Chapter

Co-application and harmonization of IHL and IHRL : are rumours about the death of lex specialis premature?

Yuval Shany

Research handbook on human rights and humanitarian law : further reflections and perpectives

Cheltenham : E. Elgar, 2022

p. 9-28

English

The chapter presents some of the reasons for the emergence of the law of co-application of IHL and IHRL and discusses the principal difficulties encountered in their harmonization. Beyond questions relating to the method of applying the lex specialis rule, and the propensity of IHL bodies to resort to IHL and IHRL bodies to IHRL, each branch of law also carries with it certain ethoi, normative assumptions and institutional considerations. As a result, harmonization requires engagement with difficult, yet imperceptible value choices. Part Two reviews the road to the introduction of the lex specialis rule by the ICJ. Part Three discusses the significance of the Nuclear Weapons opinion and Part Four describes the slide from lex specialis to cumulative application of IHL and IHRL. Parts Five discusses recent trends in co-application and harmonization, including a cautious return to the lex specialis rule and developing hybrid norms. Part Six concludes.

• Research handbook on human rights and humanitarian law : further reflections and perspectives / Edited by Robert Kolb, Gloria Gaggioli and Pavle Kilibarda