The Evolution of the Concept of the Just War in International Law

1939 ◽  
Vol 33 (4) ◽  
pp. 665-688 ◽  
Author(s):  
Joachim von Elbe
Keyword(s):  
International Law ◽  
Just War ◽  
Social Phenomenon ◽  
Natural Tendency ◽  
The Law ◽  
The Individual ◽  
Civilized World

War, as a social phenomenon, has been defined as “a fight between human societies, in primitive conditions between savage tribes, in the civilized world between states.” Ever since history has recorded the activities of organized groups, war has been one of its principal topics. Since it appears to be a fundamental element in their life, its explanation has been sought in the basic conditions of their existence. Thus, it is said, the law of growth and expansion, innate as a natural tendency in the individual being as well as in organized societies, compels them with irresistible force to assert their rights and to seek “security” by combating others. War, it seems, is ordained by nature and is an inevitable result of competition.

Hobbes among the Classic Jurists

2018 ◽  
Author(s):  
David Boucher
Keyword(s):  
International Relations ◽  
International Law ◽  
The State ◽  
Law Of Nature ◽  
Law Of Nations ◽  
Complete Identification ◽  
The Law ◽  
The Individual ◽  
Hedley Bull ◽  
Hans Morgenthau

The classic foundational status that Hobbes has been afforded by contemporary international relations theorists is largely the work of Hans Morgenthau, Martin Wight, and Hedley Bull. They were not unaware that they were to some extent creating a convenient fiction, an emblematic realist, a shorthand for all of the features encapsulated in the term. The detachment of international law from the law of nature by nineteenth-century positivists opened Hobbes up, even among international jurists, to be portrayed as almost exclusively a mechanistic theorist of absolute state sovereignty. If we are to endow him with a foundational place at all it is not because he was an uncompromising realist equating might with right, on the analogy of the state of nature, but instead to his complete identification of natural law with the law of nations. It was simply a matter of subject that distinguished them, the individual and the state.

The Nuremberg Trial and International Law

1947 ◽  
Vol 41 (1) ◽  
pp. 20-37 ◽  
Author(s):  
George A. Finch
Keyword(s):  
World War Ii ◽  
World War I ◽  
International Law ◽  
World War ◽  
The Public ◽  
The Future ◽  
The Law ◽  
Civilized World

Retribution for the shocking crimes and atrocities committed by the enemy during World War II was made imperative by the overwhelming demands emanating from the public conscience throughout the civilized world. Statesmen and jurists realized that another failure to vindicate the law such as followed World War I would prove their incapacity to make progress in strengthening the international law of the future.1

Collective Security and Collective Self-Defense Under the Charter of the United Nations

1948 ◽  
Vol 42 (4) ◽  
pp. 783-796 ◽  
Author(s):  
Hans Kelsen
Keyword(s):  
United Nations ◽  
International Law ◽  
League Of Nations ◽  
Individual Member ◽  
Collective Security ◽  
Enforcement Action ◽  
Self Defense ◽  
The United Nations ◽  
The Law ◽  
The Individual

Collective security is the main purpose of the United Nations, just as it was the main purpose of its predecessor, the League of Nations. What does collective security mean? Under general international law the principle of self-help prevails. The protection of the legal interests of the states against violations on the part of other states is left to the individual state whose right has been violated. General international law authorizes the state, i.e., the individual member of the international community, to resort, in case of a violation of its rights, to reprisals or war against that state which is responsible for the violation. Reprisals and war are enforcement actions. Insofar as they are reactions against violations of the law, and authorized by it, they have the character of sanctions. We speak of collective security when the protection of the rights of the states, the reaction against the violation of the law, assumes the character of a collective enforcement action.

The Paradox of “Just War” in Rousseau's Theory of Interstate Relations

2015 ◽  
Vol 109 (2) ◽  
pp. 314-325 ◽  
Author(s):  
BLAISE BACHOFEN
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Just War ◽  
The State ◽  
Interstate Relations ◽  
Law Of War ◽  
The Rule Of Law ◽  
External Relations ◽  
The Law ◽  
Utopian Theory

In theSocial Contract, Rousseau declares that he has given up the idea of discussing the “external relations” of states. Yet numerous texts—including a recently reconstituted work about the law of war—show that he thought very seriously about the question of the nature and origin of war and of the possibility of making war subject to the rule of law. Rousseau, in contrast to Hobbes, links war's appearance to that of the sovereign states; the state of war is therefore the necessary result of international relations. Moreover, he considers the international law as chimerical. How can he then conceive a non-utopian theory of “just war”? My hypothesis is that his conception of the law of war is deduced from principles of internal political law and arises from pragmatic necessity. The state that discredits itself in its manner of waging war weakens itself while believing that it is reinforcing itself.

scholarly journals The best interests of the child in international law: conceptual framework

Legal Ukraine ◽  
2020 ◽  
pp. 14-23
Author(s):  
Vasyl Datsenko
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of ​​those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child «On the right of a child to receive respect for the rest of the world». Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child’s best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

scholarly journals Foundations on Silt: Jeremy Bentham, Liberalism and the Science of International Law

2021 ◽  
Author(s):  
◽  
Robert Deuchars
Keyword(s):  
International Law ◽  
Natural Law ◽  
General System ◽  
Jeremy Bentham ◽  
Binary Opposition ◽  
Moral Philosopher ◽  
Course Of Action ◽  
The Law ◽  
The Individual ◽  
The Right

<p>When the words good or bad are uttered the user generally takes their meaning derived from a system of ethics or morals. In this sense good and bad are particularist in nature and also socio-culturally specific. Let us take a simple example from Antiquity. At school in the West we learn of a figure called Alexander the Great, the Macedonian. By all accounts we are taught that he was a great, and by extension a good man. In modern day Iran Alexander of Macedonia is known as Alexander the Devil. So the question arises: was Alexander good or bad, or both? Is it possible to state unequivocally that the actions of Alexander were as a matter of fact morally good or morally bad? I think the answer to this question is fairly straightforward: it depends. Now this answer is not a simple descent into postmodern territory and moral relativism; there are genuine and empirical reasons to believe all three possibilities pertaining to the actions of Alexander. In short it is not possible to extrapolate from the particular to the general and it is not a question of semantics or even of critical hermeneutics. There is no either/or for Alexander of Macedonia. The binary opposition of good and bad cannot be applied to the particular actions of an individual and furthermore cannot be generalized as a principle, rule or otherwise. This distinction or argument between what can be deemed good and what can be deemed bad may at first sight seem irrelevant to the law but it is not. In moral philosophy natural law theory states that law is based on morality, therefore negating the possibility of a bad law. It is at this point that Jeremy Bentham comes to our attention. Bentham believed that law and morality, although connected need not necessarily be so. Under the principle of utility, which I will explore in more detail later in this essay, Bentham believed that individual intent of an action could be disassociated from the intent that ought to be in place. The principle of utility was this test. In other words when determining the right course of action and what laws should be obeyed for all circumstances and systems, the principle of utility was the foundation. And I will argue later on in this essay that although Bentham is identified as a legal positivist and a philosophical realist his negative idealism is based on an error, much in the same way that he thought he had identified the fallacy of natural law. Bentham’s foundations may not be on stilts but perhaps, more accurately, they were built on silt. Moreover Bentham’s position as a moral philosopher is rather unusual in that although he was indeed interested in the behavior of the individual he was insofar as that behavior might have some bearing on a general system of law. This essay is therefore concerned with this troubling problem. I will proceed as follows. Firstly, I will give an overview of Bentham’s criticism of natural law and of William Blackstone in particular. Secondly, I will look at Bentham’s contribution to the internationalization of the law and his use of the “principle of utility”; he coined the neologism “international” as one of many. I will then move on to see how Bentham expected to actualize his foundational principle through his efforts to persuade others of the efficacy of codifying international law as a form of ‘science’. I conclude by arguing that Bentham’s philosophical realism was, in fact a form of idealism, bordering on the religious; his ‘cosmic calculus’.</p>

Justified: Just War and the Ethics of Violence and World Order

2021 ◽  
pp. 435-448
Author(s):  
Chris Brown
Keyword(s):  
International Law ◽  
Just War ◽  
World Order ◽  
Frame Of Reference ◽  
Theory And Practice ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Just War Tradition ◽  
The Individual ◽  
The Impact

This volume’s final Part VII on the impact of legal claims in war discourses is introduced by Chris Brown. In this chapter, he fundamentally questions the relevance of international law as a frame of reference for the justification and limitation of war. Brown turns our attention back to just war which we have discussed earlier in this volume (ch. 2 by Anthony Lang, Jr): Brown argues that, properly understood, the just war tradition can be defended against most of its critics, the exceptions being those Clausewitzian realists and Gandhian pacifists who refuse to make the kind of discriminations upon which the tradition is based. More problematic are some of the newer friends of the tradition, analytical political theorists who reject its praxis-oriented dimension, and focus on the rights and responsibilities of individuals, discounting the importance of collectivities. These writers are, in some respects, closer to the medieval tradition than are defenders of contemporary international humanitarian law, but their reliance on the ability of philosophers to decide matters of justice leads to a dogmatism uncharacteristic of the just war tradition, and their emphasis on the individual undermines the link between theory and practice. This chapter defends a traditional, albeit post-Christian, reading of the notion of justified war against both its overt opponents and its supposed friends.

Some Reflections on Israel's Temporary Legislation on Unification of Families

2010 ◽  
Vol 43 (2) ◽  
pp. 457-467 ◽  
Author(s):  
Ruth Lapidoth ◽  
Ofra Friesel
Keyword(s):  
International Law ◽  
Gaza Strip ◽  
The State ◽  
Provisional Measure ◽  
Israeli Arabs ◽  
The Law ◽  
The Government ◽  
The Gaza Strip ◽  
The Individual ◽  
The Right

In 2003 Israel adopted the Nationality and Entry into Israel (Provisional Measure) Law, 5763-2003. The Provisional Measure deals generally with entry into Israel; at first it dealt only with entry into Israel of residents of the West Bank and the Gaza Strip, and later it was extended also to nationals and residents of Iran, Iraq, Lebanon and Syria. It is particularly relevant for cases of unification of families and immigration for the purpose of marriage.The following article offers a short summary of the law as it has been amended in 2005 and 2007, as well as its interpretation by the government (since 2008) and then examines its conformity with international law. The Provisional Measure involves a clash between the right of the individual to marry the person of his choice and establish a family on the one hand, and the right of the state to regulate freely immigration and entry into its territory on the other hand. Since international law has not established a right to family unification nor to immigration for the purpose of marriage, the right of the state prevails in this matter. Yet, the Provisional Measure deviates from international law in a different aspect, as it leads to a de facto discrimination, mostly of Israeli Arabs. This discrimination is not permitted by the Convention for the Elimination of all Forms of Racial Discrimination, to which Israel is a party. It is recommended that Israel amends the law in order to bring it into conformity with international law.

scholarly journals Dignity of a person as a legal value: history and modernity

2020 ◽  
pp. 21-27
Author(s):  
Marina Fominskaya
Keyword(s):  
International Law ◽  
Personal Dignity ◽  
Value History ◽  
The Law ◽  
The Individual ◽  
Religious Aspects

The article discusses the legal, historical, philosophical, cultural and religious aspects of the dignity of the individual as the most important and significant legal category. The author uses the methods of historical legal, comparative legal, sociocultural analysis of modern law in order to identify the role and significance of this legal category in the law of various states, as well as in international law. As a result of the study, it was concluded that the national idea of Russia and the value of personal dignity represent the realization of the general spiritual and moral Christian principle of “love for one’s neighbor”.

scholarly journals Conceptual framework for the best interests of the child in international law

2020 ◽  
pp. 51-62
Author(s):  
Vasyl DATSENKO
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child “On the right of a child to receive respect for the rest of the world”. Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child's best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

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