Lex specialis: Oversimplifying a more complex and multifaceted relationship?

Israel Law Review

Volumn 40, Issue 2, 2007, Pages 356-395

  Prud'homme, Nancie ^a  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

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EID: 84904648099     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700013388     Document Type: Article

References (173)

1. Charter of the United Nations, art. 1 (3), 26 June 1945, Can. T.S. 1945 No.7.
2. Are human rights and IHL related? Is there an affiliation, a mutual attraction between these two branches of international law? In other words, are they living in symbiosis penetrating each other mutually? Or else, are they forming an antithetical couple? Michel-Cyr Djiena Wembou & Daouda Fall, Le droit international humanitaire: Théories et réalités africaines 62 (2000).
3. For a discussion on that issue see Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the “War on Terror, ” 27 Fletcher F. World Aff. 55 (2003).
4. See, e.g. Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantanamo, March 10, 2006, available at http://www.usmission.ch/Press2006AJSFinalReplytoGITMOreport2006.pdf (last visited May 30, 2007)
5. Oral Statements by the United States Delegation to the Committee against Torture, May 8, 2006, available at http://www.usmission.ch/Press2006/CAT-May8.pdf (last visited May 30, 2007)
6. U.S. Statement on the Draft Convention on Enforced Disappearances, June 27, 2006, available at http://www.usmission.en/Press2006/0627U.S.StatementonForcedDisappearances.html (last visited May 30, 2007).
7. Orna Ben-Naftali & Keren R. Michaeli, We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int'l L.J. 233,254 (2003).
8. International Committee of the Red Cross, Summary Report, XVIIth Round Table on Current Problems on International Humanitarian Law, International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence, November 2003, at 8.
9. Raúl Emilio Vinuesa, Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law, 1 Y. B. Int'l Human. L. 69, 69–70(1998).
10. The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) [hereinafter Nuclear Weapons case].
11. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9) [hereinafter Wall case].
12. ILC Yearbook (1949–1941), 263–264, para 20. See also 224–225.
13. Those fundamental principles are humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. The origin of those principles dates to 1875 and have all been formally incorporated in the Preamble of the Statutes of the International Red Cross and Red Crescent Movement in 1986. For more detail on this topic, see International Committee of the Red Cross, The Fundamental Principles of the Red Cross and Red Crescent (1996).
14. Robert Kolb, The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 324 Int'l Rev. Red Cross 409 (1998), available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JPG2 (last visited May 30, 2007).
15. For more information on this separatist approach, see, e.g., G.I.A.D. Draper, The Relationship between the Human Rights Regime and the Law of Armed Conflict, 1 Isr. Y.B. Hum. Rts. 191 (1971)
16. reprinted in Reflections on Law and Armed Conflicts: The Selected Works on the Laws of War by the Late Professor Colonel G.I.A.D. Draper, OBE (Michael A. Meyer & Hilaire McCoubrey eds., 1998)
17. Wembou & Fall, OBE, at 66–67
18. Héctor Gros Espiell, Human Rights: Concept and Standards, in Humanitarian Law and Human Rights 345, 352 (Janusz Symonides ed., 2000)
19. Vinuesa, Humanitarian Law and Human Rights, at 70
20. Dietrich Schindler, The International Committee of the Red Cross and Human Rights, 208 Int'l Rev. Red Cross 3 (1979).
21. These protected persons are the wounded, sick, and shipwrecked members of the armed forces, the/prisoners of war and civilians. Geneva Convention (I) relative to the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31
22. Geneva Convention (II) relative to the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85
23. Geneva Convention (III) relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135
24. Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287.
25. The Secretary-General, Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, ¶ 25, UN Doc. A/8052 (1970).
26. In that respect, G.I.A.D. Draper described the objective of international humanitarian law as: “How to kill your fellow human beings in a nice way.” Draper, U.N.T.S.
27. Asbjorn Eide, The Laws of War and Human Rights-Differences and Convergences, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 675, 681 (Christophe Swinarski ed., 1984).
28. Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239, 240 (2000).
29. UN Doc.S/RES/237(1967).
30. International Conference on Human Rights, April 22-May 13, 1968
31. Proclamation of Tehran, Preamble, UN Doc. A/CONF. 32/41 (1968).
32. See, e.g., Louise Doswald-Beck & Sylvain Vité, International Humanitarian Law and Human Rights Law, 293 Int'l Rev. Red Cross 94 (1993), available at http://www.icrc.oig/Web/eng/siteengO.nsf/html/57JMRT (last visited June 13, 2007). They note that the Teheran Conference was “[t]he true turning point, when humanitarian law and human rights gradually began to draw closer.”
33. See the Proclamation of Tehran, Int'l Rev. Red Cross
34. International Conference on Human Rights, April 22-May 13, 1968
35. Human Rights in Armed Conflicts, Resolution XXIII (May 12, 1968).
36. Since 1968 the United Nations General Assembly has adopted several documents on the respect for human rights during armed conflict, and included this topic to its agenda every year since the Teheran Conference. See, e.g., Respect for Human Rights in Armed Conflicts, GA Res. 2444 (Dec. 19, 1968)
37. Respect for Human Rights in Armed Conflicts, GA Res. 2597 (XXIV)(Dec. 16, 1969)
38. Respect for Human Rights in Armed Conflicts, GA Res. 2677 (XXV)(Dec. 9,1970).
39. Prosecutor v. Furundzija, Case No. IT-95–17/1-T, Judgment (Dec. 10, 1998), at para. 183.
40. Respect for Human Rights in Armed Conflicts, Case No. IT-95–17/1-T, Judgment, at ¶ 25.
41. Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 (Dec. 10, 1948).
42. For references to human rights and the Universal Declaration of Human Rights in the Geneva Conventions see, e.g., 3 Jean de Prieux, Commentary on the Geneva Conventions of 12 August 1949 (1960), art. 99
43. See Geneva Conventions, Commentary on the Geneva Conventions, Common Article 3.
44. See also Gros Espiell Commentary on the Geneva Conventions, at 345–346
45. Doswald-Beck & Vité, Commentary on the Geneva Conventions.
46. Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3
47. Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609.
48. Id. Protocol I, art. 1(4).
49. For references to human rights in the Additional Protocols see, e.g., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Yves Sandoz, Christophe Swinarski & Bruno Zimmerman, eds., 1987)
50. Protocol I, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at arts. 1, 10, 11, 49, 75, 77, 83, 88, & 90
51. Protocol II, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Part II (humane treatment) & Part IV (civilian population), arts. 4, 18, & 19.
52. Theodor Meron, The Protection of the Human Person under Human Rights Law and Humanitarian Law, 91/1 UN Bulletin of Human Rights 36–37 (1992).
53. For more detail on the substantive similarities between the disciplines, see Doswald-Beck & Vité, UN Bulletin of Human Rights.
54. Kolb, UN Bulletin of Human Rights.
55. See also Jakob Kellenberger, Official Statement: Protection through Complementarity of the Law, 2003, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList575/D75203C5C3CFB78CC1256DA300427813 (last visited June 13, 2007). Therein Kellenberger discusses international humanitarian norms de facto protecting human rights.
56. The European Convention for Human Rights provides that no derogation from the right to life is permitted “except in respect of deaths resulting from lawful acts of war.” Similarly, the International Covenant on Civil and Political Rights and the American Convention on Human Rights assert that: “No one shall be arbitrarily deprived of his life.” European Convention on the Protection of Human Rights and Fundamental Freedoms, art. 15(2), Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR]
57. American Convention on Human Rights, art 4(1), Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR]
58. International Covenant on Civil and Political Rights, art. 6(1), Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
59. ECHR, U.N.T.S., at art. 15(1)
60. ACHR, U.N.T.S., at art. 27(1)
61. ICCPR, U.N.T.S., at art. 4(1).
62. See, e.g., Theodor Meron, Note and Comment: On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 Am J. Int'l L. 589 (1983).
63. Regarding the gaps of international human rights and humanitarian law during non-international armed conflicts see, e.g., Mark Freeman, International Law and Internal Armed Conflicts: Clarifying the Interplay between Human Rights and Humanitarian Protections, J. Human. Assist. (2000), available at http://www.jha.ac/articles/a059.htm (last visited May 1, 2007).
64. Liesbeth Zegveld, Remedies for Victims of Violations of International Humanitarian Law, 851 Int'l Rev. Red Cross 505, 515–520 (2003)
65. Christina M. Cerna, Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies, in Implementation of International Humanitarian Law 31 (Fritz Kalshoven & Yves Sandoz eds., 1989)
66. Fanny Martin, Application du droit international humanitaire par la Cour interamericaine des droits de l'homme, 844 Int'l Rev. Red Cross 1037 (2001)
67. Daniel O'Donnell, Trends in the Application of International Humanitarian Law by the United Nations Human Rights Mechanisms, 324 Int'l Rev. Red Cross 481 (1998)
68. Bertrand Ramcharan, The United Nations High Commissioner for Human Rights and International Humanitarian Law, HPCR (2005).
69. Michelle L. Mack, Compliance with International Humanitarian Law by Non-State Actors in Non-International Armed Conflicts, HPCR (2003).
70. See also Christian Tomuschat, The Applicability of Human Rights Law to Insurgent Movements, in Crisis Management and Humanitarian Protection, Festschrift für Dieter Fleck 573–591 (Horst Fischer et al. eds., 2004).
71. For a more thorough examination of the lex specialis principle see, e.g., Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law 385–439 (2003)
72. Anja Lindroos, Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis, 74 Nordic J. Int'l L. 27 (2005)
73. Martti Koskenniemi, Study on the Function and Scope of the Lex Specialis Rule and the Question of ‘Self-Contained Regimes,’ International Law Commission, UN Doc. ILC(LVI)/SG/FIL/CRD. 1 and Add. 1 (2004).
74. Emmerich de Vattel, The Law of Nations
75. Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, book II, ch. XVII, paras. 311,316(1793).
76. See also Hugo Grotius, De Jure belli acpacis, Libri Tres, book II, ch. 16, Sect. XXIX: When there is any accidental collision between one part of a written document and another, Cicero, in the second book of his treatise ON INVENTION, has given rules for deciding which of them ought to have the preference. …Among those treaties, which … are equal, the preference is given to such as are more particular, and approach nearer to the point in question. For where particulars are stated, the case is clearer, and requires fewer exceptions than general rules do.
77. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter the Vienna Convention].
78. For more details, see Lindroos, U.N.T.S., at 40–41: The lack of a hierarchy and institutional structures may also limit the application of lex specialis in another way. There are a variety of rules of interpretation and other maxims that may be applied in conflict resolution, such as lex prior, lex posterior, autonomous operation, and legislative intent, a contrario, acquiescence, contra proferentem, ejusdem generis, and expressio unius est exclusio alterius. Priority may thus be established in a variety of ways. It will depend on the particular circumstances of the case which principle will be given priority. The relationship between such principles, however, remains particularly unclear in international law. And as Jenks points out, “no particular principle or rule can be regarded as of absolute validity.” In other words, these other principles may take precedence over lex specialis, or they may be applied concurrently.
79. See also Koskenniemi, U.N.T.S., at 5 n.8. Therein, it has been said asserted that in fact the rule stand amongst the general principles of international law.
80. For examples on the application of lex specialis in international law see Pauwelyn, U.N.T.S.
81. Lindroos, U.N.T.S., at 48–64.
82. Pauwelyn, U.N.T.S., at 388.
83. Koskenniemi, U.N.T.S., at 4.
84. See Vattel, U.N.T.S. and accompanying text.
85. Pauwelyn, U.N.T.S., at 385.
86. Lindroos, U.N.T.S., at 46.
87. Pauwelyn, U.N.T.S., at 410.
88. See also Koskenniemi, U.N.T.S., at 4. Koskenniemi is more reluctant to affirm that the general and specific norms accumulate. Rather he writes: “In both cases—that is, either as an application of or an exception to the general law—the point of the lex specialis rule is to indicate which rule should be applied. In both cases, the special, as it were, steps in to replace the general.”
89. Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, ¶ 28, UN Doc. E/CN.4/2005/103 (Feb. 7, 2005).
90. For examples of cases dealing with international humanitarian law or the application of human rights during armed conflict see, e.g., William Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, 16 Eur. J. Int'l L. 741 (2005)
91. Aisling Reidy, The Approach of the European Commission and Court of Human Rights to International Humanitarian Law, 324 Int'l Rev. Red Cross 513 (1998)
92. Martin, Int'l Rev. Red Cross
93. Liesbeth Zegveld, The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case, 324 Int'l Rev. Red Cross 505 (1998).
94. See also Human Rights Committee, General Comment No. 31 [80]: Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 10 UN Doc. CCPR/C/74/CRP.4/Rev.6 (Apr. 21, 2004) [hereinafter General Comment No. 31]
95. Human Rights Committee, General Comment No. 29: States of Emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add.11 (July 24, 2001).
96. Nuclear Weapons case, UN Doc. CCPR/C/21/Rev.1/Add.11.
97. Id. at para. 24.
98. Id. at para. 25.
99. Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 Am. J. Int'l L. 119, 139, 141 (2005).
100. Id. at 141.
101. Louise Doswald-Beck, International Humanitarian Law and the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 316 Int'l Rev. Red Cross 35 (1997).
102. See also, e.g., International Committee of the Red Cross, Int'l Rev. Red Cross, at 9: [S]everal participants pointed out that [the] reasoning [of the ICJ]—though perfectly consistent for interpreting the precise content of the right to life—could not necessarily be generalised to all relations between IHL and human rights law. On the contrary, as human rights law is more precise than IHL in certain domains, the relation of interpretation must also be able to operate in the other direction.
103. Pauwelyn, Int'l Rev. Red Cross, at 410.
104. Orna Ben-Naftali & Yuval Shany, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17, 57 (2003).
105. See also, e.g., Dale Stephens, Human Rights and Armed Conflict-The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, 4 Yale H.R. & Dev. L. J. 1, 15 (2001). Stephens argues that, relying repeatedly on the fundamental principles and consideration of humanity to support their conclusions, the International Court of Justice to some extent interpreted international humanitarian law in light of international human rights law: Though the Court formally maintained the priority of the law of armed conflict, it interpreted that law in terms of the underlying principles of humanity. This emphasis elevated the humanitarian aspects and priorities of the law of armed conflict and ensured that these “weighted” humanitarian aspects must be considered when determining the legitimacy of military actions. In this way, the Court understands that the right to life envisaged by Article 6 applies as a non-derogable right and is to be interpreted only in accordance with the status quo of the prevailing law of armed conflict. Hence, the Court develops its reasoning by re-interpreting the law of armed conflict with a new-found emphasis on promoting humanitarian considerations.
106. Wall case, Yale H.R. & Dev. L. J.
107. Implementation of the International Covenant on Economic, Social and Cultural Rights, Second Periodic Reports Submitted by States Parties under articles 16 and 17 of the Covenant, Addendum, Israel, ¶ 5–8, UN Doc. E/1990/6/Add.32 (Oct. 16, 2001).
108. Id. at para. 102 citing the Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, Annex I, ¶ 4, UN Doc. A/ES-10/248 (Nov. 24, 2003): Israel denies that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which it has signed, are applicable to the occupied Palestinian territory. It asserts that humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace.
109. See Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Second Periodic Report, Addendum, Israel, ¶ 8, UN Doc. CCPR/C/ISR/2001/2 (Dec. 4, 2001).
110. See also Committee on the Rights of the Child, Summary Record of the 829th Meeting, ¶ 39–42, UN Doc. CRC/C/SR.829 (Oct. 2, 2002). Therein Israel also rejects the applicability of the Convention on the Rights of the Child to the West Bank and the Gaza Strip.
111. See Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
112. Id. at ¶ 106.
113. See Id and accompanying text.
114. Wall case, Id, at para. 106.
115. Noelle Quenivet, The ICJ Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law, 2004, available at http://www.ruhr-uni-bochum.de/ifhv/publications/bofaxe/x283E.pdf (last visited June 26, 2007).
116. Dennis, The ICJ Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law, at 133.
117. Meron, The ICJ Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law, at 266.
118. Lindroos, The ICJ Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law, at 41.
119. Id. at 28.
120. Lindroos, id. at 42 and 44 respectively.
121. Id. at 31.
122. Noam Lubell, Challenges in Applying Human Rights Law to Armed Conflict, 860 Int'l Rev. Red Cross 737, 746–750 (2005).
123. Id. at 751–753.
124. University Centre for International Humanitarian Law, Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict, July 24–25, 2004, Proceedings of the Expert Meeting, available at http://www.cudih.org/communication/communication_colloque_rapport04.pdf (last visited July 12, 2007).
125. Lindroos, Proceedings of the Expert Meeting, at 48.
126. See also id. at 44: The maxim of lex specialis does not provide any criteria to guide the decision whether one area of law is generally more important than another. And indeed, no tribunal seems to have attempted application of the doctrine to that effect… Thus, the maxim remains a juridical assumption that we may give priority to a special rule when a relationship exists between the special and the general. It is not a substantive rule of international law that might show which rule is special in relation to a more general rule.
127. Id. at 65–66.
128. Id. at 64–65.
129. See also id. at 42: As the maxim is a mechanic principle without a clear content it does not provide guidance in. This is the second difficulty faced in the application of lex specialis to different normative orders. Giving priority to a special norm within the system of unclear norm relations in which a decision cannot rely on such relations, the decision actually relies on political or other considerations. Whether environmental protection should be given higher priority than trade norms or vice versa is a highly value-based decision. Such decisions are political choices. Basing a decision only on a juridical logic such as lex specialis is rarely possible in the international legal system. In this connection it is important to note that, as lex specialis lacks a substantive content to direct such determinations, the decision-making process may entirely depend on considerations outside the scope of the maxim. Such doctrines and other wide principles may, then, be easily exploited in legitimising decisions which they have not in effect provided any guidance to.
130. General Comment No. 31, id, at ¶ 11.
131. See also General Comment No. 29, id, at ¶ 3, 9, 11,16.
132. Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116 (Dec. 19), at para. 216 [hereinafter DRC v. Uganda].
133. Jörg Kammerhofer, Unearthing Structural Uncertainty through Neo-Kelsenian Consistency: Conflicts of Norms in International Law, 7 (2005), available at http://www.esil-sedi.org/francais/pdf/Kammerhofer.pdf (last visited June 17, 2007).
134. For the reference to the lex specialis principle in the Wall case see Unearthing Structural Uncertainty through Neo-Kelsenian Consistency: Conflicts of Norms in International Law and accompanying text.
135. Kammerhofer, id at 1–2.
136. The material proposed hereafter is the first sketches of a wider project on the prospective avenues for the articulation of the parallel application of international human rights and international humanitarian law. In the coming months this topic will be developed in the ambit of this author doctoral thesis see Nancie Prud'homme, International Humanitarian Law and International Human Rights Law: Securing Strong and Coherent Partnership, (forthcoming, 2008)(Ph.D thesis, National University of Ireland, Galway)(on file with the author).
137. Arthur H. Robertson, Humanitarian Law and Human Rights, in Studies and Essays on International Humanitarian Law and Red Cross Prpnciples in Honour of Jean Pictet 801 (Christophe Swinarski ed., 1984).
138. Jean Pictet, Development and Principles of International Humanitarian Law 3 (Nijhoff, 1985).
139. See, e.g., Cerna, Development and Principles of International Humanitarian Law
140. Eide, Development and Principles of International Humanitarian Law
141. Vinuesa, Development and Principles of International Humanitarian Law
142. Meron, Development and Principles of International Humanitarian Law
143. Meron, Development and Principles of International Humanitarian Law
144. Theodor Meron, Human Rights in Internal Strife: Their International Protection ch. 1 (1987)
145. Robert Quentin-Baxter, Human Rights and Humanitarian Law-Confluence or Conflict?, 9 Austl. Y. B. Int'l L. 94 (1975).
146. Robertson, Austl. Y. B. Int'l L., at 800–801.
147. David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 Eur. J. Int'l L. 171, 171 (2005).
148. See also Ben-Naftali & Michaeli, Eur. J. Int'l L.
149. Ben-Naftali & Shany, Eur. J. Int'l L.
150. Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int'l L. 1, 34 (2004).
151. For other examples of authors supporting the harmonization of international humanitarian law and international human rights law see Hans-Joachim Heintze, On the Relationship between Human Rights law Protection and International Humanitarian Law, 856 Int'l Rev. Red Cross 789 (2004)
152. Francisco Forrest Martin, Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict, 64 Sask. L. Rev. 347 (2001)
153. Martin, Sask. L. Rev.
154. Stephens, Sask. L. Rev.
155. See Sask. L. Rev., Section V.
156. For the Nuclear Weapons case, see Sask. L. Rev. and accompanying text.
157. For the Wall case, see Sask. L. Rev. and accompanying text.
158. University Centre for International Humanitarian Law, Sask. L. Rev., at 45.
159. Ben-Naftali & Shany, Sask. L. Rev., at 56.
160. Background Paper by Louise Doswald-Beck in Proceedings of the Expert Meeting, Sask. L. Rev., at 9.
161. The first assumptions for this section and the premises on which to construe what is called here the “pragmatic theory of harmonization” emerged from a presentation delivered by David Kretzmer in May 2005. Therein Kretzmer proposed a unique outlook on the articulation of the relationship between international humanitarian law and international human rights law, based on three approaches including the intensity of violence. David Kretzmer, The Relationship between the IHL and Human Rights Law, in light of the ICRC Report on Customary Law, Presentation given in Gal way on May 3, 2005.
162. Vienna Convention on the Law of Treaties, The Relationship between the IHL and Human Rights Law, in light of the ICRC Report on Customary Law.
163. Id. at art. 31(1).
164. Id.at art,31(3)(c).
165. See, e.g., Philippe Sands, Treaty, Custom and the Cross-fertilization of International Law, 3 Yale Hum. Rts. Dev. L. J. 85 (1998)
166. Campbell McLachlan, The Principle of Systemic Integration and Article 31 (3)(c) of the Vienna Convention, 54 I.C.L.Q. 279 (2005).
167. International Law Commission, Report of the International Law Commission on the Work of its Fifty-fourth Session (2002).
168. Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-seventh session, prepared by the Secretariat, UN Doc. A/CN.4/529 (2003).
169. International Law Commission, Report on the Work of its Fifty-seventh Session (2005)
170. see especially ch. XI: Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, ¶ 467, UN Doc. A/60/10 (2005). For a discussion on the weaknesses of this principle see ¶ 468–469.
171. Kammerhofer, UN Doc. A/60/10, at 4.
172. Id. at 4.
173. Françoise Hampson & Ibrahim Salama, Working Paper on the Relationship between Human Rights Law and International Humanitarian Law, ¶ 5, UN Doc. E/CN.4/Sub.2/2005/14 (June 21, 2005).