scholarly journals Normative Contradictions in International Law: Implications for Legal Philosophy

wisdom ◽  
2016 ◽  
Vol 2 (7) ◽  
pp. 78
Author(s):  
Hans KÖCHLER
Keyword(s):  
Separation Of Powers ◽  
National Level ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Level ◽  
Constitutional Courts ◽  
Basic Principles ◽  
Legal Norms ◽  
International Legal Order ◽  
United Nations Charter

In order to be perceived as legitimate by those subject to it, a system of legal norms should be free of contradictions. The very idea of justice is incompatible with an erratic interpretation and, subsequently, arbitrary application of norms. Systemic contradictions make actions by state authorities unpredictable. However, at the domestic as well as at the international level, considerations of power and interest have often made of the respective body of norms a “hermeneutical minefield.” The international legal order in particular contains contradictions even between the most basic principles such as state sovereignty, self-determination and the rules of international humanitarian law. While, at the national level, the authority of constitutional courts may help to eliminate contradictions and inconsistencies, there exists, apart from limited regional arrangements, no such separation of powers at the international level. The lecture analyzes, inter alia, the systemic, destabilizing impact of normative contradictions in exemplary cases related to the interpretation of the United Nations Charter and draws conclusions in terms of the philosophy of law.

Normative Inconsistencies in the State System with Special Emphasis on International Law

2017 ◽  
Author(s):  
Hans Köchler
Keyword(s):  
Separation Of Powers ◽  
National Level ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Level ◽  
Constitutional Courts ◽  
Basic Principles ◽  
Legal Norms ◽  
International Legal Order

A system of legal norms should be free of contradictions. The idea of justice is incompatible with an erratic interpretation and, subsequently, arbitrary application of norms. Systemic contradictions make actions by state authorities unpredictable. However, at the domestic as well as at the international level, considerations of power and interest have often made of the respective body of norms a “hermeneutical minefield.” The international legal order contains contradictions even between the most basic principles such as state sovereignty, self-determination and the rules of international humanitarian law. While, at the national level, the authority of constitutional courts may help to eliminate contradictions and inconsistencies, there exists, apart from limited regional arrangements, no such separation of powers at the international level. The article analyzes the systemic, destabilizing impact of normative contradictions in exemplary cases related to the interpretation of the UN Charter and the system of international humanitarian and international criminal law.

scholarly journals Terrorism a Socio-Legal Study of Terrorism Acts in the Perspective of Human Rights and International Humanitarian Law

2018 ◽  
Vol 1 (2) ◽  
pp. 321-328
Author(s):  
Aulia Rosa Nasution
Keyword(s):  
Human Rights ◽  
21St Century ◽  
National Level ◽  
Terrorist Attacks ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Level ◽  
Legal Study ◽  
Peace And Security ◽  
Worldwide Phenomenon

Terrorism has become a worldwide phenomenon in the 21st century. Acts of terrorism have threatened the human civilization and endangered the peace and security of mankind. The purpose of this study was to analyze the acts of terrorism as a violation of human rights which would be reviewed from the legal and human rights perspectives. The results of this study pointed out that the acts of terrorism violate the law and human rights at the international level and national level. Terrorism acts also violated the International Humanitarian Law based on the Geneve Conventions 1949 where many people, civilians or militaries were the target of the terrorist attacks.

The Duty of Third States to Implement and Enforce International Humanitarian Law

1997 ◽  
Vol 66 (1) ◽  
pp. 55-75 ◽  
Author(s):  
Keyword(s):  
Humanitarian Intervention ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Geneva Conventions ◽  
International Court ◽  
International Legal Order ◽  
Peacekeeping Missions ◽  
United Nations Charter

AbstractThe debate surrounding peacekeeping missions and humanitarian intervention has become particularly poignant with the conflagration of violent conflict and incidents of genocide, presenting States with a moral and legal dilemma. While not addressing the issue of humanitarian intervention, this study argues that the international legal order imposes upon States not only a right but a duty to see to it that other States party to conflict abide by their legal and humanitarian obligations as members of the international community. The duty, argues the study, is imposed by several factors. Article~1 common to the Geneva Conventions and additional Protocol I imposes upon signatories the duty to ``respect and ensure respect for the Convention[s] ...'' The universal acceptance of the Conventions as well as the customary law nature and objective character of several of the Conventions' provisions and general principles of international law further make for an erga omnes responsibility, not only a contractual one between States, thus not subject to the principle of reciprocity. The paper shows that this obligation to act to ensure compliance with humanitarian law further arises from the United Nations Charter as well. The study goes on to discuss the scope of the duty to act, arguing that the Draft Articles on State Responsibility and a number of decisions by the International Court of Justice have gone beyond defining a State's right to act and beyond the duty not to assist the commission of violations, the omission of which constitute wrongful acts by States. It is further shown that the aforementioned is an obligation of result; States must continue to take measures to bring parties to a conflict to compliance with international humanitarian commitments until the desired result is achieved. Finally, the study concludes that the lack of enforcement of humanitarian law is a result of States' unwillingness to subject themselves to judicial machinery, which ``while cognizant of the hornets' nests of political entanglements, have the potential to struggle free of them.''

scholarly journals Postcolonial International Law Discourses on Regional Developments in South and Southeast Asia

2008 ◽  
Vol 36 (3) ◽  
pp. 387-431 ◽  
Author(s):  
Diane A. Desierto
Keyword(s):  
Southeast Asia ◽  
International Law ◽  
International Economic Order ◽  
Southeast Asian ◽  
Self Determination ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
South And Southeast Asia ◽  
International Legal Order ◽  
International Legal System

The development of international law in South and Southeast Asia exemplifies myriad ideological strands, historical origins, and significant contributions to contemporary international law doctrines’ formative and codification processes. From the beginnings of South and Southeast Asian participation in the international legal order, international law discourse from these regions has been thematicallypostcolonialand substantivelydevelopment-oriented.Postcolonialism in South and Southeast Asian conceptions of international law is an ongoing dialectical project of revisioning international legal thought and its normative directions — towards identifying, collocating, and applying South and Southeast Asian values and philosophical traditions alongside the Euro-American ideologies that, since the classical Post-Westphalian era, have largely infused the content of positivist international law. Of increasing necessity to the intricacies of the postmodern international legal system and its institutions is how the postcolonial project of South and Southeast Asian international legal discourse focuses on areas of international law that create the most urgent development consequences: trade, investment, and the international economic order; the law of the sea and the environment; international humanitarian law, self-determination, socio-economic and cultural human rights.

scholarly journals International law protecting the environment during armed conflict: gaps and opportunities

2010 ◽  
Vol 92 (879) ◽  
pp. 569-592 ◽  
Author(s):  
Michael Bothe ◽  
Carl Bruch ◽  
Jordan Diamond ◽  
David Jensen
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Environmental Law ◽  
International Humanitarian Law ◽  
Environmental Damage ◽  
Humanitarian Law ◽  
International Environmental Law ◽  
Basic Principles ◽  
Principle Of Proportionality ◽  
Definition Of

AbstractThere are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

14. The law of armed conflict

2019 ◽  
pp. 279-302
Author(s):  
Anders Henriksen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Military Operations ◽  
Basic Principles ◽  
Law Of Armed Conflict ◽  
The Relationship

This chapter examines those parts of international law that regulate how military operations must be conducted—jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies and Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 concerns belligerent occupation and Section 14.7. deals with the regulation of non-international armed conflict. Finally, Section 14.8 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

14. The law of armed conflict

2017 ◽  
Author(s):  
Anders Henriksen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Military Operations ◽  
Basic Principles ◽  
Law Of Armed Conflict ◽  
The Relationship

This chapter examines those parts of international law that regulate how military operations must be conducted — jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies. Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 deals with the issue of regulation of non-international armed conflict. Finally, Section 14.7 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

The ICRC Advisory Service on International Humanitarian Law: Fact sheets

1997 ◽  
Vol 37 (319) ◽  
pp. 456-457
Keyword(s):  
National Level ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Advisory Service ◽  
Geneva Conventions ◽  
Laws And Regulations

Becoming party to the 1949 Geneva Conventions, their Additional Protocols of 1977 and other treaties of international humanitarian law is but a State's first step in complying with that law. It must be followed by action at the national level to ensure implementation of the different provisions. That action can take various forms ranging from the adoption of national laws and regulations to the location and appropriate marking of buildings and other objects protected by the humanitarian law.

The Responsibility to Protect and the Plenitudinal Mindset of International Humanitarian Law

2014 ◽  
Vol 5 (1-2) ◽  
pp. 352-395 ◽  
Author(s):  
Christopher R. Rossi
Keyword(s):  
United Nations ◽  
Social Process ◽  
Responsibility To Protect ◽  
Process Theory ◽  
International Humanitarian Law ◽  
Current Debate ◽  
Common Denominator ◽  
Humanitarian Law ◽  
Host State ◽  
United Nations Charter

The Responsibility to Protect is almost fifteen years old and yet opinions diverge widely about its utility as a tool of international humanitarian law. Scholars and diplomats continue to debate its most discussed feature – the secondary responsibility of the international community to aid suffering populations of internal disputes when the host State or United Nations Charter system fails to do the same. This paper argues that much of the current debate is out of focus and at cross purpose and is due to disconnected strands of a plenitudinal mindset in law, found elsewhere as well in humanitarian law, which tend to view humanitarian law either from structural or substantive perspectives, but not from both perspectives. A unified understanding of the plenitudinal mindset re-focuses the discussion around an important common denominator, the need to bridge legal gaps and avoid the appearance of non liquet in the development of international humanitarian law. Disconnected discussions on the Responsibility to Protect are not as disconnected as they appear because opposing views regard as equally odious the silences and gaps of the United Nations Charter system. Borrowing somewhat from social process theory, this paper highlights the need and ability of international humanitarian law to re-forge the broken chain that can strengthen the Responsibility to Protect.

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