Enhance your library’s holdings with our comprehensive collection of 56 titles in international law, international relations and security studies. This curated selection includes both timeless classics and pioneering new works, featuring esteemed titles from the renowned Melland Schill series, known for its signifi cant contributions to the field.
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Total collection | 56 |
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International law and international relations collection
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.
This chapter considers what amounts to an armed conflict since the law of armed conflict applies only in time of armed conflict. In an internal conflict, the control of territory by an armed group, the intensity of the fighting or the deployment of heavy weaponry may indicate a state of armed conflict. However, an accidental border incursion by a military aircraft caused by navigational error would not amount to armed conflict. The chapter discusses the great principles of customary law: military necessity, humanity, distinction and proportionality. The law of war is really an attempt to balance the conflicting principles of military necessity and humanity. Whether there existed a customary rule prohibiting indiscriminate attacks is a debatable question. Probably only blind attacks were prohibited under customary law since they would have violated the principle of distinction. Other, direct, attacks would have had to conform to the rule of proportionality.
The author's experience of teaching law of war to armed forces personnel from the UK and abroad reveals that, once they get to know the details, they are universally in favour. This chapter describes practice that can influence implementation and enforcement of the law of war as well as the legal mechanisms currently available. The law of war has always depended for its efficacy on the beneficial controlling influence of commanders. This is probably the most important factor of all in ensuring compliance. Perhaps not enough credit is given to reciprocity as a medium for ensuring respect for the law of war. War crimes are any serious breaches of the law of war. They may be tried by the national courts of the state of the offender or the courts of the capturing power, or of the state where the offence was committed.
One of the least appreciated influences of nationalism and self-determination has been in the area of the sources of international law. The crisis presented by the principle of self-determination has been and continues to be that international law does not recognise or accept as a matter of legal concern a necessary connection between a territory and the population which may inhabit it. International law is now assumed to be a complete system of law, one which affords a legal answer to whatever question is presented to it. International lawyers may be more familiar with this problematic in the context of the discussion as to whether international law consists solely of rules to which States expressly consented. In this case States would be free to do whatever they had not tied themselves not to do.
This introduction presents an overview of the key concepts discussed in the chapters of this book. The book presents a clear message that there is no effective international legal order to restrain the unilateralism of States. It provides the basic reasons that make unilateralism inevitable. States owe their existence to a matter of historical fact and do not have their state-hood conceded to them by a higher authority. The legality of the use of force has been covered mainly by international convention - the U.N. Charter - against a backdrop of customary law. It has already been argued that a basic feature of the contemporary conceptual framework of international law is that it has been created by a defunct tradition of doctrine. The postmodern (i.e. post-State) globalised society of intensely conflicting and mostly malevolent social forces express themselves in instantaneous electronic media, official, social and personal/individual.
This book bridges the gap between the legal theory propounded in academic works and the practical implementation of customary and treaty law as evidenced by military manuals, operational orders and instructions or in reports relating to incidents occurring in armed conflict. It illustrates conflicts, generally those in which British sailors, soldiers and airmen have been involved. The book highlights the more recent judgments and opinions of the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice and the European Court of Human Rights, the comprehensive work of the International Committee of the Red Cross with regard to customary international humanitarian law and the meaning of 'direct participation in hostilities', the Harvard University air and missile warfare project, the San Remo Manual on non-international armed conflicts, and the UK Law of Armed Conflict Manual of 2004. It discusses the protection of the wounded and sick, the security aspects of belligerent occupation and, because this is constantly raised as a weakness of the law of armed conflict, on the implementation and enforcement of this branch of the law. Concerns about recent events, such as publication of the 'Torture Papers', conditions at Abu Ghraib, the perceived 'legal hole' at Guantanamo Bay or the United Kingdom's Baha Mousa inquiry, caused the author to reflect on the utility of the law of armed conflict given the apparent willingness of some to exploit loopholes in the law or deploy ingenious approaches to its interpretation to the detriment of humanity.
Although the distinction between the effects of legal claims and political claims is so obviously of primary importance, it must be confessed that the distinction is an elusive one when applied to concrete cases. This chapter looks very briefly at some points where the political and legal approaches to a question of title come so very close together as to be distinguishable only with difficulty. It provides a brief reference to a notion not far removed from contiguity, which is sometimes made the basis of claims for a change of legal title and which may perhaps be called the principle of historical continuity. Another guiding principle for the determination of the proper destiny of territories is the principle of self-determination. This is not only a respectable tradition but is also sanctioned by Article 1 of the United Nations Charter. Finally, the chapter discusses the procedures for political decisions respecting territory.
Treaties had a certain diplomatic, moral or strategic significance which would be weighed alongside other diplomatic and political considerations. It was legal doctrine which gradually formulated the exclusively juridical perspective on treaties which finds expression in the 1969 Vienna Convention on the Law of Treaties. Custom is the first source of law but not only is most State practice secret, wherever legal arguments are made public they are so reserved and one-sided that these could not provide - and presumably could never have provided - a basis for legal development. Doctrine has to play a creative role rather like the judiciary in a municipal system of law. The problem is to find agreed ground-rules for the task. If one assumes that the legal system is complete (i.e. without lacunae), legal method should have the task of teasing out new answers to problems whether they are concrete or hypothetical.
This chapter looks more closely at one of those treaty prohibitions of the use of force, which appear to create the illusion of a law of State territory by offering an ineffectual guarantee of the status quo. The prohibition of intervention, firstly by doctrine and later by convention, is based on a pattern of domestic law analogy similar to that observed in the previous study on the law of treaties. Morgenthau traces both the international 'law' of treaties and the 'law' of non-intervention to the same general, liberal equation of relations between States to relations between individuals. A survey of legal doctrine, in particular the influence of Vattel, will give detailed juridical backing to Morgenthau's argument. The chapter concludes with a study of the limits of the unqualified commitment of international law to pluralism.