Necessity

2021 ◽  
pp. 25-96
Author(s):  
Chris O'Meara
Keyword(s):  
International Humanitarian Law ◽  
Military Force ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
Different Types ◽  
First Time

Chapter 2 focuses on the meaning and content of necessity. It argues for the first time that there are two different ‘types’ of necessity. In so doing, this author proposes a novel taxonomy to distinguish between them. This distinction addresses, and better explains, the two principal and distinct concerns of necessity that are reflected in state practice, International Court of Justice jurisprudence and scholarship: (a) is military force required at all in the circumstances (an issue of ‘general necessity’), and (b) if so, where must such force be directed (an issue of ‘specific necessity’)? Without general necessity, the applicability of both specific necessity and proportionality is moot. Drawing on core principles of international humanitarian law, Chapter 2 provides a clearer and more workable understanding of necessity that highlights both the weaknesses in, and opportunities for, its operation.

The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons

1997 ◽  
Vol 37 (316) ◽  
pp. 56-64
Author(s):  
Hisakazu Fujita
Keyword(s):  
Nuclear Weapons ◽  
Second World War ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Fundamental Interest ◽  
Court Of Justice ◽  
International Court ◽  
Second World

The Advisory Opinion handed down by the International Court of Justice (ICJ) on 8 July 1996 concerning the legality of the threat or use of nuclear weapons contains many elements that are of fundamental interest from the standpoint of international humanitarian law. Indeed, humanitarian law, which has developed to a remarkable extent since the Second World War, has always lacked an express ruling on nuclear weapons.

3 Components of the International Law of Weaponry

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
Traditional Approach ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Status ◽  
General Principles Of Law ◽  
The Law

This chapter considers the sources of the law of weaponry and discusses matters critical to understanding it. Taking the traditional approach, in addition to general principles of law recognized by nations, the sources of the law consist of customary law and of treaty law, the latter referred to as ‘conventional law’. The chapter looks at customary law, which is, according to Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), the law applied by the court as including ‘international custom, as evidence of a general practice accepted as law’. The chapter discusses what does, and respectively does not, comprise state practice and then looks at treaties, how they are made and interpreted, how states explain their understandings of them and related matters. Individual sections then address the status at law of the ICRC Study of Customary International Humanitarian Law and of the UN Secretary General’s Bulletin.

The International Court of Justice as a Guardian of the Unity of Humanitarian Law

2007 ◽  
Vol 20 (3) ◽  
pp. 593-611 ◽  
Author(s):  
FABIÁN O. RAIMONDO
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
International Courts ◽  
Court Of Justice ◽  
International Court

This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.

Sources of International Humanitarian Law and International Criminal Law

2018 ◽  
Author(s):  
Steven R. Ratner
Keyword(s):  
Criminal Law ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
International Court ◽  
Necessary And Sufficient ◽  
Shed Light

This chapter contends that international humanitarian law (IHL) and criminal law (ICL) cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the International Court of Justice (ICJ) Statute inadequately describes key modes for prescribing law in these areas. International courts are particularly important for both areas, perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law, but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to promote compliance with rules. IHL and ICL also shed light on the importance of morality and ethics to the law-making process.

The “General Principles” of humanitarian law according to the International Court of Justice

1987 ◽  
Vol 27 (259) ◽  
pp. 367-375 ◽  
Author(s):  
Rosemary Abi-Saab
Keyword(s):  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
First Time

In its Judgment of 27 June 1986 in the case concerning “Military and Paramilitary Activities in and against Nicaragua”, the International Court of Justice dealt at length with some of the most vexed questions in humanitarian law. Although the Court had previously touched upon certain problems in this legal field, for example in the Corfu Channel case and that of the Pakistani Prisoners, this was the first time it expressed itself in detail on more general issues, notably on the customary nature of the “general principles” of humanitarian law.

International humanitarian law and nuclear weapons

1996 ◽  
Vol 36 (313) ◽  
pp. 500-502
Author(s):  
The Review
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
World Health ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Health Organization

On 8 July 1996, the International Court of Justice gave its advisory opinion in response to two enquiries as to the legality of the threat or use of nuclear weapons. Whilst the Court did not examine in detail the request put forward by the World Health Organization, it did give very close attention to the question presented by the General Assembly:“Is the threat or use of nuclear weapons in any circumstance permitted under international law?”

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