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Теории соотношения норм международного гуманитарного права и международного права прав человека

Relationship between two branches of Public International Law applicable in armed conflicts – International Humanitarian Law and International Human Rights Law has been described by three main theories: a competitive, complementary and integrative one. The key point of the competitive theory consists in the impossibility of the simultaneous applicability of both branches that is deduced by qualification of International Humanitarian Law as lex specialis that excludes applicability of the International Human Rights Law. The complementary theory is based on the partial overlapping and mutual complementarity. Representatives of the integrative theory recognize a possibility of a full or partial merger of norms provided by International Humanitarian Law and International Human Rights Law. This integration is understood as taking place at the level of norms and not as a mere possibility of unification of two branches under any common title.

  International treaties on human rights, on one side and treaties on International Humanitarian Law on the other do not contain provisions which would exclude joint application of their norms. Moreover, these treaty rules either implicitly or implicitly provide for such a possibility. Application of the lex specialis derogat legi generali principle at the level of branches of Public International Law is not correct and does not allow to deduce the inapplicability of norms belonging to International Human Rights Law in armed conflicts. The United Nations Human Rights Committee, the European Court of Human Rights, the Inter-American Court on Human Rights and the African Commission on Human and Peoples’ Rights have acknowledged the mutual complementarity of International Humanitarian Law and International Human Rights Law norms in their decisions.

A possibility of integration of norms belonging to both branches, firstly, derives from the ability of International Humanitarian Law norms to serve as a limit for restriction of human rights by a state in armed conflicts, and, secondly, follows from the specific nature of international law-making, as international customs cristallize outside the framework of an artificial and in many aspects a scholastic division on branches of International Law.

Therefore, international treaties and customs, as well as practice of the International Court of Justice and international judicial and quasi-judicial bodies, allow to draw a conclusion on inconsistency of the competitive theory, mutual complementarity of the norms of both branches and existence of a potential for their integration.