Cassese's International Law

Humanitarian Law ◽

Enforcement Mechanisms ◽

High Level

This book provides an authoritative account of international law. It preserves and extends Antonio Cassese’s exceptional combination of a historically informed, conceptually strong, and practice-infused analysis of international law, comparing the treatment of most issues in classical international law with the main subsequent developments of this constantly evolving field. Part I of the book covers the origins and foundations of the international community. Part II is about the subjects of the international community, including States, international organizations, individuals, and other international legal subjects. Part III examines the main processes of international law-making and the normative interactions between different norms, of both domestic and international law. Part IV studies the mechanisms of implementation of international law, including State responsibility, diplomatic and judicial means of dispute settlement, and enforcement mechanisms. Part V covers a number of areas which have undergone particular development and reached a high level of specialization, namely, UN law, the law governing the use of force, international humanitarian law, international human rights law, international criminal law, international environmental law, and international economic law (trade and investment).

Proportionality in International Law

International Law ◽

10.1093/obo/9780199796953-0147 ◽

2017 ◽

Author(s):

Judith Gardam

Keyword(s):

International Law ◽

Dispute Settlement ◽

Just War ◽

Humanitarian Law ◽

European Union Law ◽

Value Judgment ◽

General Terms ◽

Analytical Approaches

In the most general terms proportionality requires a balance to be drawn between frequently conflicting values. Consequently, its application depends on a subjective value judgment and that very indeterminacy sometimes sits uneasily within law. Proportionality, nevertheless, is a pervasive and familiar concept within both the civil and criminal national legal systems of states. The norm first found expression in international law in the doctrine of the just war, the Christian version of which formed the basis of the secular just war writings of early commentators on the developing discipline of international law, such as Grotius and de Vattel. Nowadays the principle is reflected either explicitly or implicitly in several diverse areas of international law. It appears explicitly as either a treaty norm—as, for example, in the regulation of targeting decisions in International Humanitarian Law (IHL)—or as a customary norm in the case of self-defense and Countermeasures. In other situations, proportionality operates as a judicial mechanism of review implicit in the need to balance competing interests such as in European Union Law (EU Law), International Human Rights Law (IHRL), and the dispute settlement regime of the World Trade Organization (WTO). Proportionality is also a component of Maritime Law and Delimitation, the Law of Treaties, and International Criminal Law (ICL). The norm even has considerable support as constituting that elusive concept, a general principle of international law. The significance and scope of its role varies widely depending on the area of international law in question and determines to a considerable extent the amount of literature available on the topic. Despite its increasing importance in international law, exactly what proportionality requires of a particular decision maker in any given area of international law remains unsettled and is the subject of widespread judicial and scholarly debate. There is no one meaning of proportionality that is common in all contexts in which it operates or any consensus as to its application across the board. In order to provide some structure to the debate scholars have identified two major analytical approaches to the application of proportionality that they see reflected in state practice and jurisprudence: the so-called “quantitative” approach where the response is tailored or equivalent to the action against which it is to be measured, and the so called “qualitative” approach where other factors are to be taken into account. It is not suggested in the literature that all practice fits neatly into one or other category, but they are useful for the purposes of analysis and much of the material that follows incorporates these concepts.

Part VII Inter-linkages with Other Regimes, Ch.50 Armed Conflict and the Environment

10.1093/law/9780198849155.003.0050 ◽

2021 ◽

Author(s):

Bruch Carl ◽

Payne Cymie R ◽

Sjöstedt Britta

Keyword(s):

International Law ◽

Armed Conflict ◽

Environmental Law ◽

Legal Framework ◽

International Humanitarian Law ◽

Humanitarian Law ◽

International Environmental Law ◽

Starting Point

This chapter looks at how the concern for the environment in relation to armed conflict can be addressed from several bodies of international law. These diverse bodies of law emerged largely isolated from one another: international humanitarian law, international environmental law, international criminal law, international human rights law, the United Nations (UN) Charter, and so on. Hence, a fragmented and unclear legal framework protects the environment in times of armed conflict. The chapter focuses on the interlinkages between international environmental law and other bodies of international law to protect the environment in relation to armed conflict. The thesis is that international environmental law norms are increasingly shaping protection of the environment in relation to armed conflict, in contrast to the relative rigidity of international humanitarian law norms, which is traditionally the starting point for analysing wartime environmental protection. The chapter begins with a brief consideration of international law applicable during all temporal phases of armed conflict: before conflict (including conflict prevention); during conflict; and after conflict. It then explores the issues and relevant law particular to specific phases.

International Law

10.1093/he/9780198869399.001.0001 ◽

2021 ◽

Author(s):

Anders Henriksen

Keyword(s):

International Law ◽

Environmental Law ◽

Legal Personality ◽

State Immunity ◽

Peaceful Settlement ◽

History Of ◽

History Of International Law ◽

Settlement Of Disputes

International Law provides comprehensive and concise coverage of the central issues in public international law. The text takes a critical perspective on various aspects of international law, introducing the controversies and areas of debate without assuming prior knowledge of the topics discussed. Supporting learning features, including central issues boxes, chapter summaries, recommended reading and discussion questions, highlight the essential points. Topics covered include the history of international law, legal sources, the law of treaties, legal personality, jurisdiction and state immunity. The text also looks at the international law of the sea, human rights law, international environmental law, international economic law, the peaceful settlement of disputes, the use of force, the laws of armed conflict and international criminal law.

Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law

Nordic Journal of International Law ◽

10.1163/15718107-08104006 ◽

2012 ◽

Vol 81 (4) ◽

pp. 537-584 ◽

Cited By ~ 5

Author(s):

Jeremy Sarkin

Keyword(s):

International Law ◽

International Criminal ◽

Legal Framework ◽

Criminal Court ◽

Humanitarian Law ◽

International Convention ◽

Historical Developments ◽

Jus Cogens

This article examines the question whether jus cogens includes the prohibition of enforced disappearances, and why this is important. It surveys the meaning, context, development, status and position of jus cogens as well as enforced disappearance in international law, including their relationship to each other. It surveys the status of enforced disappearance in international law in general, as well as in international human rights law, international humanitarian law and international criminal law. The article scans the historical developments of international law, including developments over the last few decades, to indicate that the prohibition against enforced disappearance has attained jus cogens status. The legal framework is examined, including the jurisprudence that has emanated from a variety of sources. Specific treaties that deal with enforced disappearance are reviewed including the Declaration on the Protection of All Persons from Enforced Disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute of the International Criminal Court (ICC) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICED). What jus cogens is, what the controversies are that surround it, the different ways that it is understood within different schools of thought, and how these issues impact on whether the prohibition of enforced disappearance has attained jus cogens status are studied. The historical developments around enforced disappearances are examined in some detail to determine what its status is, particularly in relation to state practice, so as to determine whether it is jus cogens.

Protecting the Environment during Multinational Military Operations

The 'Legal Pluriverse' Surrounding Multinational Military Operations ◽

10.1093/oso/9780198842965.003.0017 ◽

2019 ◽

pp. 322-344

Author(s):

Onita Das

Keyword(s):

International Law ◽

Criminal Law ◽

Environmental Law ◽

Armed Conflicts ◽

Human Rights Law ◽

Military Operations ◽

International Human Rights ◽

Ongoing Work

The chapter examines issues concerning the protection of the environment during multinational military operations. Taking into consideration the International Law Commission’s (ILC) recent work regarding the protection of the environment in relation to armed conflicts, this contribution devotes particular attention to the preventive and remedial measures suggested in the Special Rapporteur’s reports. The chapter does, however, go beyond the ILC’s ongoing work on environmental protection in the context of armed conflict by extending its focus on exploring how multinational military operations generally—that is whether within or outside of armed conflicts—are influenced by other bodies of international law, namely international criminal law, international environmental law, and international human rights law.

9. The Individual and the International Legal System

International Law ◽

10.1093/he/9780198791836.003.0009 ◽

2018 ◽

Cited By ~ 2

Author(s):

Robert McCorquodale

Keyword(s):

International Law ◽

Legal System ◽

System P ◽

Wide Range ◽

International Legal System ◽

The Individual ◽

Degree Of Participation

This chapter examines the role of the individual in the international legal system. It considers the direct rights and responsibilities of individuals under the international legal system; their capacity to bring international claims; and their ability to participate in the creation, development, and enforcement of international law. Particular examples from a wide range of areas of international law, including international human rights law, international criminal law, and international economic law, are used to illustrate the conceptual and practical participation of individuals in the international legal system. It is argued that individuals are participants in that system, and are not solely objects that are subject to States’ consent, though their degree of participation varies depending on the changing nature of the international legal system.

Unmasking the Challenges

Interrogation and Torture ◽

10.1093/oso/9780190097523.003.0014 ◽

2020 ◽

pp. 359-392

Author(s):

Gloria Gaggioli ◽

Pavle Kilibarda

Keyword(s):

Human Rights ◽

International Law ◽

Criminal Responsibility ◽

Humanitarian Law ◽

Criminal Courts ◽

Law Enforcement Officials ◽

The Individual ◽

Mitigating Circumstances

International human rights law and international humanitarian law absolutely prohibit all forms of torture and cruel, inhuman, or degrading treatment (CIDT) at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other—less visible and insufficiently discussed—challenges concern laws and practices that may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so-called exclusionary rule) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present chapter will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts and tribunals.

Autonomous Weapons Systems and International Law

10.5771/9783748909538 ◽

2020 ◽

Author(s):

Daniele Amoroso

Keyword(s):

International Law ◽

New Technologies ◽

International Committee ◽

Humanitarian Law ◽

International Regulation ◽

Autonomous Weapons ◽

Human Decision ◽

Weapons Systems

Recent advances in robotics and AI have paved the way to robots autonomously performing a wide variety of tasks in ethically and legally sensitive domains. Among them, a prominent place is occupied by Autonomous Weapons Systems (or AWS), whose legality under international law is currently at the center of a heated academic and diplomatic debate. The AWS debate provides a uniquely representative sample of the (potentially) disruptive impact of new technologies on norms and principles of international law, in that it touches on key questions of international humanitarian law, international human rights law, international criminal law, and State responsibility. Against this backdrop, this book’s primary aim is to explore the international legal implications of autonomy in weapons systems, by inquiring what existing international law has to say in this respect, to what extent the persisting validity of its principles and categories is challenged, and what could be a way forward for future international regulation on the matter. From a broader perspective, the research carried out on the issue of the legality of AWS under international law aspires to offer some more general insights on the normative aspects of the shared control relationship between human decision-makers and artificial agents. Daniele Amoroso is Professor of International Law at the Law Department of the University of Cagliari and member of the International Committee for Robot Arms Control (ICRAC) contrattualistica internazionale” presso il Ministero del Commercio con l’Estero (ora Ministero dello Sviluppo Economico – Commercio Internazionale).

The Law Behind Rule of Law Transfers

10.5771/9783845298481 ◽

2019 ◽

Keyword(s):

Rule Of Law ◽

Humanitarian Law ◽

Legal Concept ◽

Wide Range ◽

Analytical Perspective ◽

The Law ◽

Political Dimensions

Transfers of rule of law between legal systems have been discussed extensively in academia. Yet, so far, scholarship has predominantly centered around the issue’s socio-political dimensions. The volume departs from these common scholarly paths and assesses rule of law transfers as a legal phenomenon. Its analytical perspective assumes that the process of transferring the rule of law does not only concern a legal concept but also holds a legal dimension itself. Against this backdrop, the volume features eight distinct contributions, introducing and applying the said perspective. They approach the topic from diverse angles, covering a wide range of legal fields, including EU law, public international law, international human rights law, international criminal law, international humanitarian law and international economic law – with each contribution succeeding in highlighting the relevance of “the law behind rule of law transfers”.

SHOULD INTERNATIONAL LAW RECOGNIZE A RIGHT OF HUMANITARIAN INTERVENTION?

International and Comparative Law Quarterly ◽

10.1017/s0020589317000057 ◽

2017 ◽

Vol 66 (2) ◽

pp. 441-466 ◽

Cited By ~ 1

Author(s):

Chris O'Meara

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Intervention ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Syrian Civil War ◽

The Right

AbstractThe ongoing Syrian civil war calls for a re-evaluation of using force to protect human rights. This article does not rake over the much-debated issue of whether a right of humanitarian intervention exists as lex lata. Instead, it addresses the little reviewed normative issue of whether the right should exist in international law to support and reflect a pluralistic understanding of sovereignty. Despite advancements in international human rights law, international humanitarian law and international criminal law, this wider fabric of international law preserves Westphalian sovereignty and the principle of non-intervention. It denies any right of humanitarian intervention.