments and Concluding Observations of the CESCR, it can be argued, that IHL is used to broaden economic social and cultural rights during armed conflicts.18 For example, the right to water, which is not explicitly mentioned in ICESCR, but can be derived from IHL.19 Giacca refers to it as a "humanitarian broadening phenomenon".20 But the Committee is not explicitly consistent in all of its General Comments to make general conclusion on how the Committee views relationship between IHL and ICESCR, rather the analysis is dependent on the context.21
ICJ adopts analysis of human rights and humanitarian law violations in a way that it deals with both of them separately.22 It is the Court's opinion, IHL and IHRL overlap in certain cases, but in certain instances they don't.23 Thus a separate analysis of IHL and IHRL is necessary to determine which of them is violated.
Looking at the situation of ethnic Georgians in Abkhazia, complementing analysis with both IHL and IHRL might come useful to provide best protection.
Even though IHL does not spell out broadly the right to education, it does mention it in Art.50 GCIV, which can be a starting point.
There is a principle of continuity of the legal system (Hague Regulations Art.43) which should prevent the occupying power to make changes unless absolutely necessary. Thus, changing the language of education in Georgian schools can be viewed to be violation of this provision.
Human rights law can be used to determine the content of the right to education in IHL using ICESCR, CRC and the observations of the treaty bodies. Thus, even though IHL does not provide for the education in the person's mother tongue, Convention on the Rights of the Child, Article 29 (1) ( c ) does.
Thus, complementarity can be used in both ways, IHL defining ESC rights and ESC rights defining IHL as none of them will be enough to fully assess the situation of economic, social and cultural rights in a situation of occupation or armed conflict.
The approach of ICJ is to deal with human rights and humanitarian law separately and determine violation of one or the other. This approach is not to be favoured, as that would leave very little content in the right to education protected by IHL. Additionally, it would make assessment of ESC rights during the occupation harder, because of different context. ESC rights would be deprived of some useful tools to establish violation of the ESC rights.
To sum up, it could be said, that the right to education of ethnic Georgians living in the occupied territory of Abkhazia is violated as they can not receive primary and secondary education in their own language, as they used to before. The actions on the occupied territories leading to the violation should be assessed in light of IHL and ICESCR and CRC, as complementing each other and not separately in order to ensure maximum protection.