Fragmentation, lex specialis and the tensions in the jurisprudence of the european court of human rights

Abstract

This chapter attempts to radicalize arguments the author has presented in previous collections. He draws on his own experience of taking Kurdish (from 1994 to 1999) and then Chechen (from 2000 to the present) cases to the European Court of Human Rights. He employs materialist and historicized account of international law and human rights for which he contends. He argues that the lex specialis doctrine as developed in recent case-law of the International Court of Justice (the ICJ) contains a category error, insofar as it brings human rights law and humanitarian law into a relationship with each other; for example, that of 'complementarity'. Chalk is being compared with, or even substituted by, cheese. He starts with an analysis of the confusion of the ICJ. He then turns to the concept of 'fragmentation of international law' as it impacts on the issue of the relationship between the two bodies of law, and then outlines what are for him the key differences between IHL and IHRL. Finally, he illustrates his position in contrast to a number of contemporary scholars: Schabas, Droege, Hampson, Abresch, Quenivet and Orakhelashvili. His conclusion is that the European Court of Human Rights has in this matter at least, consciously or not, chosen the correct path in dealing with cases that have come before it, especially the Chechen cases. © Oxford University Press 2010.