Humanitarian law and human rights law : the politics of distinction
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Michigan state journal of international law, Vol. 19, issue 2, 2011, p. 299-407
Alejandro Lorite Escorihuela
The author proceeds first to boiling down both bodies of rules to what could arguably be seen as their respective animating principles: distinction for humanitarian law, and non-discrimination for human rights. These separate and apparently contradictory principles are both rooted in the same political liberal tradition, which the author evokes through the use of loose social contract imagery in the description of both distinction and non-discrimination. He revisits some judicial encounters with the relationship between human rights and humanitarian law. Starting with the canonical moment when the International Court of Justice suggested the interpretive principle of lex specialis as a panacea, the author moves to an examination of the respective case law related to humanitarian law in the three regional human rights systems-Europe, the Americas and Africa. Paying close technical attention to that practice will serve to give some depth, through the variety of situations and particular position of human rights bodies, to the implicit connection between lex specialis and jurisdiction, that is, formal sovereignty. Once the political form of sovereignty is put back in place as the basis for the lex generalis / lex specialis trope-and therefore also the argumentative line between peace and war-concluding thoughts will follow concerning the political message of defragmentation.