Shany: Human Rights Norms Applicable in the Situation of Armed Conflict: Beyond the Lex Generalis/Lex Specialis Framework

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted Human Rights Norms Applicable in the Situation of Armed Conflict: Beyond the Lex Generalis/Lex Specialis Framework (Japanese Yearbook of International Law, forthcoming). Here's the abstract:

The interplay between international humanitarian law (IHL) and international human rights law (IHRL) continues to hold the attention of experts and decision-makers. The instability of existing law and practice relating to co-application, underlies efforts to move beyond the lex specialis/lex generalis framework – either by returning to the pre-co-application status quo or by developing new hybrid norms that draw on contents found in both IHL and IHRL. Both of these moves are complicated, however, by the growing relevance of an additional body of international law – jus ad bellum ¬– to situations of armed conflict.

The present article tracks the main fluctuations in international law doctrine concerning the co-application of IHL and IHRL, as reflected inter alia in the caselaw of international courts and tribunals, the work of UN human rights treaties bodies and the academic literature on the topic. It shows that, contrary to accepted wisdom in the field, the lex generalis/specialis framework serves as the starting point, but certainly not the end point, of the legal analysis, and that there is growing support for the emergence of new approaches to the interplay between IHL and IHRL. These new approaches are also informed, inevitably, by new doctrinal developments relating to the interplay between IHRL and jus ad bellum.

Part 1 surveys the main normative developments leading up to the emergence of the doctrine of co-application in the 1996 International Court of Justice (ICJ) Nuclear Weapons advisory opinion. Part 2 describes the changes in the application of the lex specialis rule in the period after the advisory opinion. Part 3 discusses the move beyond the lex generalis/specialis framework represented by attempts to limit co-application and to develop new hybrid rules, and Part 4 considers the impact of the co-applicability of IHRL and jus ad bellum on lex generalis/specialis framework.