The author of this book, Sir Robert Yewdall Jennings, was one of the most distinguished British specialists in the field of International Law of the last century. The book starts with the traditional analysis of the different 'modes' of acquisition of territorial sovereignty as developed in doctrine since the very beginning of the science of international law. One of the merits of the book is precisely that, instead of focusing exclusively on or absolutely disregarding them, an approach other authors had adopted, it harmonizes the traditional modes with other elements that may influence the determination of sovereignty and that were not taken into account in the past. The traditional five 'modes' of acquisition of territorial sovereignty described by doctrine were: (1) occupation (2) prescription (3) cession (4) accession or accretion and (5) subjugation or conquest. In order to encompass other elements coming into play in the analysis of the acquisition of territorial sovereignty, the book included references to two devices of use in any dispute about territory: intertemporal law and the critical date. To complete the picture, a separate chapter of the book considers the place of recognition, acquiescence and estoppel in the realm of acquisition of title to territorial sovereignty. The book also clarifies the scope of estoppel in the field. It cannot by itself constitute a root of title, but it can assist in its determination.
Belligerent occupation is the occupation of territory that occurs either during or immediately after an armed conflict, or after the un-resisted, unilateral use of military force. This chapter covers the occupations that are regulated by the Civilian Convention. After a brief review of the law of belligerent occupation, it focuses on topics that are of concern to military commanders and their legal staff because they are likely to emerge in the course of military operations. Deportation of civilians from the occupied territory and the forcible transfer of civilians within occupied territory are prohibited and amount to grave breaches of the Civilian Convention. The Israeli practice of creating settlements in occupied territory has been condemned by the International Court of Justice as a violation of the Civilian Convention. Short-term detention is an area where the Civilian Convention is deficient.
A commander may be criminally liable if war crimes are committed by those under his or her command. This chapter addresses this liability known as command responsibility. The concept of command responsibility is now regarded as extending to certain superior-subordinate relationships in civilian life as well and hence tends to be called 'superior responsibility'. The chapter presents the principles of command responsibility drawn from the decisions of tribunals in the war crimes trials that followed the Second World War. Some enlightenment of questions of command responsibility can be provided by the Statute and practice of the ICTY and the ICC Statute. The reference to a legal obligation to obey orders is a reference to the requirements of national law, for example, military law, which, in many countries, makes it an offence for soldiers to disobey orders.
This chapter supplements the standard works on the law of internal armed conflicts by concentrating on the law relating to the conduct of hostilities in such conflicts. The law is to be found in certain basic principles of customary law, including principles enunciated in the Hague Regulations, in common Art. 3 to the Geneva Conventions and in Protocol II. There continues to be a distinction in law between national liberation struggles, internal armed conflicts, and internal armed conflicts to which Protocol II of 1977 applies, because the applicable legal regime is different in each case. Common Art. 3 does not deal directly with the conduct of hostilities. It seems only to protect the victims of such conflicts. Finally, the chapter presents the body of law applicable to internal armed conflicts as a set of rules applicable to all parties to internal armed conflicts.
The need for the preservation of cultural property, even in wartime, is based on the principle that it forms part of the common property of mankind. This chapter summarizes the law which has gradually been developed to provide protection for cultural property in time of armed conflict. There are two main problems concerning protection of cultural property in war: damage to cultural monuments, for example by bombing as in the case of Dresden, and the looting of art treasures, as in the case of the Rosetta Stone which passed from Egypt through French to British hands and now rests in the British Museum. The Hague Regulations require 'buildings dedicated to religion, art, science, or charitable purposes and historic monuments' to be spared so far as possible during sieges and bombardments, provided they are not being used for military purposes.
This book presents a message that there is no effective international legal order to restrain the unilateralism of States. It provides the basic reasons which make unilateralism inevitable. States owe their existence to a matter of historical fact and do not have their statehood conceded to them by a higher authority. The book underlines that it is essential for the discipline of international law to recognise that international society consists of frightened 'independent States', embroiled in an anxiety-ridden drive to secure their own existence, while enveloping themselves in the 'lawfare' of the value nihilism which underlies modern legal positivism. The wider context is a commitment to a classical ontology of natural law and to a more usual understanding of decadence, whether of international law or anything else. The book deconstructs the illusory fabric of an international legal community supposedly resting in a common consciousness of a customary international law. International law doctrine asks us to imagine that States have a juridical conscience (an opinion juris) which evolves historically, as they become aware of how their repeated conduct reflects a juridical conviction that this conduct is required by Law. This view of international law as rooted finally in custom is an illusion of nineteenth-century legal historicism which was already bankrupt by 1914, with the disintegration of European civilisation in the Great War.
This chapter traces the doctrinal tendency to hypothesise the concept of a complete law of territory as part of an international legal system in which the 'irrelevant' dimensions of politics, history and economics have no part. This doctrinal tendency may best be summarised as the growth of 'statism', the acceptance by jurists that law had to be equated with the all-embracing and exclusive power of the nineteenth-century State to characterise an event or an act as juridical. The chapter argues has been that jurists have not given any reasoned consideration to their decision to adopt the principle of effectivity in the nineteenth century. It makes it clear that there is no compelling legal, scientific reason for accepting concepts of territorial sovereignty and a law of territory which have no material, economic content at all.
Law on the battlefield conveniently falls into two parts: how you fight the enemy armed forces and how you protect the enemy's civilian population. This chapter deals with the first part of law on the battlefield. The reason for the good faith provision of the law of armed conflict is to prevent the abuse, and the consequent undermining, of the protection afforded by the law. The essence of perfidy is the abuse of protected status to effect the killing, wounding or capture of the enemy; ruses of war, while involving deception, do not involve the abuse of protected status. Psychological operations are perfectly legitimate provided they do not involve abuse of any protection afforded under the law of war. One of the main purposes of the law of armed conflict, ever since the first Geneva Convention of 1864, has been to ensure the treatment of the wounded and sick.
Although the law of war has been mainly concerned with the protection of human life, various principles of customary law can work towards the protection of the environment. This chapter discusses three treaty provisions dealing directly with the protection of the environment during armed conflicts. First, the Convention on the Prohibition of Military and Any Other Hostile Use of Environmental Modification Techniques, 1977, known as the ENMOD Convention; secondly, Art. 35, paragraph 3, of Protocol I; and thirdly, Art. 55 of Protocol I. The Mines Protocol of 1980 to the Weapons Convention contributes to environmental protection by prohibiting indiscriminate use of mines, restricting the use of remotely delivered mines and requiring the recording of certain minefields. The Amended Mines Protocol of 1996 adds to this protection, in particular, in relation to the requirement to record mines, to fit self-deactivation devices to remotely delivered mines and in the clearance of minefield.
The nature of general custom is an easy starting-point in an argument which tries to place legal doctrine at the head of the sources of international law. If custom were simply tacit convention, rules relating to the treaty-making powers of States would suffice to identify the acts which create custom. Legal rules on estoppel and acquiescence could also help considerably. The Swiss jurist Rivier is given the honour of being the first to employ the modern concept of opinion juris as an essential psychological element in his concept of general customary law. It is imperative for the international lawyer to understand the phenomenon of nationalism, if only because its appearance in the form of the right to self-determination touches upon so many aspects of what is commonly regarded as the province of international law. Nationalism affects issues relating to territory, treaties, the use of force and other matters.