Co-application and Harmonization of IHL and IHRL: Are Rumours about the Death of Lex Specialis Premature?

Robert Kolb, Gloria Gaggioli and Pavle Kilibarda (eds), Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives (Edward Elgar, forthcoming 2020)

Hebrew University of Jerusalem Legal Research Paper No. 20-22

23 Pages Posted: 9 Jul 2020 Last revised: 20 Jul 2020

See all articles by Yuval Shany

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: June 27, 2020

Abstract

This Chapter presents some of the reasons for the emergence of the law of co-application of IHL and IHRL and discusses the principal difficulties encountered in their harmonization. Beyond questions relating to the method of applying the lex specialis rule, and the propensity of IHL bodies to resort to IHL and IHRL bodies to IHRL, each branch of law also carries with it certain ethoi, normative assumptions and institutional considerations. As a result, harmonization requires engagement with difficult, yet imperceptible value choices. Part Two reviews the road to the introduction of the lex specialis rule by the ICJ. Part Three discusses the significance of the Nuclear Weapons opinion and Part Four describes the slide from lex specialis to cumulative application of IHL and IHRL. Parts Five discusses recent trends in co-application and harmonization, including a cautious return to the lex specialis rule and developing hybrid norms. Part Six concludes.

Keywords: Lex Specialis, Interpretation, International Humanitarian Law, International Human Rights Law, Human Rights Committee, European Court Of Human Rights, International Court Of Justice

JEL Classification: K33

Suggested Citation

Shany, Yuval, Co-application and Harmonization of IHL and IHRL: Are Rumours about the Death of Lex Specialis Premature? (June 27, 2020). Robert Kolb, Gloria Gaggioli and Pavle Kilibarda (eds), Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives (Edward Elgar, forthcoming 2020), Hebrew University of Jerusalem Legal Research Paper No. 20-22, Available at SSRN: https://ssrn.com/abstract=3646936 or http://dx.doi.org/10.2139/ssrn.3646936

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

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