A lex favorabilis ? : resolving norm conflicts between human rights law and humanitarian law
Research handbook on human rights and humanitarian law
Cheltenham ; Northampton : E. Elgar, 2013
This chapter seeks to answer the question of whether the conflicts of norms between international humanitarian law (IHL) and human rights law (HRL) can (or must) be solved in the way that is the most favourable to the individual. The principle of "the most favourable" is however still generally considered to be a rule of norm conflict confined to HRL. Accordingly, even though there is a debate in doctrine as to which norm prevails when HRL and IHL are applied simultaneously (that is, in time of armed conflict), the principle is largely ignored in his respect. This article first examines the purpose of the principle in HRL then it addresses the question of whether such a principle exists in IHL. The article finally considers the extent to which the principle could be taken as a rule of norm conflict (as far as states are concerned) between HRL and IHL norms. The answer differs depending on whether HRL and IHL are considered as two distinct bodies of law or as one body of law designed to serve human beings.