Lex Specialis as a Reason-Giving Norm

What is it about?

Lex specialis is a legal principle that prioritizes specific laws over more general ones, and it plays a crucial role in international law, especially when international humanitarian law (IHL) and human rights law (HRL) clash. For example, during armed conflicts, IHL and HRL both aim to protect individuals, but IHL may permit certain actions for military necessity. Traditionally, the International Court of Justice (ICJ) has ruled that IHL takes precedence over HRL due to lex specialis. Recently, however, there’s a growing call for an integrative approach that sees IHL and HRL working together to enhance protection, rather than being in opposition. This means carefully assessing each situation to decide whether IHL or HRL is more appropriate. This article introduces a new way to understand lex specialis not just as a rule that favors specific laws automatically but as a flexible principle where the reasons for choosing specific laws can be balanced against other important factors. This allows for situations where HRL might sometimes override IHL. This proposed method provides a balanced way to apply specific and general laws, aiming to resolve legal conflicts while respecting the objectives of both IHL and HRL, ensuring that the most appropriate laws are used in each case

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