Exclusivity: the misconceived idea of lex specialis

Abstract

Separation and self-contained regimes From a strictly separatist position, human rights and humanitarian law are fundamentally different and irreconcilable to the extent that there can be no meaningful debate on human rights in armed conflict. The different historic development of the two systems, the dissimilar nature of their respective norms and the different goals they pursue in law and policy keep them apart and prevents any discussion on their simultaneous applicability for theoretical as well as practical reasons. It was asserted that the law of armed conflict is so radically different from international human rights law in its origin, foundation, nature, object and content that the two are not only diametrically opposed but that neither can be derived from the other. Such a position maintains that international humanitarian law and international human rights law neither share a common history nor common goals but have a fundamentally different legal structure and “no over-reaching axiology, no value system that unifies the objectives of these fields of international law.” They are mutually exclusive. Such a complete separation of international humanitarian law and international human rights law has been suggested only rarely. Where a separation was argued for, metaphorical concepts such as presenting international humanitarian law and international human rights law as “two curtains” were introduced instead. Each of these curtains was meant to shield the individual from threats in different moments: international humanitarian law in times of war and international humanitarian law in times of peace. But even this suggestion was mitigated by the argument that during armed conflicts the curtain of international human rights law (i.e., the two UN human rights Covenants) would not be drawn back completely but only “largely.”