Consonance or dissonance: the relationship of human rights in armed conflict and international humanitarian law

JX International law;K Law (General);KZ Law of Nations

Salomon, Tim R. ; Geiss, Robin

University:University of Glasgow

Department:School of Law

关键词: International humanitarian law, law of war, law of armed conflict, international human rights, human rights law, international human rights law, lex specialis, norm conflict, special regime, derogations, harmonizing interpretation, Vienna Convention on the Law of Treaties.;   

Others  :  http://theses.gla.ac.uk/8511/1/2017SalomonLLM%28R%29.pdf

来源: University of Glasgow

【 摘 要 】

This thesis discusses the relationship between human rights in armed conflict and international humanitarian law. The topic has the appearance of being somewhat of a Gordian knot in international law scholarship. However, the longstanding character of the dispute surrounding the topic does not diminish its importance. An agreement to disagree is not an option when considering the practical consequences. While it is unsatisfactory from an academic view that a workable solution on applying both legal regimes to armed conflict settings is still lacking, it is deeply troubling on a practical level. The current situation means no less than an uncertainty concerning legal norms in armed conflicts. This has adverse effects on the protection of legal interests such as life, liberty, and due process in the most extreme circumstances, but it also poses the danger of undermining the acceptance of legal standards.Borrowing from recent judicial developments especially in the jurisprudence of the European Court of Human Rights, this thesis first outlines the background of the topic and then attempts to reconcile the two main opposing theories, one focussing on the complementary relationship between the legal regimes and one focusing on the lex specialis characteristic of international humanitarian law, by integrating both into a two-step-approach. This approach features first the attempt to harmonize two applicable norms by way of interpretation and it sees lex specialis proper as a subsidiary measure to be applied, when such harmonization fails. However, the respective lex specialis maintains a higher weight on the interpretation stage as well. The thesis then tests the approach by applying it to the human right to life and the human right to liberty in international armed conflicts and the much more problematic field of non-international armed conflicts.This thesis is guided by the hope, that the current state of affairs may offer fertile ground for an end to the decade-long dispute, as state parties now tend to accept the need for legal clarity in armed conflicts and have given up their fundamental opposition towards applying human rights in extraterritorial settings and national and human rights courts have growingly acknowledged that they are not fostering legal protection by treating the actions of armed forces on the battlefield settings like police operations in peacetime.