A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law

Milanović, Marko

doi:10.1093/jcsl/krp033

Cited by 41 publications

(9 citation statements)

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“…This is 'the price to be paid for the joint application of IHL and IHRL'. 34 A similar stance has been advocated by Storey regarding IRL. The 'war-flaw' consists in the failure to acknowledge IHL as reference framework to analyse 'war refugee' claims.…”

Section: Contextual Pre-eminence: Lex Specialis At Norm Levelmentioning

confidence: 71%

Systematising Systemic Integration: 'War Refugees', Regime Relations, and a Proposal for a Cumulative Approach to International Commitments

Moreno-Lax¹

2014

Journal of International Criminal Justice

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War and refugees are at the crossroads between IHL, human rights, and refugee law. Yet, the interplay between the three regimes remains unclear. This article offers a systematisation of available accounts, exposing their limits, and proposes an alternative, 'cumulative' approach to articulate their relationship. The final goal is to dispel persisting myths surrounding the fragmentation debate, contributing to the rationalisation of systemic integration. The proposal is grounded in Article 31 VCLT taken as a whole, as underpinned by the principle of good faith. A procedural rule of conduct and a redefinition of norm conflicts lie at the heart of this conceptualisation.

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Section: Contextual Pre-eminence: Lex Specialis At Norm Levelmentioning

confidence: 71%

Systematising Systemic Integration: 'War Refugees', Regime Relations, and a Proposal for a Cumulative Approach to International Commitments

Moreno-Lax¹

2014

Journal of International Criminal Justice

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“…A step towards the emergence of this contemporary definition of the lex specialis manifested first in the ICJ's pronouncement in 1996 in its advisory opinions pertaining to the ‘legality of the threat or use of nuclear weapons’, concerning the continued application of IHRL in wartime but granting some form of prevalence to IHL (Droege, 2007, p. 324). In particular, the ICJ stated that the application of the lex specialis was coherent in establishing the predominance of IHL in the interpretation of right to life, as it is specifically designed for wartime (Milanović, 2009, p. 5). However, while reflecting on this decision of the court in the advisory opinion on the ‘legality of the threat or use of nuclear weapons’ (1996), it was stressed that this interpretation of the lex specialis could not have been generally extended to any other relationship between the two bodies of norms (Cassimatis, 2007; Prud'homme, 2007, pp.…”

Section: The General Rule Of Interpretation: What It Ismentioning

confidence: 99%

“…As Finnish international lawyer Martti Koskenniemi pointed out (Simma and Pulkowski, 2006, p. 490; Cassimatis, 2007), interpretation is used when considering perfectly equal rules. What is more, the interpretation of the judge is not only based on the internal logic of norms, but also on external factors (Milanović, 2009, pp. 1–4).…”

Section: The General Rule Of Interpretation: What It Ismentioning

confidence: 99%

“…On the one hand, as expressed by the International Court of Justice (ICJ) in advisory opinions pertaining to the ‘legality of the threat or use of nuclear weapons’ (1996) and the ‘legal consequences of the construction of a wall in the Occupied Palestinian Territory’ (2004), the relation of specific conflicts with regard to IHL and IHRL can be regulated by the principle of lex specialis in wartime (Milanović, 2009, pp. 5–7).…”

Section: Introductionmentioning

confidence: 99%

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Disorder within the humanitarian sector: the old versus new humanitarianism debate

Adami

2020

Disasters

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A debate is continuing between old humanitarianism, based on neutrality and short-term, reliefbased assistance, and new humanitarianism, centring on advocacy and development. This paper views this deliberation as the humanitarian equivalent of the legal discussion between international humanitarian law and international human rights law. It tries to regulate it using the lex specialis and the belt and suspenders approach. Whether or not to be neutral is the key issue. Analysis of this point makes it possible to reveal the limited functionality of the lex specialis: it does not determine which approach should and should not be employed; there is no superior methodology. In conclusion, the belt and suspenders approach helps one to comprehend that 'what is the right method for humanitarian actors?' is not the right question to ask; both positions are valid, or simply the two approaches apply. It is important, therefore, to clarify and combine old and new humanitarianism.

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“…Milanovi´c describes three means of conflict avoidance: consistent, creative and forced. 159 The Kupreˇski´c and Tadi´c cases lie in between creative and forced avoidance. The two cases are far from 'consistent' as they do not 'fit' within the two elements approach to CIL.…”

Section: Using Custom Identification As a Conflict Avoidance Techniquementioning

confidence: 99%

Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited

Galand¹

2018

Leiden Journal of International Law

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International human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

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A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law

Cited by 41 publications

References 0 publications

Systematising Systemic Integration: 'War Refugees', Regime Relations, and a Proposal for a Cumulative Approach to International Commitments

Systematising Systemic Integration: 'War Refugees', Regime Relations, and a Proposal for a Cumulative Approach to International Commitments

Disorder within the humanitarian sector: the old versus new humanitarianism debate

Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited

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