Edited by Robert Kolb and Gloria Gaggioli
Chapter 12: The quest for a non-conflictual coexistence of international human rights law and humanitarian law: which role for the lex specialis principle?
For a long time, international law suffered from a dearth of rules and was deemed particularly underdeveloped in some fields. Nowadays, in some areas, international law is beset by the exact opposite curse, that is, of being awash with ‘too many rules’. The protection of individuals is very symptomatic of this phenomenon, for individuals now come under the protection of several sets of rules. Surely, overabundance is not better than a dearth of rules. In both situations, predictability as well as the Rule of Law are put at risk, as is the – equally fundamental – requirement of some elementary effectivité, without which there can hardly be a legal system properly so called. This chapter zeroes in on the simultaneous application of different sets of rules meant to ensure the protection of individuals, and, more particularly, on the frictions that may arise between International Humanitarian Law (hereafter IHL) and International Human Rights Law (hereafter HRL). For a long time such frictions have remained the object of debates exclusively restricted to academic circles when their respective scope of application was considered not to overlap. Yet, the articulation between HRL and IHL has nowadays turned into a matter of great controversy, especially following the unprecedented extension of the scope of application ratione loci, ratione temporis and ratione materiae of HRL, which came to embrace situations previously regulated by only IHL. Indeed, the existence of an armed conflict or hostilities, that is, the classical obstacle to the application of HRL in situations regulated by IHL
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