Edited by Robert Kolb and Gloria Gaggioli
Chapter 13: A lex favorabilis? Resolving norm conflicts between human rights law and humanitarian law
The purpose of this chapter is to examine the relevance of the ‘principle of the most favourable’ in the relationship between international humanitarian law (IHL) and human rights law (HRL), especially when IHL and HRL norms conflict with one another. In other words, this chapter seeks to answer the question of whether the conflicts of norms between IHL and HRL can (or must) be solved in the way that is the most favourable to the individual. This solution has been put forward, in varying ways, by several authors and international human rights institutions.1 However, the principle of the primacy of the most favourable norm is still generally considered to be a rule of norm conflict confined to HRL. Accordingly, even though there is a debate in doctrine as to which norm prevails when HRL and IHL are applied simultaneously (that is, in time of armed conflict), the ‘principle of the most favourable’ is largely ignored in this respect. A study on the meaning and implications of the principle in international law was thus needed to assess its effect on conflicting obligations flowing from HRL and IHL. Since the ‘principle of the most favourable’ is usually considered to be specific to HRL, this article first examines the purpose of the principle in HRL (section 2). Then, it addresses the question of whether such a principle exists in IHL (section 3). Finally, the article considers the extent to which the principle could be taken as a rule of norm conflict (as far as States are concerned)
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