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Title: The relationship of state obligations under the International Covenant on Economic, Social and Cultural Rights and international humanitarian law : an analysis of health-related issues in non-international armed conflicts
Author: Müller, Amrie
ISNI:       0000 0004 2725 0675
Awarding Body: University of Nottingham
Current Institution: University of Nottingham
Date of Award: 2011
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The parallel application of international humanitarian law (IHL) and international human rights law (IHRL) to armed conflicts is widely accepted today. Its detailed legal consequences, which will help in understanding its practical effect and potential to enhance the protection of people affected by armed conflicts, remain to be analysed in many areas. This thesis investigates the relationship of state obligations under IHL and the International Covenant on Economic, Social and Cultural Rights (ICESCR), with a special emphasis on health-related issues in non-international armed conflicts. ICJ jurisprudence suggests that the simultaneous application of IHL and IHRL can be structured with the help of the lex specialis maxim. This thesis argues that the function of the lex specialis maxim is relative and highly situation-dependent. When this is recognised, the maxim - alongside other interpretative methods - promises to aid the flexible parallel application of IHL and economic, social and cultural (ESC) rights to non-international armed conflicts. Despite developments in customary IHL applicable to non-international armed conflicts, the distinction between international and non-international armed conflicts remains relevant in IHL. Likewise, questions remain regarding the threshold of application of some IHL rules. These factors will affect the parallel application of IHL and the ICESCR to non-international armed conflicts. The scope of state obligations under the ICESCR in times of armed conflict has received little attention so far. It is argued that this scope is determined by two Articles: the notion to 'take steps' towards the 'progressive realisation' of ESC rights in Article 2(1) ICESCR, and by Article 4 ICESCR, the Covenant's general limitation clause. It is shown that the minimum core approach can be helpful in interpreting both Articles - minimum core rights should be implemented as a matter of highest priority even in times of armed conflict. It is further argued that no derogations are permitted from the right to health and other ESC rights in times of armed conflict, in particular not from their minimum cores. Building on these findings and focusing on health-related issues, the thesis analyses how a relative and context-sensitive lex specialis maxim can assist in easing substantial tensions between elements of the right to health and IHL relating to the targeting of military objectives, in particular so-called 'dual-use' objects. IHL rules on military targeting are found most likely to be given preference in situations of active combat. Nonetheless, the simultaneous application of the right to health will ensure that adverse long-term public health and other socio-economic consequences of NIACs for civilians are not ignored even when hostilities are ongoing and military-target decisions are made. It is also shown that IHL on the protection and care of the wounded and sick and the right to health complement each other well in mitigating the direct and indirect health consequences of armed conflicts, similarly supported by a context-sensitive use of lex specialis. With certain nuances, these findings apply to the relationship between IHL and ESC rights more generally. The operationalisation of this thesis' findings, and of the legal implications of the parallel application of other ESC rights and IHL, requires further efforts. It is concluded that the development of guidelines that assist practitioners in assessing the flexible relationship between IHL and the ICESCR in a given situation are the most functional option in that regard.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available