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http://ssrn.com/abstract=2195331
 
 

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The Quest for a Non-Conflictual Coexistence of International Human Rights Law and Humanitarian Law: Which Role for the Lex Specialis Principle?


Jean D'Aspremont


University of Manchester - School of Law; University of Amsterdam

Elodie Tranchez


Université du Maine

December 17, 2012

Research Handbook on Human Rights and Humanitarian Law, Robert Kolb and Gloria Gaggioli, eds., Edwar Elgar, 2013

Abstract:     
International Humanitarian Law (hereafter IHL) and International Human Rights Law (hereafter HRL) undoubtedly share some kinship. Yet, most international lawyers and judges, confronted with the simultaneous application of these two sets of norms have made a resort to the principle lex specialis derogat generali. Their use of that principle has presupposed that norms of IHL and HRL belong to the same legal order and the same legal regime and are, at the surface, in conflict with one another. This paper tries to rebut these presuppositions and showed that the relations between IHL and HRL ought to be construed in terms of competition rather than conflict. Drawing on the idea of competition between these two sets of rules, this paper subsequently seeks to evaluate the contemporary uses of the principle lex specialis derogat generali – particularly witnessed in the case-law of the ICJ – to calibrate the systemic integration of international law. It concludes that such an unorthodox use of that principle does little to alleviate the uncertainty inherent in the competitive character of the relationship between IHL and HRL.

Number of Pages in PDF File: 28

Keywords: International Law, Human Rights, Humanitarian Law, Lex Specialis, Systemic Integration, Interpretative Standard, Conflict of Norms, Nuclear Weapons, Hierarchy, Fragmentation of International Law, Competition of norms

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Date posted: January 2, 2013  

Suggested Citation

d'Aspremont, Jean and Tranchez, Elodie, The Quest for a Non-Conflictual Coexistence of International Human Rights Law and Humanitarian Law: Which Role for the Lex Specialis Principle? (December 17, 2012). Research Handbook on Human Rights and Humanitarian Law, Robert Kolb and Gloria Gaggioli, eds., Edwar Elgar, 2013. Available at SSRN: http://ssrn.com/abstract=2195331

Contact Information

Jean D'Aspremont (Contact Author)
University of Manchester - School of Law ( email )
Manchester M13 9PL
United Kingdom
University of Amsterdam ( email )
Amsterdam Centre for International Law
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands
HOME PAGE: http://home.medewerker.uva.nl/j.daspremont/
Elodie Tranchez
Université du Maine ( email )
72085 Le Mans Cedex 9
France
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