Menno T. Kamminga and Martin Scheinin (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and ...
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Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.Less
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.
Isabelle Van Damme
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562237
- eISBN:
- 9780191705588
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562237.003.0002
- Subject:
- Law, Public International Law
This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified ...
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This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. The chapter explains that even if treaty-based, treaty interpretation is governed by principles rather than rules. It also provides an introduction to some of the Appellate Body's techniques of interpretation and reflects on the need and status of special principles of treaty interpretation.Less
This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. The chapter explains that even if treaty-based, treaty interpretation is governed by principles rather than rules. It also provides an introduction to some of the Appellate Body's techniques of interpretation and reflects on the need and status of special principles of treaty interpretation.
Matthew Craven
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217625
- eISBN:
- 9780191705410
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217625.003.0003
- Subject:
- Law, Public International Law
This chapter discusses the process of codification. Topics covered include: the move to codification, the part played by the International Law Commission and the International Law Association, the ...
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This chapter discusses the process of codification. Topics covered include: the move to codification, the part played by the International Law Commission and the International Law Association, the Waldock Reports, the relationship with the law of treaties, the question of new States, semi-sovereignty, dispositive treaties, and finally the adjustments made at the Vienna Conference. It is shown that those involved in the codification were unable to deal with the problem of succession in a way that did not draw within it questions of identity and status, or conclusions about the relationship between international and municipal law.Less
This chapter discusses the process of codification. Topics covered include: the move to codification, the part played by the International Law Commission and the International Law Association, the Waldock Reports, the relationship with the law of treaties, the question of new States, semi-sovereignty, dispositive treaties, and finally the adjustments made at the Vienna Conference. It is shown that those involved in the codification were unable to deal with the problem of succession in a way that did not draw within it questions of identity and status, or conclusions about the relationship between international and municipal law.
Michael G. Kearney
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199232451
- eISBN:
- 9780191716034
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232451.003.0006
- Subject:
- Law, Public International Law
This chapter makes the case for the inclusion in the Rome Statute of a distinct and inchoate crime of ‘direct and public incitement to aggression’. A similar offence was included in the International ...
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This chapter makes the case for the inclusion in the Rome Statute of a distinct and inchoate crime of ‘direct and public incitement to aggression’. A similar offence was included in the International Law Commission's draft Code of Offences Against the Peace and Security of Mankind in 1954 yet omitted from the 1996 draft, a move which is herein considered. The jurisprudence of the ad hoc international criminal tribunals provide guidance on the criminalization of incitement to crimes of an international dimension, especially cases dealing with charges of hate speech, war propaganda, and incitement to genocide, war crimes, or crimes against humanity. The Rome Statute itself, and its drafting, is also discussed, particularly with regards the crime of aggression.Less
This chapter makes the case for the inclusion in the Rome Statute of a distinct and inchoate crime of ‘direct and public incitement to aggression’. A similar offence was included in the International Law Commission's draft Code of Offences Against the Peace and Security of Mankind in 1954 yet omitted from the 1996 draft, a move which is herein considered. The jurisprudence of the ad hoc international criminal tribunals provide guidance on the criminalization of incitement to crimes of an international dimension, especially cases dealing with charges of hate speech, war propaganda, and incitement to genocide, war crimes, or crimes against humanity. The Rome Statute itself, and its drafting, is also discussed, particularly with regards the crime of aggression.
Theodor Meron
- Published in print:
- 1991
- Published Online:
- March 2012
- ISBN:
- 9780198257455
- eISBN:
- 9780191681769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198257455.003.0004
- Subject:
- Law, Public International Law
This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian ...
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This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.Less
This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0002
- Subject:
- Law, Public International Law
This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international ...
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This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.Less
This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.
Chittharanjan F. Amerasinghe
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199212385
- eISBN:
- 9780191707230
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199212385.001.0001
- Subject:
- Law, Public International Law
This book offers an up-to-date juristic exposition and analysis of diplomatic protection as an institution of public international law. Diplomatic protection is primarily exercised by States towards ...
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This book offers an up-to-date juristic exposition and analysis of diplomatic protection as an institution of public international law. Diplomatic protection is primarily exercised by States towards their nationals, and exceptionally non-nationals, against violations of international law by other States, and is one of the oldest traditions of international law. The book starts with a history of the subject, and charts the development of diplomatic protection conceived as an institution of international law. It goes on to discuss the violations of international law which can trigger diplomatic protection, arrangements that are excluded from this type of protection, conflicts of interests underlying the principle and how these can be resolved, and the influence of human rights on the area. Subsequent chapters look at attempts to codify the law of diplomatic protection, and offer a critical examination of this in the light of modern policy considerations, and the recent work of the International Law Commission. The book concludes with an assessment of recent changes in the law and the importance of these from the point of view of the individual.Less
This book offers an up-to-date juristic exposition and analysis of diplomatic protection as an institution of public international law. Diplomatic protection is primarily exercised by States towards their nationals, and exceptionally non-nationals, against violations of international law by other States, and is one of the oldest traditions of international law. The book starts with a history of the subject, and charts the development of diplomatic protection conceived as an institution of international law. It goes on to discuss the violations of international law which can trigger diplomatic protection, arrangements that are excluded from this type of protection, conflicts of interests underlying the principle and how these can be resolved, and the influence of human rights on the area. Subsequent chapters look at attempts to codify the law of diplomatic protection, and offer a critical examination of this in the light of modern policy considerations, and the recent work of the International Law Commission. The book concludes with an assessment of recent changes in the law and the importance of these from the point of view of the individual.
O.P. Sharma
- Published in print:
- 2010
- Published Online:
- October 2012
- ISBN:
- 9780198060000
- eISBN:
- 9780199081981
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198060000.003.0003
- Subject:
- Law, Public International Law
This chapter describes the legal status of territorial sea, international straits, and archipelagic waters around a coastal State. The author describes how territorial waters around a coastal State ...
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This chapter describes the legal status of territorial sea, international straits, and archipelagic waters around a coastal State. The author describes how territorial waters around a coastal State were debated (it now rest at twelve nautical miles), and how the sovereignty of these waters, the seabed under them, and the air space above them was ensured. The Right of Innocent Passage— especially that of warships—is then discussed. The author goes on to describe problems relating to the delimitation of the territorial waters between adjacent coastal States. The most important juridical question concerning ocean navigation discussed in the Third United Nations Conference on the Law of the Sea (UNCLOS) was the nature of the Right of Innocent Passage through international straits. The Corfu Channel decision (allowing warships and merchant vessels free transit through international states during peace time) had considerable impact upon deliberations of the International Law Commission. The author also shows how India closely monitored the extent of support to the concept of Unimpeded Transit Passage. The Chapter concludes with a discussion of drawing of baselines over archpelagic waters and their control by coastal States, with a focus on India’s interests in the Andaman and Nicobar islands. The evolution and formal acceptance of the concept of archipelagic States for the first time was a distinctive achievement of the Third UNCLOS.Less
This chapter describes the legal status of territorial sea, international straits, and archipelagic waters around a coastal State. The author describes how territorial waters around a coastal State were debated (it now rest at twelve nautical miles), and how the sovereignty of these waters, the seabed under them, and the air space above them was ensured. The Right of Innocent Passage— especially that of warships—is then discussed. The author goes on to describe problems relating to the delimitation of the territorial waters between adjacent coastal States. The most important juridical question concerning ocean navigation discussed in the Third United Nations Conference on the Law of the Sea (UNCLOS) was the nature of the Right of Innocent Passage through international straits. The Corfu Channel decision (allowing warships and merchant vessels free transit through international states during peace time) had considerable impact upon deliberations of the International Law Commission. The author also shows how India closely monitored the extent of support to the concept of Unimpeded Transit Passage. The Chapter concludes with a discussion of drawing of baselines over archpelagic waters and their control by coastal States, with a focus on India’s interests in the Andaman and Nicobar islands. The evolution and formal acceptance of the concept of archipelagic States for the first time was a distinctive achievement of the Third UNCLOS.
O.P. Sharma
- Published in print:
- 2010
- Published Online:
- October 2012
- ISBN:
- 9780198060000
- eISBN:
- 9780199081981
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198060000.003.0004
- Subject:
- Law, Public International Law
This chapter presents a discussion on the contiguous zone i.e. the waters contiguous to and beyond the territorial sea in which States have limited powers for the enforcement of customs, fiscal, ...
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This chapter presents a discussion on the contiguous zone i.e. the waters contiguous to and beyond the territorial sea in which States have limited powers for the enforcement of customs, fiscal, sanitary, and immigration laws. Although the Hague Codification Conference ended in failure, the contiguous zone was not eliminated, but began to be more and more a component of international practice. India has supported a twelve-mile (i.e. 24 nautical miles from the baseline of a coastal state) contiguous zone, though it did not make any formal proposal to that effect in the 1958 Geneva Conference on the Law of the Sea. The chapter concludes by discussing contiguous zones and the Right of Hot Pursuit and other issues of general security. The creation of contiguous zones in the interests of security is also discussed.Less
This chapter presents a discussion on the contiguous zone i.e. the waters contiguous to and beyond the territorial sea in which States have limited powers for the enforcement of customs, fiscal, sanitary, and immigration laws. Although the Hague Codification Conference ended in failure, the contiguous zone was not eliminated, but began to be more and more a component of international practice. India has supported a twelve-mile (i.e. 24 nautical miles from the baseline of a coastal state) contiguous zone, though it did not make any formal proposal to that effect in the 1958 Geneva Conference on the Law of the Sea. The chapter concludes by discussing contiguous zones and the Right of Hot Pursuit and other issues of general security. The creation of contiguous zones in the interests of security is also discussed.
Chittharanjan F. Amerasinghe
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199212385
- eISBN:
- 9780191707230
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199212385.003.0010
- Subject:
- Law, Public International Law
This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple ...
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This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple nationality, the effective link theory, and stateless persons and refugees. It shows that the ILC has drafted a provision extending the principles of diplomatic protection adopted for corporations to other legal persons to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10, respectively, apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations.Less
This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple nationality, the effective link theory, and stateless persons and refugees. It shows that the ILC has drafted a provision extending the principles of diplomatic protection adopted for corporations to other legal persons to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10, respectively, apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations.
Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder (eds)
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199588817
- eISBN:
- 9780191725272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588817.001.0001
- Subject:
- Law, Public International Law
This Festschrift, dedicated to Judge Bruno Simma, traces the development of international law from regulating bilateral state-to-state relationships towards strengthening the entire international ...
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This Festschrift, dedicated to Judge Bruno Simma, traces the development of international law from regulating bilateral state-to-state relationships towards strengthening the entire international community by protecting human security, the global environment, and human rights. It provides both theoretical and practical insights into these sometimes conflicting goals, their basis in international law, and the role played by international institutions charged with upholding these values and interests. The work thus examines the mechanism by which international law contributes to the realization not only of individual State interests, but the interests of the international community as a whole. From this vantage point, it looks at the various functions that international law fulfils in the international community, from law-making and institution-building towards adjudication and the securing of human rights. Taken together, the chapters paint a detailed, but nevertheless comprehensive picture of the realization of community interest in contemporary international law. As professor and judge, Bruno Simma has contributed to all of these tasks: providing ground-breaking theoretical work, serving in the International Law Commission and in the Committee for Economic, Social, and Cultural Rights, and finally, as a judge at the International Court of Justice in The Hague.Less
This Festschrift, dedicated to Judge Bruno Simma, traces the development of international law from regulating bilateral state-to-state relationships towards strengthening the entire international community by protecting human security, the global environment, and human rights. It provides both theoretical and practical insights into these sometimes conflicting goals, their basis in international law, and the role played by international institutions charged with upholding these values and interests. The work thus examines the mechanism by which international law contributes to the realization not only of individual State interests, but the interests of the international community as a whole. From this vantage point, it looks at the various functions that international law fulfils in the international community, from law-making and institution-building towards adjudication and the securing of human rights. Taken together, the chapters paint a detailed, but nevertheless comprehensive picture of the realization of community interest in contemporary international law. As professor and judge, Bruno Simma has contributed to all of these tasks: providing ground-breaking theoretical work, serving in the International Law Commission and in the Committee for Economic, Social, and Cultural Rights, and finally, as a judge at the International Court of Justice in The Hague.
Geoffrey Blest
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780198206996
- eISBN:
- 9780191677427
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198206996.003.0006
- Subject:
- History, Military History
This chapter discusses the contributions of the international Courts in relation to the clarification and development of the law of war with the possible exception of the Nuremberg Principles. It ...
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This chapter discusses the contributions of the international Courts in relation to the clarification and development of the law of war with the possible exception of the Nuremberg Principles. It explains that the Nuremberg Principles originated in a Resolution of the General Assembly (Resolution 95, adopted on 11 November 1946). It notes that the resolution is reaffirmed in some fashion by the UN's International Law Commission in mid-1950. It clarifies that the GA's unanimous vote ‘indicated subscription by a large number of States to the substantive law of war crimes, including the principle of individual criminal responsibility, and to the lawful exercise of criminal jurisdiction over such individuals’. It emphasizes that in the International Military tribunals known to history as the Nuremberg and Tokyo trials, defendants were also tried for other alleged offences. It stresses the importance of determining the relationship of those other offences with the law of war.Less
This chapter discusses the contributions of the international Courts in relation to the clarification and development of the law of war with the possible exception of the Nuremberg Principles. It explains that the Nuremberg Principles originated in a Resolution of the General Assembly (Resolution 95, adopted on 11 November 1946). It notes that the resolution is reaffirmed in some fashion by the UN's International Law Commission in mid-1950. It clarifies that the GA's unanimous vote ‘indicated subscription by a large number of States to the substantive law of war crimes, including the principle of individual criminal responsibility, and to the lawful exercise of criminal jurisdiction over such individuals’. It emphasizes that in the International Military tribunals known to history as the Nuremberg and Tokyo trials, defendants were also tried for other alleged offences. It stresses the importance of determining the relationship of those other offences with the law of war.
Terence C. Halliday, Susan Block-Lieb, and Bruce G. Carruthers
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199873722
- eISBN:
- 9780199980000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199873722.003.0010
- Subject:
- Law, Company and Commercial Law
Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management ...
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Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management should also be integral to the meta-bargaining that produces the rules that govern everyday corporate bankruptcies. Such is not the case. In many historical circumstances—in countries with economies both advanced and developing; in situations of economic crisis and in ordinary times; in Europe, North America, and Asia—the stakeholders who mobilize to craft national bankruptcy law seldom include debtors. Debtors are also conspicuous by their absence from forums of global norm-making in which international financial institutions or international governance organizations create norms designed to guide national lawmaking. In short, a class of bankruptcy players for whom everyday bargaining over debt obligations is a matter of corporate life or death seldom appears in the forums that institutionalize the rules by which their individual fates are determined. How is this puzzle to be explained? This chapter examines hypotheses that address this issue through three research projects. The first studied the politics behind two landmark pieces of lawmaking in advanced economies—the US Bankruptcy Code of 1978 and the English Insolvency Act of 1986. The second project studied three Asian economies in the wake of the Asian Financial Crisis. The third project examines the decade-long initiatives by the UN Commission on International Trade Law to create global norms for corporate bankruptcy regimes.Less
Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management should also be integral to the meta-bargaining that produces the rules that govern everyday corporate bankruptcies. Such is not the case. In many historical circumstances—in countries with economies both advanced and developing; in situations of economic crisis and in ordinary times; in Europe, North America, and Asia—the stakeholders who mobilize to craft national bankruptcy law seldom include debtors. Debtors are also conspicuous by their absence from forums of global norm-making in which international financial institutions or international governance organizations create norms designed to guide national lawmaking. In short, a class of bankruptcy players for whom everyday bargaining over debt obligations is a matter of corporate life or death seldom appears in the forums that institutionalize the rules by which their individual fates are determined. How is this puzzle to be explained? This chapter examines hypotheses that address this issue through three research projects. The first studied the politics behind two landmark pieces of lawmaking in advanced economies—the US Bankruptcy Code of 1978 and the English Insolvency Act of 1986. The second project studied three Asian economies in the wake of the Asian Financial Crisis. The third project examines the decade-long initiatives by the UN Commission on International Trade Law to create global norms for corporate bankruptcy regimes.
NATALINO RONZITTI
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199233083
- eISBN:
- 9780191696589
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199233083.003.0003
- Subject:
- Law, Human Rights and Immigration
This chapter describes the access to justice by individuals in order to obtain compensation for violations of the law of war. It is shown that Resolution 2005/35 sets out basic principles and ...
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This chapter describes the access to justice by individuals in order to obtain compensation for violations of the law of war. It is shown that Resolution 2005/35 sets out basic principles and guidelines for a remedy and reparation for victims of both violations of human rights and serious violations of international humanitarian law (IHL). It is also stated how difficult it is for a victim to obtain compensation. The major hurdles include immunity of states and international organizations from civil jurisdiction in foreign states, immunity of state property, enforcing judgments on damages in foreign states, immunity of state officials, political question doctrine, the inter-state character of IHL, the non-self-executing nature of IHL, International Law Commission (ILC) draft articles on state responsibility and the individual, peace settlements and reparations for law of war violations, and statutory limitation under domestic law. Moreover, the proceedings for recovering damages before the International Criminal Court (ICC), the two ad hoc international tribunals, and the hybrid tribunals are considered. Examples of mechanisms that allow the victim to obtain compensation are also addressed.Less
This chapter describes the access to justice by individuals in order to obtain compensation for violations of the law of war. It is shown that Resolution 2005/35 sets out basic principles and guidelines for a remedy and reparation for victims of both violations of human rights and serious violations of international humanitarian law (IHL). It is also stated how difficult it is for a victim to obtain compensation. The major hurdles include immunity of states and international organizations from civil jurisdiction in foreign states, immunity of state property, enforcing judgments on damages in foreign states, immunity of state officials, political question doctrine, the inter-state character of IHL, the non-self-executing nature of IHL, International Law Commission (ILC) draft articles on state responsibility and the individual, peace settlements and reparations for law of war violations, and statutory limitation under domestic law. Moreover, the proceedings for recovering damages before the International Criminal Court (ICC), the two ad hoc international tribunals, and the hybrid tribunals are considered. Examples of mechanisms that allow the victim to obtain compensation are also addressed.
James Crawford
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199588817
- eISBN:
- 9780191725272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588817.003.0017
- Subject:
- Law, Public International Law
Nowadays it seems that international law develops more rapidly than international society does, seeking to serve as a tractor rather than a trailer, reversing Cicero's scheme of society and law. But ...
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Nowadays it seems that international law develops more rapidly than international society does, seeking to serve as a tractor rather than a trailer, reversing Cicero's scheme of society and law. But where this happens, the developments may be fragile and called into question. A good illustration of this proposition can be seen in the debate as to the existence in international law of communitarian norms entailing obligations erga omnes, a debate carried on almost entirely in the abstract, with little or no reference to earlier instances of international adjudication or State practice. The idea was reflected, in the Draft Articles on State Responsibility adopted by the International Law Commission (ILC) on first reading in 1996, in two unwieldy provisions, draft Article 19 (dealing with ‘international crimes of States’) and draft Article 40 (defining the ‘injured State’ to include, in the case of State crimes and in certain other cases, all States). On second reading, these proposals were radically changed. Draft Article 19 disappeared, being replaced by Articles 40 and 41 (dealing with consequences of serious breaches of peremptory norms). Draft Article 40 was transfigured, emerging as Articles 42 and 48 (distinguishing between the ‘injured State’ and other States entitled to invoke responsibility even though not individually injured by the breach). This chapter focuses on Article 48 and the accompanying notion of invocation of responsibility in the public interest.Less
Nowadays it seems that international law develops more rapidly than international society does, seeking to serve as a tractor rather than a trailer, reversing Cicero's scheme of society and law. But where this happens, the developments may be fragile and called into question. A good illustration of this proposition can be seen in the debate as to the existence in international law of communitarian norms entailing obligations erga omnes, a debate carried on almost entirely in the abstract, with little or no reference to earlier instances of international adjudication or State practice. The idea was reflected, in the Draft Articles on State Responsibility adopted by the International Law Commission (ILC) on first reading in 1996, in two unwieldy provisions, draft Article 19 (dealing with ‘international crimes of States’) and draft Article 40 (defining the ‘injured State’ to include, in the case of State crimes and in certain other cases, all States). On second reading, these proposals were radically changed. Draft Article 19 disappeared, being replaced by Articles 40 and 41 (dealing with consequences of serious breaches of peremptory norms). Draft Article 40 was transfigured, emerging as Articles 42 and 48 (distinguishing between the ‘injured State’ and other States entitled to invoke responsibility even though not individually injured by the breach). This chapter focuses on Article 48 and the accompanying notion of invocation of responsibility in the public interest.
Marco Roscini
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199655014
- eISBN:
- 9780191747991
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199655014.003.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
Chapter 1 identifies the cyber threats to international security and the applicable laws. It starts by identifying the main cases of cyber operations against states of which other states were ...
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Chapter 1 identifies the cyber threats to international security and the applicable laws. It starts by identifying the main cases of cyber operations against states of which other states were suspected. It defines what ‘cyber operation’, ‘cyber attack’, and ‘cyber exploitation’ are and classifies them. The applicable rules are then identified and the point is made that existing jus ad bellum and jus in bello rules apply to cyber operations even though they were drafted before the cyber age. Finally, the problems related to identification and attribution in cyber operations are discussed, in particular the application of the secondary rules on state responsibility, as contained in the 2001 Articles on State Responsibility adopted by the International Law Commission.Less
Chapter 1 identifies the cyber threats to international security and the applicable laws. It starts by identifying the main cases of cyber operations against states of which other states were suspected. It defines what ‘cyber operation’, ‘cyber attack’, and ‘cyber exploitation’ are and classifies them. The applicable rules are then identified and the point is made that existing jus ad bellum and jus in bello rules apply to cyber operations even though they were drafted before the cyber age. Finally, the problems related to identification and attribution in cyber operations are discussed, in particular the application of the secondary rules on state responsibility, as contained in the 2001 Articles on State Responsibility adopted by the International Law Commission.
Luigi Sbolci
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199588916
- eISBN:
- 9780191728938
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588916.003.0009
- Subject:
- Law, Public International Law, Human Rights and Immigration
The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the ...
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The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the use of supplementary means to various assumptions connected with the outcome of the interpretation made on the basis of the general rule contained in Article 31. The list of the supplementary means laid down in Article 32 is not exhaustive and the Vienna Convention says nothing about the concept of preparatory works, of circumstances surrounding the conclusion of the treaty, and about the concept of other supplementary means of interpretation. These and other critical observations can be resolved by reference to indications from the comments of the International Law Commission and from international case law. The rule established in Article 32 can be considered to correspond to the international custom. The use of supplementary means of interpretation is important when the application of the general rule leaves the meaning ambiguous, obscure, or absurd. Recent international case law appears to illustrate the reasons that can lead the interpreter to find, in the supplementary means, a confirmation of the meaning emerging from the application of the general rule expressed in Article 31.Less
The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the use of supplementary means to various assumptions connected with the outcome of the interpretation made on the basis of the general rule contained in Article 31. The list of the supplementary means laid down in Article 32 is not exhaustive and the Vienna Convention says nothing about the concept of preparatory works, of circumstances surrounding the conclusion of the treaty, and about the concept of other supplementary means of interpretation. These and other critical observations can be resolved by reference to indications from the comments of the International Law Commission and from international case law. The rule established in Article 32 can be considered to correspond to the international custom. The use of supplementary means of interpretation is important when the application of the general rule leaves the meaning ambiguous, obscure, or absurd. Recent international case law appears to illustrate the reasons that can lead the interpreter to find, in the supplementary means, a confirmation of the meaning emerging from the application of the general rule expressed in Article 31.
Nina H. B. Jørgensen
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198298618
- eISBN:
- 9780191685491
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298618.003.0002
- Subject:
- Law, Public International Law
This chapter describes the efforts to create a code of international criminal law of universal application. The lessons of Nuremberg informed subsequent efforts to advance international criminal law. ...
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This chapter describes the efforts to create a code of international criminal law of universal application. The lessons of Nuremberg informed subsequent efforts to advance international criminal law. This meant an emphasis on individual criminal responsibility until in 1976 the International Law Commission resurrected the early interest in the notion of state criminal responsibility.Less
This chapter describes the efforts to create a code of international criminal law of universal application. The lessons of Nuremberg informed subsequent efforts to advance international criminal law. This meant an emphasis on individual criminal responsibility until in 1976 the International Law Commission resurrected the early interest in the notion of state criminal responsibility.
Mathias Forteau
- Published in print:
- 2018
- Published Online:
- January 2018
- ISBN:
- 9780190697570
- eISBN:
- 9780190697600
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190697570.003.0008
- Subject:
- Law, Public International Law, Comparative Law
The work of the ILC constitutes an interesting illustration of a positive interplay between international law and different domestic approaches to international law. Section I of this chapter ...
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The work of the ILC constitutes an interesting illustration of a positive interplay between international law and different domestic approaches to international law. Section I of this chapter identifies the institutional ingredients that are required in order for comparative international law to obtain a sufficiently representative conception of international law. Section II explores the main tools used by the ILC on the substantive plane to draft common rules on the basis of existing and possibly divergent state practice or opinio juris. Focus is placed on customary international law insofar as general principles of international law have never been considered by the ILC as a field to be explored on its own—presumably because both codification and progressive development of international law require the Commission to base its proposal at least on some emerging state practice.Less
The work of the ILC constitutes an interesting illustration of a positive interplay between international law and different domestic approaches to international law. Section I of this chapter identifies the institutional ingredients that are required in order for comparative international law to obtain a sufficiently representative conception of international law. Section II explores the main tools used by the ILC on the substantive plane to draft common rules on the basis of existing and possibly divergent state practice or opinio juris. Focus is placed on customary international law insofar as general principles of international law have never been considered by the ILC as a field to be explored on its own—presumably because both codification and progressive development of international law require the Commission to base its proposal at least on some emerging state practice.
Georg Nolte
- Published in print:
- 2018
- Published Online:
- July 2018
- ISBN:
- 9780198825210
- eISBN:
- 9780191863844
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198825210.003.0007
- Subject:
- Law, Public International Law
The chapter looks at community interests from the perspective of the International Law Commission. It examines both secondary and primary rules of international law, as they have been articulated by ...
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The chapter looks at community interests from the perspective of the International Law Commission. It examines both secondary and primary rules of international law, as they have been articulated by the Commission, and their relevance for the recognition and implementation of community interests. The picture which emerges, however, fits the narrative of “from self-interest to community interest” only to a certain extent. Whereas the Commission has indeed recognized, or developed, certain primary rules which more fully articulate community interests, it has been reluctant to reformulate secondary rules, with the exception of jus cogens. The Commission has more recently rather insisted that the traditional state-consent-oriented secondary rules concerning the formation of customary international law and regarding the interpretation of treaties continue to be valid in the face of other actors and forms of action which push toward the recognition of more and thicker community interests.Less
The chapter looks at community interests from the perspective of the International Law Commission. It examines both secondary and primary rules of international law, as they have been articulated by the Commission, and their relevance for the recognition and implementation of community interests. The picture which emerges, however, fits the narrative of “from self-interest to community interest” only to a certain extent. Whereas the Commission has indeed recognized, or developed, certain primary rules which more fully articulate community interests, it has been reluctant to reformulate secondary rules, with the exception of jus cogens. The Commission has more recently rather insisted that the traditional state-consent-oriented secondary rules concerning the formation of customary international law and regarding the interpretation of treaties continue to be valid in the face of other actors and forms of action which push toward the recognition of more and thicker community interests.
