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INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT
against women as embodied in article 2 of the Convention.75 Equally
unacceptable is the reservation on the obligation to eliminate discrimination
against women in all matters relating to marriage and family relations as
embodied in article 16.76 Reservations on these two provisions render the
State parties’ obligations under the Convention meaningless.
D. CONCURRENT APPLICATION AND THE PRINCIPLE OF LEX SPECIALIS
When, according to the rules explained above, both international
humanitarian law and international human rights law apply to a given
issue in an armed conflict, how do they interact, in particular when both
offer contradictory answers? This complex question is sometimes raised
by State authorities, human rights and humanitarian workers and others
in the field. Two arguments have specifically been raised against their
concurrent application. First, it has been argued that international human
rights law and international humanitarian law are regimes that apply in
separate contexts—namely the former in peace time only and the latter
in armed conflict—and their concurrent or complementary application is,
therefore, irrelevant. Second, it has also been argued that if both bodies of
law are in fact applicable in situations of armed conflict, then the question
is whether one body of law would have pre-eminence over the other as a
matter of lex specialis.
While these questions may seem academic, they could have an impact on
the activities of human rights workers and advocates. Having a clear legal
framework is essential to adequately address and engage with the relevant
actors, including States and non-State armed groups. The following sections
will draw from the views of human rights bodies, as well as decisions of
the International Court of Justice and regional human rights courts. As will
be shown, legal and jurisprudential developments over the past 15 years
have provided clear confirmation of the concurrent application of both
Official Records of the General Assembly, Fifty-third Session, Supplement No. 38
(A/53/38/Rev.1), Part Two, chap. I, paras. 6, 10 and 16.
76
General recommendation No. 21 (1994) on equality in marriage and family relations,
para. 44.
75
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