Articulating international human rights and international humanitarian law : conciliatory interpretation under the guise of conflict of norms-resolution
The interpretation and application of the European Convention of Human Rights : legal and practical implications
Leiden ; Boston : M. Nijhoff, 2013
This chapter seeks to challenge the principle "Lex specialis derogat generali" elevated to the cornerstone of articulation of international humanitarian law (IHL) and human rights law (HRL) by both case-law and legal scholarship. It is argued that judges and legal experts do no 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 most judges and experts apply a principle of interpretation of international 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).
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