Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.
M. Milanovic, ‘Extraterritorial Derogations from Human Rights Treaties in Armed Conflict, in N. Bhuta (ed), Collected Courses of the Academy of European Law (Oxford University Press, forthcoming), available at SSRN: http://ssrn.com/abstract=2447183
This article examines one specific question: whether states are allowed to derogate from human rights treaties for situations which take place outside their territories, especially in armed conflict. Can, for instance, the United Kingdom derogate from the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) for events that take place in Afghanistan and involve its armed forces deployed there, to the extent that the ECHR and the ICCPR apply in Afghanistan?
The wider the geographical scope of human rights treaties, the more relevant the question of extraterritorial derogations. Such derogations might start looking increasingly appealing to states, especially those who have initially miscalculated in arguing that the treaties do not apply at all, and avoided derogating in the fear that doing so would count as an admission that the treaties do apply. Derogations have the potential of bringing both clarity and flexibility to the applicable legal framework, especially in situations of armed conflict and with regard to possible interactions between human rights and international humanitarian law (IHL).
Contrary to the dicta in some of the decisions of the House of Lords and the UK Supreme Court, the article argues that extraterritorial derogations are not only permissible, but may even be necessary and desirable, as part of price worth paying for the treaties’ extensive and effective application outside states’ boundaries. It also elaborates on the relationship between derogations and the various different manifestations of the lex specialis principle.
M. Milanovic, ‘The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law,’ in J. Ohlin (ed), Theoretical Boundaries of Armed Conflict and Human Rights (Cambridge University Press, forthcoming), available at SSRN: http://ssrn.com/abstract=2463957
In this paper I try to outline the current state of the debate on the relationship or interaction between international human rights law (IHRL) and international humanitarian law/law of armed conflict (IHL). The topic is well-worn and I will not recapitulate the basics. I will rather try to set out as clearly as possible the extant points of controversy, their driving factors and the logical order in which they should be addressed in order to advance the debate further. After providing a broad overview of the debate, I will look at one of its key concepts – the lex specialis principle. I will show that, despite the Latin veneer of antiquity, scholars have generally started using lex specialis to describe the relationship between IHL and IHRL only after the ICJ’s 1996 Nuclear Weapons advisory opinion.
Rather than being some kind of unassailable orthodoxy, lex specialis is a principle whose effects and utility need to be critically re-examined. Indeed, we are dealing not with one, but with three distinct versions of the principle, which rest on different rationales and produce different consequences. In that regard, there have been enthusiasts and sceptics even since the issue of the relationship between IHL and IHRL has arisen, and that is a good and natural thing. I do not propose to somehow fully reconcile these two camps, although I would submit that the differences between them are not as stark as is sometimes thought. But the main prerequisite for the debate to move forward is that we speak a common language and have conceptual clarity, and advancing this clarity is precisely this paper’s primary purpose.