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

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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

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

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

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