Ambivalent enforcement : international humanitarian law at human rights tribunals
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Michigan journal of international law, Vol. 37, issue 4, 2016, p. 661-715
In addition to exploring the limitations of the Inter-American System’s jurisdictional capacity to adjudicate issues of IHL, this article examines Inter-American jurisprudence in light of recent scholarly conversations regarding the relevance of the principle of lex specialis, which seeks to guide tribunals when two bodies of law may apply simultaneously, by providing for the prioritization of a specialized body of law over a general one. This concept, first articulated by the International Court of Justice (ICJ) in the Nuclear Weapons case, has proven to be the source of much scholarly consternation. As a means of addressing problems arising from the fragmentation of international law, the concept has a nice ring to it, but in practical terms, it has proven to be a terribly messy concept subject to multiple interpretations. The Inter-American system has adopted an approach to fragmentation, described here as the Interpretive Reference Resolution, which relies on reference to IHL, but does not permit the direct application of that law. This method allows tribunals to walk a delicate balance: they avoid directly finding states in violation of norms of IHL while simultaneously incorporating IHL into their analysis of HRL norms. This balancing act provides a novel solution to the problem of fragmentation between IHL and HRL. Furthermore, it has allowed human rights tribunals within the Inter-American System to tether their findings of human rights violations to IHL. This approach, this article argues, is a soft law strategy with the same potential enforcement impact as the direct finding of violations of IHL. Therefore, this article offers two contributions: first, it offers a normative framing for utilizing the abstract legal standard of lex specialis when IHL and HRL may simultaneously apply, second, the article provides an analysis of whether the use of IHL at human rights tribunals contributes to the enforcement of IHL, even when it is not binding on states.
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