Milanovic: The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law

Marko Milanovic (Univ. of Nottingham - Law) has posted The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law (in Theoretical Boundaries of Armed Conflict and Human Rights, Jens David Ohlin ed., forthcoming). Here's the abstract:

In this paper I try to outline 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). The topic is well-worn and I will not recapitulate the basics. I will rather try to set out as clearly as possible 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, I will look at one of its key concepts – the lex specialis principle. I will show 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. Indeed, we are dealing not with one, but with three distinct versions of the principle, which rest on different rationales and produce different consequences. In that regard, there have been enthusiasts and sceptics even since the issue of the relationship between IHL and IHRL has arisen, and that is a good and natural thing. I do not propose to somehow fully reconcile these two camps, although I would submit that the differences between them are not as stark as is sometimes thought. But the main prerequisite for the debate to move forward is that we speak a common language and have conceptual clarity, and advancing this clarity is precisely this paper's primary purpose.