An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law

MacLaren, Malcolm; Schwendimann, Felix

doi:10.1017/s2071832200014267

Cited by 7 publications

(2 citation statements)

References 7 publications

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“…the divisions prevailing in the state community and a climate dominated by 11.9.2001 might, if anything, lead to a codification to the detriment of the protection of individuals through the enhancement of coercive measures available for state security. 117 Indeed, the question may be asked as to whether a uniform law of armed conflict would actually achieve anything. With so many already well-respected and uniformly ratified treaties covering the use of landmines, conventional weapons, the protection of cultural property, and the treatment of civilians and non-combatants in wartime, to name only a few, 118 one could ask whether a uniform law would contribute anything new.…”

Section: Discussionmentioning

confidence: 99%

Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts

Crawford¹

2007

Leiden Journal of International Law

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This article examines the possibility of creating a law of armed conflict that could be uniformly applied to both international and non-international armed conflict. The article looks at the history of modern armed conflict, and charts the progression of warfare from a predominantly interstate event to that which is more likely to be characterized as non-international or internal. The increasing prevalence of non-international armed conflicts throughout the twentieth century has lead to ongoing moves on behalf of the international community to bring the regulation of such conflicts further within the ambit of international regulation. With this in mind, the article argues that such moves have blurred the historical distinction between types of armed conflict to the point where the distinction could be eliminated altogether. By looking at international treaties, tribunals, and state practice, this article asserts that the law of armed conflict could be uniformly applied, with the aim of ensuring that all participants in armed conflict are equally and humanely treated.

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Section: Discussionmentioning

confidence: 99%

Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts

Crawford¹

2007

Leiden Journal of International Law

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“…This approach loses credibility-including across North/South lines-if it is used to keep power over the formation of custom in the hands of the same powerful states, regardless of their actual contribution. Thus, even though some scholars assert that the United States is to be considered as specially affected regarding all rules of international humanitarian law, 39 such a claim is wrong if it purports to grant to the United States (or any other modern powerful state) a generalized status and power and does not take into consideration the different circumstances of each rule separately. The allocation of weight can vary in different scenarios and should be dynamic and flexible.…”

Section: Application Of the Specially-affecting States Approachmentioning

confidence: 99%

The Specially-Affecting States Doctrine

Yeini¹

2018

Am. j. int. law

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The orthodox view of the Specially-Affected States Doctrine (SASD), grounded in the International Court of Justice's (ICJ) 1969 judgment in the North Sea Continental Shelf cases, is that practice leading to the emergence of a customary rule must include that of states “whose interests were specially affected.” The framing of this passage of the North Sea Continental Shelf judgment seems to imply both a positive and a negative importance for the practice of specially-affected states. Such practice is a requirement for the emergence of a new rule of customary international law. Acceptance by specially-affected states is, in other words, necessary but not sufficient for a rule of custom to emerge. Whether practice of specially-affected states can be sufficient to form a general custom is not resolved by this formulation, although it seems reasonable to infer that the ICJ had in mind that the combined involvement of specially-affected and other states was needed for the formation of such a rule of customary international law concerning basic principles of continental shelf delimitation. Conversely, the absence of rule-supporting practice by specially-affected states would have a negating effect on the emergence of a rule of customary international law, despite rule-affirming practice of states not specially affected. On this view, practice of only such states could not crystalize into a custom. One commentator has suggested that the negative construction does not mean that a single specially-affected state necessarily holds veto power over the formation of a new rule of customary international law, but asserted that “[i]f several ‘states whose interests are specially affected’ object to the formation of a custom, no custom can emerge.” Unsurprisingly, given this level of abstraction, such formulations do not themselves provide specificity as to how many (or which) specially-affected states would be sufficient to prevent the formation of a custom in a particular situation.

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The Environment and the Laws of Armed Conflict

Dienelt¹

2022

Armed Conflicts and the Environment

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An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law

Cited by 7 publications

References 7 publications

Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts

Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts

The Specially-Affecting States Doctrine

The Environment and the Laws of Armed Conflict

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