Articulating International Human Rights and International Humanitarian Law: Conciliatory Interpretation Under the Guise of Conflict of Norms-Resolution
THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE UK HUMAN RIGHTS ACT, Malgosia Fitzmaurice, Panos Merkouris, eds., Brill, Martinus Nijhoff Publishers, 2011
36 Pages Posted: 27 Oct 2011
Date Written: October 27, 2011
This chapter seeks to challenge the mainstream use of the principle Lex specialis derogat generali to articulate HRL and IHL. It is argued here that judges and legal expert do not actually articulate HRL and IHL along the lines of that principle but rather engage in a systemic integration of these two sets of rules. More specifically, it is submitted here that, under the guise of the principle Lex specialis derogat generali, most judges and experts apply a principle of interpretation of international law, that is the principle of systemic integration of international law. The ambition of this chapter is accordingly to shed some light on the actual manner in which HRL and IHL have been articulated and dispel the impressions that are conveyed by the professed use of conflict-resolution mechanisms. This chapter will start by recalling the elementary features of the principle of systemic integration of international law (1) and those of the principle of Lex specialis derogat generali (2) with a view to showing that each of them constitute a very specific mechanism that does not serve the same purpose as the other. The chapter will then demonstrate how, in the context of the simultaneous application of IHL and HRL, these two mechanisms have been conflated, the systemic integration principle being applied under the guise of the Lex specialis derogat generali (3). Eventually, this chapter will try to unearth some of the reasons underlying the trompe l’oeil created by the use of the Lex specialis derogat generali to carry out a systemic integration of IHL and HRL (4).
Keywords: Public International Law, Human Rights, Humanitarian Law, Conflicts of Norms, Lex specialis derogat generali, Systemic integration of International Law, Conciliatory Interpretation, Article 31 of the Vienna Convention on the Law of Treaties, Principles of interpretation of international law
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