The impacts of human rights law on the regulation of armed conflict: A coherency-based approach to dealing with both the "interpretation" and "application" processes

In: International review of the Red Cross: humanitarian debate, law, policy, action, Band 104, Heft 919, S. 1345-1396

Abstract

AbstractNowadays, human rights law significantly impacts the regulation of armed conflict through two main processes: the "interpretation process", whereby international humanitarian law is interpreted in light of human rights law's norms or concepts, and the "application process", whereby human rights law applies in armed conflict alongside international humanitarian law. These processes raise complex problems with respect to the interplay between the two branches of international law. The aim of this paper is to propose an elaborated theoretical framework, based on legal theories of normative coherence, in order to address that interplay and to overcome the shortcomings of the formal mechanisms usually referred to in practice and legal scholarship. It is demonstrated that such a coherency-based approach recommends adapting the outcomes of the interpretation and application processes, either by modulating or displacing the inappropriate norm or regime, in light of substantial considerations.