The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship Between International Human Rights Law and the Laws of Armed Conflict

Abstract

The maxim lex specialis derogat legi generali is widely accepted as constituting a general principle of law. It entails that, when two norms apply to the same subject matter, the rule which is more specific should prevail and be given priority over that which is more general. In the international legal system, the concept is frequently resorted to by courts and tribunals as a tool of legal reasoning in order to resolve real or perceived antinomies between norms. One area in which the notion of lex specialis is frequently invoked is in the articulation of the relationship between international human rights law and international humanitarian law in situations of armed conflict. This has particularly been the case following the use of the term by the International Court of Justice in the Nuclear Weapons and The Wall Advisory Opinions. On closer analysis, it appears that those seminal decisions of the International Court of Justice, in using the language of lex specialis, did not intend that international humanitarian law should prevail over international human rights law. Rather, when it comes to the relationship between these two branches of law, what is commonly referred to as an application of the lex specialis principle is in reality no more than an application of the principle that treaties should be interpreted in the light of any relevant rules of international law binding on the parties. The chapter suggests that, due to the implications that international humanitarian law prevails over international human rights law, the language of lex specialis should be abandoned when discussing the relationship between the two bodies of law.