Abstract
The maxim lex specialis derogat legi generali is widely accepted as constituting a general principle of law. It entails that, when two norms apply to the same subject matter, the rule which is more specific should prevail and be given priority over that which is more general. In the international legal system, the concept is frequently resorted to by courts and tribunals as a tool of legal reasoning in order to resolve real or perceived antinomies between norms. One area in which the notion of lex specialis is frequently invoked is in the articulation of the relationship between international human rights law and international humanitarian law in situations of armed conflict. This has particularly been the case following the use of the term by the International Court of Justice in the Nuclear Weapons and The Wall Advisory Opinions. On closer analysis, it appears that those seminal decisions of the International Court of Justice, in using the language of lex specialis, did not intend that international humanitarian law should prevail over international human rights law. Rather, when it comes to the relationship between these two branches of law, what is commonly referred to as an application of the lex specialis principle is in reality no more than an application of the principle that treaties should be interpreted in the light of any relevant rules of international law binding on the parties. The chapter suggests that, due to the implications that international humanitarian law prevails over international human rights law, the language of lex specialis should be abandoned when discussing the relationship between the two bodies of law.
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- 1.
For discussion of the origins of the maxim, see, e.g., Lindroos (2005), p. 35.
- 2.
The precise operation of the principle is of course far more sophisticated and nuanced than this basic description implies and there exists a wealth of literature which attempts to identify the exact contours of the principle, including, e.g., when two rules should be regarded as regulating the same subject-matter. For an overview of the principle and discussion of many of these issues from the perspective of international law, see Koskeniemi (2004); International Law Commission Study Group on Fragmentation (2006a), pp. 30–114; see also Prud’homme (2007). For a jurisprudential discussion, see, e.g., Zorzetto (2013).
- 3.
Statute of the International Court of Justice (San Francisco, 24 October 1945), 25 UNTS 993. The provision in question formally constitutes merely a definition of the law which the ICJ is to apply in fulfilling its function of deciding “in accordance with international law such disputes as are submitted to it” [ibid., Article 38(1)].
- 4.
Statute of the Permanent Court of International Justice (Geneva, 16 December 1920), League of Nations, Treaty Series 6, 390. The drafting history of the provision reveals that the intention of the Advisory Committee of Jurists in including general principles amongst the sources of law which the PCIJ could apply was in large part to avoid any possibility of a non liquet resulting from the silence of the positive rules of conventional or customary international law: see the discussion of the debate in the Advisory Committee in Pellet (2012), pp. 739–742 (paras. 21–33) and 832 (para. 250).
- 5.
See Wolfrum (2011), para. 36; Pellet (2012), pp. 833–834 (para. 253). In a number of cases, the Court referred to the concept in summarizing the arguments of the parties, but then avoided taking any firm position as to whether the particular principle invoked qualified as a general principle within Article 38(1)(c) on other grounds: see, e.g., Right of Passage over Indian Territory, Merits [1960] ICJ Rep. 6, p. 43; North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1969] ICJ Rep. 3, p. 21 (para. 17). Notwithstanding the lack of express reference to Article 38(1)(c), the Court (and individual judges) have frequently invoked “general principles”: for discussion, see Pellet (2012), pp. 838–839 (para. 265).
- 6.
In South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) [1966] ICJ Rep. 6, p. 47 (para. 88), the Court denied that the “actio popularis”, or right resident in any member of a community to take legal action in vindication of a public interest was at that time recognized as a matter of public international law, and held that it could not be “imported” into international law as constituting a general principle within the meaning of Article 38(1)(c).
- 7.
Pellet (2012), p. 834 (para. 254).
- 8.
Ibid., p. 834.
- 9.
The principle lex specialis generalibus derogat was indeed one of the examples given during the drafting of the provision which become Article 38(1)(c) of the Statute of the PCIJ; see Cheng (1953), p. 26, citing PCIJ, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 16th–July 24th, 1920, with Annexes, 1920, p. 337. Cf. however Matz-Lück (2010), para. 14.
- 10.
Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331. The principle of lex posterior as a principle of coordination is given effect in Article 30(3) of the VCLT as regards the relationship between subsequent treaties dealing with the same subject matter; see also Article 59 of the VCLT (Termination or suspension of the operation of a treaty implied by the conclusion of a later treaty). The lex superior principle finds expression in the provisions relating to the concept of jus cogens in Articles 53 and 64 of the VCLT; see also Article 103, Charter of the United Nations (San Francisco, 26 June 1945), 1 UNTS 16.
- 11.
International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts (2001), in Report of the International Law Commission, 53rd Session, ILC Yearbook 2001, vol. II, part two, pp. 26–143. See similarly, Article 64 of the ILC’s Articles on Responsibility of International Organizations (2011), in Report of the International Law Commission, 63rd Session, UN Doc. A/66/10 (2011), chapter V. Cf. Article 17 of the ILC’s 2006 Articles on Diplomatic Protection, in Report of the International Law Commission, 58th Session, ILC Yearbook 2006, vol II, part two, p. 24.
- 12.
See, e.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ Rep. 18, p. 38 (para. 24).
- 13.
The point was implicitly recognized by the ICJ in Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep. 14. In the specific circumstances of that case, the Court ruled solely on the basis of the relevant obligations of the United States under customary international law, which were the only obligations over which it had jurisdiction. Nevertheless, it emphasized that, where parallel rules exist as a matter of both custom and conventional obligation, “in general, treaty rules being lex specialis, it would not be appropriate that a State should bring a claim based on a customary-law rule if it has by treaty already provided means for settlement of such a claim” [ibid, p. 137 (para. 274)]. For a particularly clear statement of the point (although without express reference to lex specialis), see Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep. 213, p. 233 (para. 35). For an application of the lex specialis principle in the context of investment treaty arbitration, see, e.g., García Armas and García Gruber v. Venezuela, Decision on Jurisdiction, 15 December 2014, paras. 158 and 167–175.
- 14.
As put by the Tribunal in the OSPAR Convention arbitration, “our first duty is to apply the OSPAR Convention. An international Tribunal will also apply customary international law and general principles unless and to the extent that the parties have created a lex specialis” (Dispute Concerning Access to Information under Article 9 of the OSPAR Convention, Final Award, 2 July 2003, RIAA, vol. XXIII, 59, p. 87 (para. 84). The Tribunal added, ibid, that “even then, it must defer to a relevant jus cogens with which the Parties’ lex specialis may be inconsistent”. See also Amoco International Finance Corporation v. Iran, Iran-US C.T.R, vol. 15, 1987-II, p. 222 (para. 112).
- 15.
For instance, in the Beagle Channel arbitration, the Court of Arbitration had recourse to the principle as a subsidiary ground for rejecting the existence of a supposed conflict between the terms of Articles II and III of the Boundary Treaty of 23 July 1881 between Chile and Argentina insofar as those provisions attributed particular territory to one or other of the Parties. In that regard, the Court of Arbitration observed that: “all conflicts or anomalies can be disposed of by applying the rule generalia specialibus non derogant, on which basis Article II (generalia) would give way to Article III (specialia), the latter prevailing”; Beagle Channel Arbitration (Argentina/Chile), Award of 18 February 1977, RIAA, vol. XXI, 53, p. 100 (para. 39).
- 16.
Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols no. 11 and no. 14 (Rome, 4 November 1950).
- 17.
See, e.g., Nikolova v. Bulgaria, judgment of 25 March 1999, ECtHR, Rep. 1999-II, p. 25, para. 69. For a recent restatement of the relationship between the remedy enshrined in Article 5(4) and the more general right to an effective remedy under Article 13, see A. v. United Kingdom (App. no. 3455/05), ECtHR [GC], judgment of 19 February 2009, para. 202; see also ibid., para. 225, where the Court held that, in light of the findings as to Art. 5(4), it was not necessary separately to examine applicants’ complaint under Article 13. Cf., however, Georgia v. Russia (I) (App. no. 13255/07), ECtHR [GC], judgment of 3 July 2014, paras. 210–16.
- 18.
See, e.g., Yankov v. Bulgaria (App. no. 390847/97), ECtHR, judgment of 11 December 2003. By contrast, the Court has rejected the argument that Article 5(5) of the ECHR, which provides that everyone who has been the victim of an arrest or detention in contravention of Article 5, “shall have an enforceable right to compensation”, constitutes lex specialis vis-à-vis the general power of the Court, contained in what is now Article 41 of the ECHR, to grant just satisfaction; see, e.g., Neumeister v. Austria (Article 50) (App. no. 1936/63), Series A, no. 17 (1974), paras. 29 and 30. The ECtHR has also invoked the lex specialis principle in order to justify examining complaints relating to an interference with freedom of assembly only under Article 11, despite the fact that Article 10 was, at least potentially, also implicated; see, e.g., Ezelin v. France, judgment of 26 April 1991, Series A, no. 202 (1991), para. 35; Djavit An v. Turkey, judgment of 20 February 2003, ECtHR, Rep. 2003-III, p. 251, para. 39.
- 19.
Convention on the prohibition of the use, production, stockpiling, and transfer of anti-personal mines and on their destruction (Ottawa, 18 September 1997), 2056 UNTS 241.
- 20.
ILC Study Group on Fragmentation (2006a), para. 111.
- 21.
UNCLOS Annex VII Arbitral Tribunal, Southern Bluefin Tuna (Australia-Japan; New Zealand-Japan), Award on Jurisdiction and Admissibility, 4 August 2000, RIAA, vol. XXIII, 1, p. 40 (para. 52).
- 22.
Ibid.
- 23.
ILC Study Group on Fragmentation (2006b), para. 5.
- 24.
Ibid. see also ILC Study Group on Fragmentation (2006a), pp. 34–64, para. 55 ff.
- 25.
ILC Study Group on Fragmentation (2006a), para. 88 (footnotes omitted).
- 26.
Ibid. para. 97.
- 27.
- 28.
- 29.
International Covenant on Civil and Political Rights (New York, 16 December 1966), 999 UNTS 171.
- 30.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep. 240 (hereinafter “Nuclear Weapons”), para. 25.
- 31.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep. 136 (hereinafter “The Wall”).
- 32.
Ibid., para. 106.
- 33.
Ibid.
- 34.
Ibid.
- 35.
See Milanovic (2014b).
- 36.
In his review of the literature predating the Nuclear Weapons Advisory Opinion (Ibid.), however, Milanovic omits to mention the use of lex specialis in this sense in Bothe et al. (1982), p. 619.
- 37.
See Milanovic (2014b).
- 38.
The Wall, paras. 132–134.
- 39.
International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966), 993 UNTS 3.
- 40.
United Nations Convention on the Rights of the Child (New York, 20 November 1989), 1577 UNTS 3. Prior to considering the relevant obligations under international human rights law, the Court discussed the consistency of Israel’s conduct with the various relevant rules of international humanitarian law. Whilst acknowledging that some rules of international humanitarian law enabled account to be taken of “military exigencies in certain circumstances”, the Court held that either the relevant norms did not permit such considerations to be taken into account, or (to the extent that they did) that it had not been established that the relevant conduct had been “absolutely necessary” (The Wall, para. 135).
- 41.
Ibid., para. 136.
- 42.
As regards the ICESCR, the Court found that the regime created by Israel infringed several of its obligations thereunder, and noted merely that this was the case since the restrictions on the relevant rights “fail to meet a condition laid down by Article 4 [ICESCR], that is to say that their implementation must be ‘solely for the purpose of promoting the general welfare in a democratic society’” (Ibid.). Similarly, in verifying whether the interference with the right to freedom of movement under Article 12 of the ICCPR constituted a permissible limitation, the ICJ adopted wholesale, and without further elaboration, the relevant standards as articulated by the Human Rights Committee, and made no reference to any qualification in that regard resulting from the rules of international humanitarian law (Ibid.).
- 43.
Bethlehem (2013), p. 185.
- 44.
ILC Study Group on Fragmentation (2006b).
- 45.
Ibid., 53, para. 96 (emphasis added).
- 46.
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] ICJ Rep. 168 (hereinafter “Armed Activities”), para. 216.
- 47.
Ibid., para. 216.
- 48.
Ibid., para. 117. The ICJ listed a variety of international humanitarian law and international human rights law instruments without making distinction as between lex generalis and lex specialis, namely the 1907 Hague Regulations (which the Court deemed to be applicable to both Uganda and the Democratic Republic of Congo due to its customary status); the Fourth Geneva Convention; the ICCPR; Additional Protocol I to the Geneva Conventions; the African Charter on Human and Peoples’ Rights (ACHPR) (Banjul, 27 June 1981); the Convention on the Rights of the Child, and its Optional Protocol on the Involvement of Children in Armed Conflict (New York, 25 May 2000), 2133 UNTS 161.
- 49.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015 (hereinafter “Croatian Genocide”), para. 153.
- 50.
Ibid., para. 154.
- 51.
Ibid. See also ibid., para. 85.
- 52.
Ibid., para. 474.
- 53.
Human Rights Committee, “General Comment No. 31. Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, 29 March 2004, UN Doc. CCPR/C/21/Rev.1/Add.13.
- 54.
Ibid., para. 11.
- 55.
American Declaration on the Rights and Duties of Man, OAS Res. XXX, adopted on 2 May 1948, reprinted in American Journal of International Law Supplement 43, 133.
- 56.
Coard v. United States (Case 10.951), I/ACommHR, Rep. no. 109/99, 29 September 1999, para. 38.
- 57.
Ibid., para. 42 (footnote omitted; the relevant footnote referred to the Nuclear Weapons Opinion).
- 58.
Coard v. United States, para. 42.
- 59.
American Convention on Human Rights (San José, 22 November 1969), 1144 UNTS 123.
- 60.
Abella v. Argentina (Case 11.137), I/ACommHR, Rep. no. 55/97, 18 November 1997, para. 164.
- 61.
Ibid., paras. 164–165; for further discussion, see Zegveld (1998).
- 62.
Las Palmeras Case (Preliminary Objections), I/ACtHR, Series C no. 67 (2000).
- 63.
Ibid., paras. 32–34.
- 64.
See, e.g., Bámaca Velásquez v. Guatemala, IACtHR, Series C no. 70 (2002), where the Inter-American Court, having noted that the capture and disappearance of a former guerilla commander had occurred in a situation which was properly characterized as an internal conflict (paras. 121(b) and 207), found that “the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention” (para. 209). Nevertheless, as noted by van den Herik and Duffy (2014), p. 15, a more careful look at the Court’s approach in applying the relevant norms “brings into question to what extent it really used international humanitarian law as a tool of interpretation of the relevant Convention provisions”; see further Moir (2003).
- 65.
Bámaca Velásquez v. Guatemala cit., para. 208.
- 66.
The first instance in which the Court made reference to the relevant passages from the case law of the ICJ in the “Relevant International Law Materials” section of its judgment (which does not form part of its reasoning on the merits) was Al-Skeini v. United Kingdom (App. no. 55721/07), ECtHR [GC], judgment of 7 July 2011, where the Court set out the relevant passage from The Wall (para. 90), as well as referring to Armed Activities (para. 91). See previously the joint dissenting opinion of judges Fura-Sandström, Björgvinsson and Ziemele attached to the Chamber judgment in Kononov v. Latvia (App. no. 36376/04), ECtHR, judgment of 24 July 2008 (para. 5); the notion does not make an appearance in the subsequent Grand Chamber judgment of 17 May 2010.
- 67.
Isayeva v. Russia (App. no. 57950/00), ECtHR, judgment of 24 February 2005; Khashiyev and Akayeva v. Russia (App. nos. 57942/00 and 57945/00), ECtHR, judgment of 24 February 2005; Isayeva, Yusupova, and Bazayeva v. Russia (App. nos. 57947/00, 57948/00, and 57949/00), ECtHR, judgment of 24 February 2005. For commentary, see Abresch (2005), Orakelashvili (2008), Bowring (2009).
- 68.
See, e.g., Isayeva v. Russia cit., para. 175.
- 69.
Varnava and others v. Turkey (Apps. nos. 16064-6/90 and 16068-73/90), ECtHR [GC], judgment of 18 September 2009, para. 185; see also, although less explicitly, the Chamber judgment of 10 January 2008, para. 130.
- 70.
Hassan v. United Kingdom (App. no. 29750/09), ECtHR [GC], judgment of 16 September 2014 (hereinafter “Hassan”).
- 71.
Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) (2 May 2014) (herein after “Serdar Mohammed”).
- 72.
See, e.g., Al-Skeini v. United Kingdom cit.; Al-Jedda v. United Kingdom (App. no. 27021/08), ECtHR [GC], judgment of 7 July 2011.
- 73.
The Court has consistently emphasised (including as regards cases of domestic preventive detention) that the grounds for detention set out in Article 5(1) are an exhaustive list: see, e.g., Ireland v. United Kingdom (App. no. 5310/71), ECtHR, judgment of 18 January 1978, para. 194; Saadi v. United Kingdom (App. no. 13229/03), ECtHR [GC], judgment of 21 January 2008, para. 43; A and others v. United Kingdom (App. no. 3455/05), ECtHR [GC], judgment of 19 February 2009, paras. 162–163; Al-Jedda v. United Kingdom cit., paras. 99–100.
- 74.
The applicant was the brother of Tarek Hassan who had been arrested by UK troops on 23 April 2003, a few days before the declaration by the Coalition that “major hostilities” had ended (1 May 2003) and the commencement of the occupation the Coalition. Following his arrest, Tarek Hassan was detained in the US-run military facility at Camp Bucca and interrogated by UK intelligence agents. Having been cleared for release, he was released on 2 May in an unspecified location in Basra province. His body was discovered several months later in a location some 700 km from Basra. In addition to the alleged violation of Article 5, the application before the Court alleged violations of Articles 2 and 3 of the ECHR.
- 75.
Hassan, para. 71.
- 76.
Ibid.
- 77.
Ibid., para. 77. The Grand Chamber also noted that in Al-Skeini v. United Kingdom cit., which was also concerned with a period when international humanitarian law was applicable, it had found that the United Kingdom exercised jurisdiction under Article 1 of the ECHR (ibid.).
- 78.
Ibid., para. 88.
- 79.
Ibid., para. 89.
- 80.
Ibid., para. 90.
- 81.
Ibid., para. 97.
- 82.
Ibid., para. 99.
- 83.
Ibid. The issue had previously arisen in Cyprus v. Turkey (Apps. nos. 6780/74 and 6950/75), Report of the Commission of 10 July 1976, in which the Commission had refused to examine allegations of breach of Article 5 relating to detention of prisoners of war (para. 313). Somewhat pointedly, the Grand Chamber in Hassan noted that in Al-Jedda v. United Kingdom cit., which had likewise concerned detention by the UK military in an international armed conflict, the UK had not sought to argue that Article 5 had been modified or displaced by reason of the powers of detention contained in the Third and Fourth Geneva Conventions (Hassan, para. 99).
- 84.
Ibid., para. 102.
- 85.
Ibid., paras. 100 and 102.
- 86.
Ibid., para. 102.
- 87.
Ibid., para. 103. That conclusion was reached on the basis that there existed a subsequent practice among the States parties not to derogate from Article 5 in respect of military operations abroad.
- 88.
Ibid., para. 104.
- 89.
Ibid.
- 90.
Ibid.
- 91.
Ibid., para. 105.
- 92.
Ibid., para. 106. In that regard, the Court accepted that the “competent body” for periodic review of detention as foreseen by Articles 43 and 78 of the Fourth Geneva Convention need not necessarily be a “court” as required by Article 5(4). Nevertheless it was careful to add that the competent body “should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness”, and that the first review should take place shortly after the start of detention, with subsequent reviews taking place at frequent intervals thereafter (ibid.).
- 93.
Ibid.
- 94.
See cit., footnote 71.
- 95.
Cf. Serdar Mohammed, para. 291, where Leggatt J. expressed the view that, “given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation”.
- 96.
Serdar Mohammed was captured by UK soldiers in 2010 in the course of a military operation in northern Helmand. He was detained by the UK in military bases for 110 days, before eventually being handed over to the Afghan authorities.
- 97.
Serdar Mohammed, paras. 231 and 232.
- 98.
Ibid., para. 271.
- 99.
Ibid., para. 272. Although the judge made reference to the maxim lex specialis derogat legi generali (ibid.), it is clear that, as used in the judgment, the term “lex specialis principle” was intended to have a far wider scope.
- 100.
Ibid., para. 273.
- 101.
Ibid.
- 102.
Ibid., para. 274.
- 103.
Ibid., para. 282.
- 104.
Ibid., paras. 288 and 289.
- 105.
Ibid., para. 275.
- 106.
Ibid., para. 284.
- 107.
Ibid., para. 288.
- 108.
Ibid., para. 289.
- 109.
Ibid., para. 288.
- 110.
Lindroos (2005), p. 28.
- 111.
Cf. Lindroos (2005), p. 66.
- 112.
Including by leading some commentators to suggest that the ICJ in fact intended to make reference to the principle lex specialis derogat lex generali; see, e.g., Abresch (2005), p. 744.
- 113.
Article 31(3)(c) of the VCLT.
- 114.
For a nuanced assessment of the impact of international human rights law on military operations, see Sari (2014).
- 115.
Croatian Genocide, para. 474.
- 116.
See, e.g., Article 4 of the ICCPR; Article 15 of the ECHR; Article 27 of the ACHR. The only notable exception is the ACHPR, which does not make any provision for derogation in states of emergency. For an insightful discussion of the availability of derogation in relation to the extraterritorial conduct of a State, see Milanovic (2014a).
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Borelli, S. (2015). The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship Between International Human Rights Law and the Laws of Armed Conflict. In: Pineschi, L. (eds) General Principles of Law - The Role of the Judiciary. Ius Gentium: Comparative Perspectives on Law and Justice, vol 46. Springer, Cham. https://doi.org/10.1007/978-3-319-19180-5_13
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