Principles of international humanitarian law

Armed Forces ◽

Modern World ◽

Humanitarian Law ◽

The European Union ◽

Effective Response ◽

Further Development

The article considers topical issues of the general concept and system of principles of international humanitarian law. The basic general and special principles of this branch of international law are investigated, and also the principles and ways of interpretation of its norms are analyzed. The tendencies of further development of the principles of international humanitarian law are determined. In the modern world, international humanitarian law has become a unique legal phenomenon and has acquired the most universal institutional and legal nature. But even today, this authoritative branch of international law continues its development, which is influenced by numerous factors, including increasing the conflict of modern international relations, which necessitates effective action by the UN and other international organizations and individual states, and, in turn, requires a theoretical analysis of the humanitarian international legal force mechanism that international law theorists hope can provide an effective response to the brutal challenges of the new millennium. However, this leads to the fact that in some cases the forces of the UN or other international organizations actually become a party to an armed conflict, which leads to the fact that such a conflict already affects not only the state or states of the conflict zone, but also third countries place their armed forces at the disposal of international organizations. The need to comply with international humanitarian law is highlighted in numerous Security Council resolutions and decisions of other UN bodies, decisions of regional international organizations, including the Council of Europe and the European Union, which significantly affect the formation and further development of international humanitarian law. Key words: theory of international law, principles of international humanitarian law, system of principles, international relations, international judicial practice.

Autonomy or Sovereignty: the Case of the European Union

International and Comparative Law Review ◽

10.2478/iclr-2020-0018 ◽

2020 ◽

Vol 20 (2) ◽

pp. 73-92

Author(s):

Danuta Kabat-Rudnicka

Keyword(s):

European Union ◽

International Relations ◽

International Law ◽

International Society ◽

International Organization ◽

Modern World ◽

The European Union ◽

Jean Bodin ◽

New Type

Summary Sovereignty is a key concept in international law and international relations. First defined and discussed by Jean Bodin, sovereignty is considered to be an inherent attribute of any state. However, the changes that international society has undergone since the Treaty of Westphalia, including the emergence of different state and non-state actors vying for power and authority, have called into question the position of the state as the main actor in the modern world. This in turn has given rise to the following questions: how should the very concept of sovereignty be understood today? Given the growing importance of international organizations and regional integrational arrangements can the concept of sovereignty be extended to cover entities other than states; and in case of the European Union, what makes us think in terms of sovereignty rather than autonomy? This analysis is an attempt to apply the concept of sovereignty to contemporary international organizations. The main thesis is as follows: in the case of international organizations, especially a new type of organization, it is also legitimate to consider a narrative in terms of sovereignty, not just autonomy. The example studied here is the European Union as an international organization-cum-regional integrational arrangement.

Issues of the theory of international humanitarian law in the context of integration and globalization

Legal Ukraine ◽

10.37749/2308-9636-2020-11(215)-5 ◽

2020 ◽

pp. 36-43

Author(s):

Viktor Bazov

Keyword(s):

Human Rights ◽

International Relations ◽

International Law ◽

Armed Conflict ◽

Humanitarian Law ◽

Legal Systems ◽

Law Of Armed Conflict ◽

The Law ◽

Further Development

The article discusses topical issues of the formation and further development of the theory of international humanitarian law. Explored the basic concepts of this area of humanitarian public law. For the first time, international humanitarian law is defined as a set of conventional and customary international legal norms that govern the law of armed conflict and human rights law. The processes of globalization of modern international relations, characterized by increasing influence of leading international organizations and crises in individual states, objectively affect the renewal and further development of the theory of international humanitarian law as one of the rapidly developing branches of public international law. New conceptual approaches to the modern definition of international humanitarian law, its philosophy and legal nature require a rethinking of scientific views as classics of international law, including the founder of the theory of natural law and modern science of international law Hugo Grotius, researcher of state interests in «just war» Thomas Hobbes and the founder of the «social contract», the sentimentalist Jean-Jacques Rousseau, and the views of such prominent scholars as Immanuel Kant, Fedor Martens and Jean Pictet. Given the normative definition, «the law of armed conflict» and «the law of human rights» are two independent legal systems within the framework of international humanitarian law, which operate mainly in different periods: during armed conflicts or in peacetime, respectively. These legal systems, although closely interlinked within the framework of international humanitarian law, are still independent and relatively independent of each other, as they have features in the sources and mechanisms of implementation and control over compliance with their norms and principles. Key words: theory of international humanitarian law, international relations, state, international organization, international court.

The Obligation to Afford Reparation to Injured Individuals

10.1093/oso/9780198808442.003.0004 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Human Rights Treaties ◽

The Law ◽

The Right ◽

Right Of Access ◽

The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Organisation juive européenne, Vignoble Psagot Ltd v. Ministre de l’Économie et des Finances

International Law Reports ◽

10.1017/ilr.2020.7 ◽

2021 ◽

Vol 191 ◽

pp. 402-442

Keyword(s):

European Union ◽

International Law ◽

West Bank ◽

Humanitarian Law ◽

The European Union ◽

Purchasing Decisions ◽

Ethical Considerations ◽

Occupied Territories ◽

East Jerusalem

Economics, trade and finance — Food imports — Import of foodstuffs originating from East Jerusalem, West Bank and Golan Heights into the European Union — Labelling of products — Whether products originating from Israeli settlements in the Occupied Territories must be labelled as such — Observance of international law — Whether foodstuffs coming from settlements established in breach of rules of international humanitarian law — Ethical considerations — Purchasing decisions of consumers — Misleading of consumers Relationship of international law and municipal law — European Union law — Treaty on European Union, 1992 — Treaty on the Functioning of the European Union, 2007 — EU Customs Code — Regulation (EU) No 1169/2011 — Consistent interpretation of EU law — Interpreting Regulation (EU) No 1169/2011 in manner consistent with international law — Notions of “State”, “territory” and “place of provenance” — Referral of questions by national court to Court of Justice of European Union Territory — Status — Occupation — Occupied Territories in which State of Israel Occupying Power — East Jerusalem, West Bank and Golan Heights — Rules of international humanitarian law — Israel having limited jurisdiction — Israeli settlements in Occupied Territories — Palestinian people of West Bank enjoying right to self-determination — Golan Heights part of territory of Syrian Arab Republic — Import of foodstuffs into European Union — Labelling of products — Whether products originating from Israeli settlements in Occupied Territories must be labelled as such — Observance of international law — Whether foodstuffs coming from settlements established in breach of rules of international humanitarian law — Ethical considerations — Purchasing decisions of consumers — Misleading of consumers War and armed conflict — International humanitarian law — Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 — Article 49 — Obligation of States not to “deport or transfer part of its own civilian population into the territory it occupies” — Impact on labelling of products originating in Occupied Territories — Status of East Jerusalem, West Bank and Golan Heights as Occupied Territories — Whether products originating from Israeli settlements in the Occupied Territories must be labelled as such — The law of the European Union

The Oxford Guide to Treaties

10.1093/law/9780198848349.001.0001 ◽

2020 ◽

Keyword(s):

European Union ◽

International Relations ◽

International Law ◽

Reference Point ◽

International Agreements ◽

International Agreement ◽

The European Union ◽

Trade Relations ◽

Nation States

From trade relations to greenhouse gases, from shipwrecks to cybercrime, treaties structure the rights and obligations of states, international organizations, and individuals. For centuries, treaties have regulated relations among nation states. Today, they are the dominant source of international law. Thus, being adept with treaties and international agreements is an indispensable skill for anyone engaged in international relations. This revised and updated edition provides a comprehensive guide to treaties, shedding light on the rules and practices surrounding the making, interpretation, and operation of these instruments. The chapters are designed to introduce the law of treaties and offer practical insights into how treaties actually work. Foundational issues are covered, including what treaties are and when they should be used, alongside detailed analyses of treaty formation, application, interpretation, and exit. Special issues associated with treaties involving the European Union and other international organizations are also addressed. These are complimented by a set of model treaty clauses. Real examples illustrate the approaches that treaty-makers can take on topics such as entry into force, languages, reservations, and amendments. The book thus provides an authoritative reference point for anyone studying or involved in the creation or interpretation of treaties or other forms of international agreement.

Human Rights and International Humanitarian Law Breaches Attributable to International Organizations

10.1093/oso/9780198808442.003.0003 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

International Organization ◽

Humanitarian Law ◽

Attribution Of Responsibility

The chapter considers how to determine whether a particular internationally wrongful act is attributable to an international organization, or another actor under international law. It considers the circumstances in which international organizations may breach the human rights and international humanitarian law obligations that they are bound to respect and incur liability in the case of a breach. It also considers when the conduct amounting to a breach is an act of the organization for the purposes of assigning responsibility. It analyses the framework for the attribution of responsibility set out in the Draft Articles on the Responsibility of International Organizations.

International Organizations and the Fight for Accountability

10.1093/oso/9780198808442.001.0001 ◽

2017 ◽

Cited By ~ 3

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Progressive Development ◽

The Law

This book is concerned with reparation for human rights and international humanitarian law breaches committed by or attributed to international organizations. These breaches constitute internationally wrongful acts which, according to the International Law Commission’s Draft articles on the responsibility of international organizations, give rise to an obligation on the offending organization to afford reparation. However, in practice, the obligation to afford reparation is unimplemented. The book explores why this is. It considers how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and, particularly, their application to remedies and reparation owed to individuals. It reviews the various gaps in the law and the limitations of existing redress mechanisms. The book analyses the cogency of the arguments and rationales that have been used by international organizations to limit their liability and the scope and functioning of redress mechanisms, included by the resort to lex specialis principles. It is postulated that the standards of reparation must be drawn from the nature of the breach and the resulting harms and not by who is responsible for the breach. In this respect the book is an exercise in the progressive development of the law. Having determined that existing redress mechanisms cannot afford adequate or effective remedies and reparation, the book explores how to move towards a model that achieves greater compliance.

4. International organizations, states, and global governance

The Politics of International Law ◽

10.1093/hepl/9780198791201.003.0004 ◽

2021 ◽

pp. 69-90

Author(s):

Nicole Scicluna

Keyword(s):

Nineteenth Century ◽

European Union ◽

International Relations ◽

United Nations ◽

International Law ◽

Global Governance ◽

The European Union ◽

Western Values

This chapter evaluates global governance and how it relates to international law. It addresses the role of international organizations in processes of global governance, charting their rise from the nineteenth century onwards. Two international organizations exemplify semi-legalized governance beyond the state: the United Nations and the European Union. Sovereign states, of course, continue to play a central role in the institutions, processes, and mechanisms of global governance. The chapter then explores the extent to which a state’s power, influence, and legitimacy are affected by factors such as its domestic political arrangements and its adherence to the liberal, Western values that underpin the postwar order. It also assesses whether the proliferation of legalized and semi-legalized global governance regimes amounts to a constitutionalization of international relations.

Should International Law Ensure the Moral Acceptability of War?

Leiden Journal of International Law ◽

10.1017/s0922156513000034 ◽

2013 ◽

Vol 26 (2) ◽

pp. 253-270 ◽

Cited By ~ 2

Author(s):

JANINA DILL

Keyword(s):

International Relations ◽

International Law ◽

Just War ◽

Use Of Force ◽

Just War Theory ◽

Individual Rights ◽

Humanitarian Law ◽

Moral Standard ◽

Human Rights Law

AbstractJeff McMahan's challenge to conventional just-war theory is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations (IR) is decreasingly contestable and the regulation of which international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability. IHL's failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has raised questions about IHL's adequacy also among international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterizes the quintessential war as presenting what I call an ‘epistemically cloaked forced choice’ regarding the preservation of individual rights. Commitment to the above moral standard, then, means that IL should not prejudge the outcome of wars and must, somewhat paradoxically, diverge from morality when making prescriptions about the conduct of hostilities. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just-war theorists like McMahan that the failure of IL to track morality in war is merely a function of contingent institutional desiderata. IHL, with its moral limitations, has a continuing role to play in IR.

Jurisdiction and Combatant’s Privilege in the MH17 Trial: Treading the Line Between Domestic and International Criminal Justice

Netherlands International Law Review ◽

10.1007/s40802-021-00193-8 ◽

2021 ◽

Author(s):

Lachezar Yanev

Keyword(s):

International Law ◽

International Criminal ◽

Armed Forces ◽

War Crimes ◽

Criminal Code ◽

District Court ◽

Humanitarian Law ◽

Legal Questions ◽

The Hague

AbstractThis article focuses on the MH17 Trial that is currently underway in the Netherlands, dealing with the shooting down of a civilian aircraft over Eastern Ukraine and the resulting deaths of all 298 persons on board. Two legal questions arising from the prosecutorial strategy to charge the four accused with ‘ordinary’ crimes under the Dutch Criminal Code—instead of with war crimes—are studied here. First, the jurisdictional basis on which the District Court of The Hague is trying MH17, and its effect on the applicable laws, is examined. It is argued that, contrary to what the Prosecution has submitted, jurisdiction over the killing of the 93 non-Dutch nationals on board of flight MH17 can only be established on the basis of the less known title of delegated (representative) jurisdiction: a conclusion that also brings certain legal requirements. Second, this paper analyzes the way the MH17 Prosecutor defined the notion of ‘combatant’s privilege’ under international humanitarian law and his arguments for rejecting a combatant status for the separatist armed forces that shot down flight MH17 over Eastern Ukraine. All this analysis is then used to explain why it was indeed more sensible for the Prosecution to charge the four accused with murder and intentionally causing an aircraft to crash under Dutch criminal law, than with war crimes under international law.