The Genesis of Lex Specialis

Author: Marko Milanovic

When it comes to describing the relationship between human rights and international humanitarian law, the lex specialis principle is frequently taken for granted, as if it has somehow always been there, carved in stone. But what is its actual genesis? By genesis I do not mean its ancient history. Yes, it was in the Digest of Justinian. But, honestly, who cares? We have little or no idea of what exactly the lawyers of the Roman and Byzantine empires meant by the expression and how they applied it in practice, and indeed there are several different ways of conceptualizing lex specialis. My question is rather this: when did we, the community of international lawyers, start using this language to describe the relationship between IHL and IHRL? The timeframe for answering that question is necessarily more limited and easier to manage, since IHRL did not become a part of public international law until after the Second World War. I am obviously too young to have direct experience of this, but my impression has been that during the first fifty years or so of their co-existence very little thought was given to how IHL and IHRL would interact, and when the issue was discussed it was generally not framed in terms of lex specialis. My hypothesis is thus that the term entered common parlance among the international lawyers who have dealt with the issue only after the end of the Cold War, and specifically only after the ICJs 1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself first used the term: In principle, the right not arbitrarily to be deprived of ones life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed

conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. To prove or disprove this hypothesis, which is what I am doing in a paper Im writing right now, I need to do two things. First, I need to establish how the Court itself got the idea to use the lex specialis principle to describe the relationship between the rules of IHL and IHRL. Was it complete innovation on its part? Did it come from the pleadings of some of the participants in the advisory proceedings? Or did it come from generally accepted scholarship on the issue? Second, I need to look at the scholarship itself, specifically those works that examined the issue before the Nuclear Weapons opinion and immediately after it. The pre-1996 scholarship I will leave aside for the purpose of this post, but from what Ive read so far there are few, if any references t o the lex specialis principle as a solution to normative conflicts between IHL and IHRL (I will obviously very much appreciate it if readers could point me to any such references in scholarship in whatever language). But Ive read through all of the pleadings in the two nuclear weapons cases (the WHO and GA requests), both written and oral. And out of the 40 or so states that appeared before the Court in the two cases, do you know how many referred to thelex specialis principle? Just one the United Kingdom. In the first round of the WHO case the UK did not even discuss the human rights issue. When it came to the second round of written pleadings, which were due at the same time as the first round of pleadings for the General Assembly Nuclear Weapons case, the UK decided to give its comments on the submissions in the WHO case in its

written statement in Nuclear Weapons, i.e. that single document was both the second submission in the WHO case and the first in Nuclear Weapons. The UK now did extensively discuss human rights and environmental law, arguing that the issue was not the compatibility of nuclear weapons with these legal regimes in abstracto, but whether any of the rules of the law of human rights or the law on environmental protection can be construed, in accordance with the general principles stated above, as prohibiting the use or threat of use of nuclear weapons when carried out by way of legitimate self-defence. (WS, para. 3.98 (emphasis in original)).

In that regard, the UK noted that Article 15(2) ECHR explicitly referred to derogations from the right to life for deaths resulting from lawful acts of war, and argued that:

Although the International Covenant on Civil and Political Rights contains no provision equivalent to Article 15(2) of the European Convention, Article 6(1) prohibits only the arbitrary deprivation of life. If the Covenant is applicable at all to the taking of life in the context of an armed conflict, it is necessary to determine what the term arbitrary means in that context. Since the taking of life is an inescapable feature of the conduct of armed conflict and since it has never seriously been suggested that the Covenant outlaws the use of force by way of national self-defence, the reference to arbitrary deprivation of life must contain the means for distinguishing between those acts of taking life in armed conflict which are compatible with Article 6 of the Covenant and those which are not. The only sensible construction which can be placed on the term arbitrary in this context is that it refers to whether or not the deliberate taking of life is unlawful under that

part of international law which was specifically designed to regulate the conduct of hostilities, that is the laws of armed conflict. On that basis, the use of a weapon to take life in armed conflict could only amount to an arbitrary deprivation of life, for the purposes of Article 6 of the Covenant, if it was contrary to the laws of armed conflict but not otherwise. (WS, para. 3.101)

After briefly looking at the travaux of the Covenant and the work of the Human Rights Committee, the UK concluded its submissions on human rights as follows: The protection given by the law of human rights does nor, therefore, lead to a different conclusion regarding the legality of the use of nuclear weapons from that provided by the law of armed conflict. Since the law of human rights is concerned primarily with the protection of human rights in peacetime, whereas the law of armed conflict is a lex specialis designed to regulate the conduct of hostilities, it is entirely appropriate that the human rights agreements should, in effect, refer to the law of armed conflict in order to determine whether or not any particular instance of the deprivation of life in wartime is arbitrary. The same principle applies,a fortiori, in respect of the protection of other human rights. (WS, para. 3.108) This, then, was the very first appearance of lex specialis in the written pleadings, and indeed theonly such appearance in the UKs written statement. Notably, neither of the paragraphs I have just quoted in full provide any references or citations to authority of any kind. The UKs counsel obviously did their job well, since the language of the UKs

submissions is clearly reflected in paragraph 25 of the Courts Nuclear Weapons opinion. This is, to my mind, undoubtedly the intellectual genesis of the Courts holding. In the combined oral hearings in the two cases no state, not even the UK, nor France, nor the United States, nor Russia, mentioned lex specialis, although the UK did articulate a version thereof without the Latin: CR 1995/34, at 43-44. So why is this relevant? I do not want to go here into the merits or demerits of lex specialis and its various different conceptions. My only point is this: despite the Latin veneer of antiquity, and whatever its merits, the lex specialis principle was NOT part of mainstream thinking on the relationship between IHL and IHRL before the 1996 opinion (assuming there was any mainstream thinking on this issue in the first place). If it was, one would have expected more than one, single, isolated and conclusory reference to the principle in the hundreds of pages of written and oral pleadings before the ICJ.