the genesis of lex specialis in international law
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The Genesis of Lex Specialis Author: Marko Milanovic
When it comes to describing the relationship between human rights and
international humanitarian law, the lex specialis principle is frequently
taken for granted, as if it has somehow always been there, carved in
stone. But what is its actual genesis? By genesis I do not mean its
ancient history. Yes, it was in the Digest of Justinian. But, honestly, who
cares? We have little or no idea of what exactly the lawyers of the
Roman and Byzantine empires meant by the expression and how they
applied it in practice, and indeed there are several different ways of
conceptualizing lex specialis.
My question is rather this: when did we, the community of international
lawyers, start using this language to describe the relationship between
IHL and IHRL? The timeframe for answering that question is necessarily
more limited and easier to manage, since IHRL did not become a part of
public international law until after the Second World War. I am
obviously too young to have direct experience of this, but my impression
has been that during the first fifty years or so of their co-existence very
little thought was given to how IHL and IHRL would interact, and when
the issue was discussed it was generally not framed in terms of lex
specialis. My hypothesis is thus that the term entered common parlance
among the international lawyers who have dealt with the issue only after
the end of the Cold War, and specifically only after the ICJs
1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself
first used the term:
In principle, the right not arbitrarily to be deprived of ones life
applies also in hostilities. The test of what is an arbitrary
deprivation of life, however, then falls to be determined by the
applicable lex specialis, namely, the law applicable in armed
http://www.ejiltalk.org/the-genesis-of-lex-specialis/http://www.ejiltalk.org/author/guestcontributor/
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conflict which is designed to regulate the conduct of hostilities.
Thus whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of
life contrary to Article 6 of the Covenant, can only be decided by
reference to the law applicable in armed conflict and not deduced
from the terms of the Covenant itself.
To prove or disprove this hypothesis, which is what I am doing in a
paper Im writing right now, I need to do two things. First, I need to
establish how the Court itself got the idea to use the lex
specialis principle to describe the relationship between the rules of IHL
and IHRL. Was it complete innovation on its part? Did it come from the
pleadings of some of the participants in the advisory proceedings? Or did
it come from generally accepted scholarship on the issue? Second, I need
to look at the scholarship itself, specifically those works that examined
the issue before the Nuclear Weapons opinion and immediately after it.
The pre-1996 scholarship I will leave aside for the purpose of this post,
but from what Ive read so far there are few, if any references to the lex
specialis principle as a solution to normative conflicts between IHL and
IHRL (I will obviously very much appreciate it if readers could point me
to any such references in scholarship in whatever language). But Ive
read through all of the pleadings in the two nuclear weapons cases (the
WHO and GA requests), both written and oral. And out of the 40 or so
states that appeared before the Court in the two cases, do you know how
many referred to thelex specialis principle? Just one the United
Kingdom.
In the first round of the WHO case the UK did not even discuss the
human rights issue. When it came to the second round of written
pleadings, which were due at the same time as the first round of
pleadings for the General Assembly Nuclear Weapons case, the UK
decided to give its comments on the submissions in the WHO case in its
http://www.icj-cij.org/docket/files/95/8802.pdf
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written statement in Nuclear Weapons, i.e. that single document was
both the second submission in the WHO case and the first in Nuclear
Weapons. The UK now did extensively discuss human rights and
environmental law, arguing that the issue was not the compatibility of
nuclear weapons with these legal regimes in abstracto, but whether any
of the rules of the law of human rights or the law on environmental
protection can be construed, in accordance with the general principles
stated above, as prohibiting the use or threat of use of nuclear
weapons when carried out by way of legitimate self-defence. (WS, para.
3.98 (emphasis in original)).
In that regard, the UK noted that Article 15(2) ECHR explicitly referred
to derogations from the right to life for deaths resulting from lawful acts
of war, and argued that:
Although the International Covenant on Civil and Political Rights
contains no provision equivalent to Article 15(2) of the European
Convention, Article 6(1) prohibits only the arbitrary deprivation
of life. If the Covenant is applicable at all to the taking of life in
the context of an armed conflict, it is necessary to determine what
the term arbitrary means in that context. Since the taking of life
is an inescapable feature of the conduct of armed conflict and
since it has never seriously been suggested that the Covenant
outlaws the use of force by way of national self-defence, the
reference to arbitrary deprivation of life must contain the means
for distinguishing between those acts of taking life in armed
conflict which are compatible with Article 6 of the Covenant and
those which are not. The only sensible construction which can be
placed on the term arbitrary in this context is that it refers to
whether or not the deliberate taking of life is unlawful under that
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part of international law which was specifically designed to
regulate the conduct of hostilities, that is the laws of armed
conflict. On that basis, the use of a weapon to take life in armed
conflict could only amount to an arbitrary deprivation of life, for
the purposes of Article 6 of the Covenant, if it was contrary to the
laws of armed conflict but not otherwise.
(WS, para. 3.101)
After briefly looking at the travaux of the Covenant and the work of the
Human Rights Committee, the UK concluded its submissions on human
rights as follows:
The protection given by the law of human rights does nor,
therefore, lead to a different conclusion regarding the legality of
the use of nuclear weapons from that provided by the law of
armed conflict. Since the law of human rights is concerned
primarily with the protection of human rights in peacetime,
whereas the law of armed conflict is a lex specialis designed to
regulate the conduct of hostilities, it is entirely appropriate that the
human rights agreements should, in effect, refer to the law of
armed conflict in order to determine whether or not any particular
instance of the deprivation of life in wartime is arbitrary. The
same principle applies,a fortiori, in respect of the protection of
other human rights.
(WS, para. 3.108)
This, then, was the very first appearance of lex specialis in the written
pleadings, and indeed theonly such appearance in the UKs written
statement. Notably, neither of the paragraphs I have just quoted in full
provide any references or citations to authority of any kind. The UKs
counsel obviously did their job well, since the language of the UKs
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submissions is clearly reflected in paragraph 25 of the Courts Nuclear
Weapons opinion. This is, to my mind, undoubtedly the intellectual
genesis of the Courts holding. In the combined oral hearings in the two
cases no state, not even the UK, nor France, nor the United States, nor
Russia, mentioned lex specialis, although the UK did articulate a version
thereof without the Latin: CR 1995/34, at 43-44.
So why is this relevant? I do not want to go here into the merits or
demerits of lex specialis and its various different conceptions. My only
point is this: despite the Latin veneer of antiquity, and whatever its
merits, the lex specialis principle was NOT part of mainstream thinking
on the relationship between IHL and IHRL before the 1996 opinion
(assuming there was any mainstream thinking on this issue in the first
place). If it was, one would have expected more than one, single, isolated
and conclusory reference to the principle in the hundreds of pages of
written and oral pleadings before the ICJ.
http://www.icj-cij.org/docket/files/95/5947.pdfhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1531596
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