The Lost Origins of<i>Lex Specialis</i>

Milanović, Marko

doi:10.1017/cbo9781316481103.004

Cited by 32 publications

(3 citation statements)

References 14 publications

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“…Before analysing the joint application of old and new humanitarianism through the general rule of interpretation and the belt and suspenders approach, a more detailed explanation of lex specialis is required. The lex specialis derogat legi generali principle stipulates that specific law prevails over general law with regard to a conflict and in a relation between two norms, as explained in the work of early writers such as Hugo Grotius and Emer de Vattel (Milanović, 2016a, p. 35). More precisely, as argued by Joost Pauwelyn, the lex specialis was originally supposed to correspond to ‘the closest, detailed, precise, or strongest expression of state consent', which because of its nature, was taken as the dominant rule (Prud'homme, 2007, p. 367).…”

Section: Lex Specialis: What It Is Notmentioning

confidence: 99%

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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Section: Lex Specialis: What It Is Notmentioning

confidence: 99%

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

Adami

2020

Disasters

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“…67 Milanovic points out that the specificity of the rule matters: "in some cases it is IHRL that might be more specific and thus useful for the interpretation of more general IHL". 68 Standards under both IHL and IHRL could be filled with content through a form of interpretative renvoi to rules of the other regime. 69 This, for instance, is true of the notion of "arbitrariness" under Article 6 of the International Covenant on Civil and Political Rights.…”

Section: Redirection Towards Persons Under the Control Of The Defendermentioning

confidence: 99%

The redirection of attacks by defending forces

Benthem¹

2020

Int. rev. Red Cross

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This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.

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“…As cases against individuals before tribunals and courts have proliferated, invocations of state responsibility for the unlawful use of force have declined in prevalence (Sikkink 2011). In addition, international adjudicative bodies increasingly apply human rights law to situations of armed conflict (Droege 2007; Milanović 2016). The proposition that the individual retains rights, even in the midst of war, has in turn created interpretive pressure for IHL to better protect individuals during hostilities.…”

Section: The Individualization Of War and A Legal Duty Of Care In Attackmentioning

confidence: 99%

Do attackers have a legal duty of care? Limits to the ‘individualization of war’

Dill

2019

Int. Theory

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Does International Humanitarian Law (IHL) impose a duty of care on the attacker? From a moral point of view, should it? This article argues that the legal situation is contestable, and the moral value of a legal duty of care in attack is ambivalent. This is because a duty of care is both a condition for and an obstacle to the ‘individualization of war’. The individualization of war denotes an observable multi-dimensional norm shift in international relations. Norms for the regulation of war that focus on the interests, rights, and duties of the individual have gained in importance compared to those that focus on the interests, rights, and duties of the state. As the individual, not the state, is the ultimate locus of moral value, this norm shift in international relations, and the corresponding developments in international law, are morally desirable. When it comes to IHL, the goal of protecting the interests of the individual creates strong reasons both for and against imposing a legal duty of care on the attacker. The enquiry into whether IHL does and should impose a legal duty of care therefore reveals that the extent to which war can be individualized is limited.

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The Lost Origins ofLex Specialis

Cited by 32 publications

References 14 publications

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

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

The redirection of attacks by defending forces

Do attackers have a legal duty of care? Limits to the ‘individualization of war’

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