The lost origins of lex specialis : rethinking the relationship between human rights and international humanitarian law
Theoretical boundaries of armed conflict and human rights
New York : Cambridge University Press, 2016
In this chapter Marko Milanovic outlines the current state of the debate on the relationship or interaction between international human rights law (IHRL) and international humanitarian law/law of armed conflict (IHL). He sets out the extant points of controversy, their driving factors and the logical order in which they should be addressed in order to advance the debate further. After providing a broad overview of the debate, he looks at one of its key concepts – the lex specialis principle. He shows that, despite the Latin veneer of antiquity, scholars have generally started using lex specialis to describe the relationship between IHL and IHRL only after the ICJ’s 1996 Nuclear Weapons advisory opinion. Rather than being some kind of unassailable orthodoxy, lex specialis is a principle whose effects and utility need to be critically re-examined.