THE WEST BENGAL NATIONAL UNIVERSITY OF

JURIDICAL SCIENCES

Clinic-II

Impact of Special Statutes over General law: The Doctrine of Lex Specialis

Arnav Chopra

(220049)
Introduction

The idea of Lex Specialis, which states that a special law supersedes the ordinary law, is
deeply ingrained in jurisprudence and also apparent to common sense faculties. Is it
really that superficial, though? There are several levels to this straightforward idea that
come into play when fitting the statement to the facts.

If a punitive provision with a lesser sentence exists in the special legislation without an
explicit repeal of its applicability—typically achieved by a non-obstante clause—
complications would increase. The special legislation's precedence over the general
statute is sometimes supported by citations to lex specialis derogat legi generali, which
states that special laws repeal general laws, and generalia specialibus non derogant,
which states that the broad does not take away from the specific. Although double
jeopardy might be used to further argue the case in the example above, it would be a
wrong interpretation of the law as it would call for punishment of the "same person"
and "same crime." A single conduct may qualify for more than one offence. Additionally,
there may be many remedies available for the same offence, such as defamation.

Even while local laws seem to have substantially determined the principle's
jurisprudence, an international viewpoint tends to blur the borders.

Lex Specialis under International law

When seen from an international perspective, the distinction between lex specialis and
non-specialis becomes hazy, even if it seems clear when viewed from a local perspective.
A legal theory known as lex specialis derogat legi generali is presented, which favours
the more particular law above the general one in situations when it is relevant. The
adage, which dates back to ancient legal thinkers like Cicero, Grotius, and Vattel,
asserts that particular rules provide more precise direction and generate fewer
exceptions than generic laws. The main justification is that the legislation that is more
closely connected with the particular situation at hand should be given priority when
two laws address the same topic.

The concept has been used in both local and international contexts in international law,
however it is still unclear exactly what its precise function is. Lex specialis has been
generally acknowledged as a manner of expressing the contractual independence of
states, even though it is not specifically included in the Vienna Convention on the Law
of Treaties. This suggests that a comprehensive declaration of state agreement should
take precedence. Notably, it is a tool for settling conflicts but may also be utilised for
interpretation without directly contradicting standards.

Lex specialis has been the subject of contemporary scholarly investigation by Pauwelyn
and Lindroos, among others. Pauwelyn characterises lex specialis as the dominant
manifestation of state consent in norm conflict situations. However, Lindroos draws
attention to its shortcomings in the disjointed framework of international law, notably
with regard to settling disputes across systems that lack a clear link. Although helpful in
some situations, the concept does not provide definitive direction for every legal
dispute, especially when it comes to international human rights and humanitarian law.

Consequences of the idea for international law

International law experiences fragmentation due to the presence of special laws and
their supremacy over general laws. A key example of this phenomenon emerged in the
1988 Belilos case before the European Court of Human Rights (ECHR). The case
questioned whether Switzerland’s ratification of a document contained a reservation
that violated the aims of the European Convention. The Court ruled that, due to the
unique nature of human rights issues, the standard guidelines for reservations to a
convention did not apply, and the reservation was deemed invalid.
In contrast to domestic law, where the principle of lex specialis derogat legi generali
requires a clear contradiction for special laws to override general laws, international
law applies this principle even in cases where no direct conflict exists, provided the
special law fits within the subject matter's scope.

The ECHR further addressed the relationship between general and specific rules on
compensation in the Neumann case. Here, Article 50 (general compensation) was
considered alongside Article 5(5) (compensation for wrongful arrest). The court
determined that Article 5(5) did not replace Article 50 but should be read together,
allowing both provisions to coexist harmoniously.

This contrasts with the views of thinkers like Hugo Grotius, who argued that specific
laws should always take precedence over general rules. Grotius believed that special
rules, being more closely tailored to specific issues, provide greater clarity and should,
therefore, be more binding.

However, applying the lex specialis principle in international law is complex because it
lacks the hierarchical structure present in domestic systems. While this principle works
well in organized systems like the World Trade Organization or the European human
rights framework, applying it across separate regimes, such as human rights and
humanitarian law, presents challenges. The International Court of Justice (ICJ) has
employed lex specialis in cases involving conflicts between humanitarian and human
rights laws, as seen in the Nuclear Weapons and Wall advisory opinions. The ICJ ruled
that humanitarian law, as the more specialized framework, superseded human rights
law in the context of armed conflict. Yet, the ICJ did not clarify how to apply the
principle in all scenarios, leading to differing interpretations.

Critics argue that relying on lex specialis in this way can diminish human rights
protections, particularly in armed conflict, where humanitarian law may permit actions
that would violate human rights, such as collateral damage. Some scholars suggest that
human rights law should take precedence in certain cases where it offers stronger
protections.

In conclusion, while the lex specialis principle provides a framework for resolving
conflicts between different legal regimes, its application in international law is nuanced.
The principle's use must be balanced carefully to ensure that both specific and general
rules function together to offer optimal protection, particularly in complex and conflict-
related situations.

Implications at domestic level: India

At the domestic level, there has been significant and well-established jurisprudence
surrounding the relationship between general and specific laws. The Supreme Court of
India has provided key guidelines on how special legislation interacts with general laws
such as the Indian Penal Code (IPC). In the case of State (NCT) of Delhi v. Sanjay, the
court examined whether illegal sand mining under the Mines and Minerals
(Development and Regulations) Act (MMDR Act) could also result in prosecution under
the IPC. The court held that while unlicensed mining is an offense under the MMDR Act,
it also impacts public resources, which are held in trust by the state. Therefore, the
police are empowered to prosecute under both the MMDR Act and the IPC,
demonstrating that the IPC can be applied in conjunction with special laws when
broader public interests are involved.

Similarly, in State of Uttar Pradesh v. Aman Mittal, the court evaluated the Legal
Metrology Act (LMA) in conjunction with the IPC. While the LMA regulates matters
related to weights and measures, it does not cover offenses like fraud or deception. The
fact that these offenses are addressed by specific sections of the IPC shows that special
laws like the LMA are not necessarily comprehensive or exclusive.
In another case, State of Arunachal Pradesh v. Ramachandra Rabidas, the court
considered whether traffic offenses could be punished under both the IPC and the
Motor Vehicles Act (MV Act). It observed that the IPC deals with more severe criminal
acts such as causing death or injury, while the MV Act governs regulatory violations
specific to traffic. The two laws function in different spheres, and the presence of a
special law does not necessarily exclude the application of general laws, especially
when the special law does not fully address the offense.

Conclusion

When applied to international law, the principle of lex specialis derogat legi generali—
where specific laws override general ones—offers both clarity and challenges. Its core
function of allowing specialized legislation to take precedence over general rules has
been crucial in resolving legal disputes, especially within specialized areas like human
rights or humanitarian law. However, the decentralized and fragmented nature of
international law complicates the consistent application of this concept. While lex
specialis functions effectively in structured systems such as the European Court of
Human Rights or the World Trade Organization, it often falters in scenarios where
multiple legal regimes operate without clear connections between them.

Significant examples like the Nuclear Weapons and Wall advisory opinions illustrate the
complexities in balancing general and specific laws in international conflicts. In these
cases, the International Court of Justice (ICJ) applied humanitarian law as the more
specific framework, which arguably weakened the broader protections offered by
human rights law. This approach has faced criticism for potentially overshadowing the
human rights framework, especially in instances where humanitarian law permits
actions—such as collateral damage—that conflict with core human rights principles.

Ultimately, while lex specialis serves as a useful tool for legal interpretation, its
application in international law requires caution and must be tailored to the specific
context. In complex legal situations, a careful balance is essential to ensure that both
specialized and general norms work together, providing the strongest protections
possible.