This article discusses whether computer data constitutes an ‘object’, in the meaning of this term under international humanitarian law (IHL). After providing background on what is meant by ‘computer data’, and on the significance of any determination whether computer data constitutes an ‘object’ for the purposes of IHL, the article proceeds to consider the meaning of the term ‘object’ as found in the First Additional Protocol to the Geneva Conventions (API). Recourse is made to the customary rules of treaty interpretation while focusing on both the English and French versions of API. The ordinary meaning of the term ‘object’ in its context in API solely connotes material things, thus excluding computer data. Moreover, recourse to the object and purpose of API, or to so-called ‘evolutionary’ interpretation, does not lead to a different conclusion. Considering the importance of customary international law for states non-parties to API, and for the purposes of non-international armed conflicts, the article proceeds to analyse whether computer data constitutes an ‘object’ for the purposes of custom. The article analyses the development of the term ‘object’ in legal discourse over the past century in determining what states intended this term to mean, and finds that here, too, states considered ‘objects’ in the context of IHL to be material things. It also explains that there is no apparent trend among states as to whether data constitutes an ‘object’, whereas the paucity of official government statements is far from the necessary volume for it to carry particular legal significance.
A serious issue that has confronted the international community is the legality of humanitarian intervention. Although the majority of scholars reject the existence of a doctrine of humanitarian intervention, could the attacked state invoke the responsibility of an intervening state before an international tribunal? This article attempts to answer this question in light of the often misunderstood clean hands doctrine in international law. It first concludes that under the lex lata, humanitarian intervention is prohibited under international law. This raises the question whether the clean hands doctrine may nevertheless preclude a court or tribunal from adjudicating in favour of a state that has been subject to humanitarian intervention. Although the clean hands doctrine exists under international law in various manifestations, its applicability in cases concerning humanitarian intervention is lacking. The article finally considers whether the jus cogens status of the prohibition of the use of force would prevent the applicability of the clean hands doctrine to humanitarian intervention cases were the clean hands doctrine to evolve into a customary international legal norm.
This article is a response to an article published in this Journal by Professor Patrick Dumberry, criticising the Yukos tribunal’s conclusion that the clean hands doctrine does not constitute a general principle of law and is not a bar to an investor’s claim. Dumberry submits that strong arguments exist for considering the clean hands doctrine a general principle of law, and that tribunals, by barring claims concerning investments made contrary to host states’ laws, have been applying the doctrine. The present article contends that the Yukos tribunal is quite accurate. First, it submits that there are different forms of the clean hands doctrine, not all of which have received much support in international jurisprudence. Second, it argues that, in light of contemporary law in certain municipal legal systems, the different forms of the clean hands doctrine seemingly do not constitute general principles of law.
In the Obligations concerning Negotiations cases, the International Court of Justice (icj) ruled that it lacked jurisdiction to proceed to the merits since there was no dispute prior to the filing of the application by the Republic of the Marshall Islands (rmi) against the three respondent states – India, Pakistan and the United Kingdom – respectively. The present article considers more closely the basis of the requirement that a “dispute” exists for the icj to exercise its jurisdiction. It submits that the condition that a “dispute” exists relates to the essence of the Court’s judicial function. It then questions whether the respondent’s awareness of the applicant’s opposition to its views is a requirement for engaging the Court’s judicial function. After answering this question affirmatively, it questions whether reasons of judicial propriety dictate that a dispute must exist prior to the filing of an application. This question is also answered affirmatively.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
customersupport@researchsolutions.com
10624 S. Eastern Ave., Ste. A-614
Henderson, NV 89052, USA
Copyright © 2024 scite LLC. All rights reserved.
Made with 💙 for researchers
Part of the Research Solutions Family.