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International Law Studies

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Full-Text Articles in International Law

Indeterminacy In The Law Of Armed Conflict, Adil Ahmad Haque May 2019

Indeterminacy In The Law Of Armed Conflict, Adil Ahmad Haque

International Law Studies

Controversy and confusion pervade the law of armed conflict. Its most basic rules may seem ambiguous, vague, incomplete, or inconsistent. The prevailing view of customary international law confronts serious problems, in principle and in practice, when applied to the customary law of armed conflict. Legal indeterminacy, in its different forms, might be reduced or resolved in light of the object and purpose of the law of armed conflict, or by taking into account other relevant rules of international law. Unfortunately, the purpose of the law of armed conflict is itself the subject of deep disagreement. So is the relationship between …

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Beyond Geneva: Detainee Review Processes In Non-International Armed Conflict—A U.S. Perspective, Ryan J. Vogel Mar 2019

Beyond Geneva: Detainee Review Processes In Non-International Armed Conflict—A U.S. Perspective, Ryan J. Vogel

International Law Studies

The need for detainee review in non-international armed conflict has never been more imperative. Yet, the law of armed conflict is almost completely silent on the subject. Although the law may not require States to conduct detainee review processes in non-international armed conflict, the spirit of the law encourages it, and States—particularly the United States—have begun to see utility in the development and implementation of such review processes. The object of this article is to identify an appropriate framework for detainee review, examine relevant U.S. state practice, and provide practical guidelines for implementing processes to review the status and threat …

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Medical Care In Urban Conflict, Kenneth Watkin Feb 2019

Medical Care In Urban Conflict, Kenneth Watkin

International Law Studies

The potential for urban violence is increasing as the world population continues to migrate towards cities. Recent examples of urban warfare with insurgent groups has occurred in Damascus, Mosul, Raqqa, Marawi, Ramadi, and Fallujah, although non-State actor conflict covers a wide range of violence from ordinary crime, to terrorism and transnational crime, to near conventional conflict. Further, transnational terrorist groups have sought to extend the conflict into countries seen as the “far enemy.” A key issue is determining if an armed conflict is in existence so that the protective focus of international humanitarian law regarding the provision of medical care …

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Humanitarian Logic And The Law Of Siege: A Study Of The Oxford Guidance On Relief Actions, Sean Watts Jan 2019

Humanitarian Logic And The Law Of Siege: A Study Of The Oxford Guidance On Relief Actions, Sean Watts

International Law Studies

In terms of human suffering, few military operations have rivaled sieges and comparably harsh legal regimes have governed them. At a time when legal vindication of humanitarian interests in armed conflict is ascendant, conventional accounts of the law of war governing humanitarian relief may seem out of step, plagued with glaring gaps in humanitarian logic. In 2016, Oxford University professors published a United Nations-commissioned legal study—the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The Guidance contends that during armed conflict international law prohibits belligerents from arbitrarily denying offers of humanitarian relief …

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The Regime Of Innocent Passage In Disputed Waters, Hitoshi Nasu Nov 2018

The Regime Of Innocent Passage In Disputed Waters, Hitoshi Nasu

International Law Studies

The regime of innocent passage is a well-established body of customary international law. However, when there is a dispute over sovereign entitlement to a territorial sea or its outer limit, the applicability and legal effect of the regime are brought into question. This article considers the applicability of the regime of innocent passage and its legal effect in disputed waters by critically examining the relevant jurisprudence of international courts and tribunals that have dealt with territorial and maritime disputes. The efficacy of the findings from this analysis will then be evaluated from a legal policy perspective in the interest of …

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International Humanitarian Law And The Targeting Of Data, Tim Mccormack Nov 2018

International Humanitarian Law And The Targeting Of Data, Tim Mccormack

International Law Studies

The 2013 publication of the Tallinn Manual on the International Law Applicable to Cyber Warfare confirmed the view of the majority of the international group of experts that data was not an object and therefore not subject to the rules of targeting during an armed conflict. Intuitively, a number of scholars reacted negatively to this view, and instead were drawn to the Tallinn Manual minority position that data did constitute an object. The significance of data, particularly personal data, is only increasing, and the purpose of the law of armed conflict is to reduce the deleterious impact of armed conflict …

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Weapons Review Obligation Under Customary International Law, Natalia Jevglevskaja Sep 2018

Weapons Review Obligation Under Customary International Law, Natalia Jevglevskaja

International Law Studies

Under Article 36 of the 1977 Additional Protocol I to the Geneva Conventions, States are required to review new weapons for their compliance with international law. While recent discussions on the regulation of lethal autonomous weapons systems under the auspices of the UN Certain Conventional Weapons Convention increasingly emphasize the importance of national weapons review mechanisms, Article 36 is known to be implemented only by a handful of States. Some legal scholars have nonetheless argued that the Article 36 obligation has attained customary international law status. Remarkably, substantive analysis of State practice and opinio juris required to evidence that certain …

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Are Enhanced Warfighters Weapons, Means, Or Methods Of Warfare?, Rain Liivoja, Luke Chircop Aug 2018

Are Enhanced Warfighters Weapons, Means, Or Methods Of Warfare?, Rain Liivoja, Luke Chircop

International Law Studies

Advances in science and technology have made it possible to improve the physical and cognitive capabilities of warfighters by biomedical interventions, such as the administration of drugs, the implantation of devices, and the magnetic stimulation of the brain. These advances raise the question as to whether enhanced warfighters ought to be considered weapons, means of warfare, or methods of warfare, for the purposes of the law of armed conflict. An affirmative answer to this question would make human enhancement subject to various restrictions arising from the law of armed conflict as well as arms control law. This article disagrees with …

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The Updated Icrc Commentary On The Second Geneva Convention: Demystifying The Law Of Armed Conflict At Sea, Bruno Demeyere, Jean-Marie Henckaerts, Heleen Hiemstra, Ellen Nohle Aug 2018

The Updated Icrc Commentary On The Second Geneva Convention: Demystifying The Law Of Armed Conflict At Sea, Bruno Demeyere, Jean-Marie Henckaerts, Heleen Hiemstra, Ellen Nohle

International Law Studies

Since their publication in the 1950s and 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of those treaties. The International Committee of the Red Cross, together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations of the treaty texts. Following a brief overview of the methodology and process of the update as well as a historical background to the Second Geneva Convention, this article addresses the scope of applicability of the …

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Belligerent Obligations Under Article 18(1) Of The Second Geneva Convention: The Impact Of Sovereign Immunity, Booty Of War, And The Obligation To Respect And Protect War Graves, Wolff Heintschel Von Heinegg Aug 2018

Belligerent Obligations Under Article 18(1) Of The Second Geneva Convention: The Impact Of Sovereign Immunity, Booty Of War, And The Obligation To Respect And Protect War Graves, Wolff Heintschel Von Heinegg

International Law Studies

Article 18(1) of the Second Geneva Convention requires parties to an international armed conflict, “after each engagement” and “without delay,” to “take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.” This article focuses on the latter obligation: the duty to search for and collect the dead. It assesses this obligation in light of the International Committee of the Red Cross 2017 Commentary on the Second Geneva Convention, the first such commentary completed by …

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Duty To Render Assistance To Mariners In Distress During Armed Conflict At Sea: A U.S. Perspective, Raul (Pete) Pedrozo Jun 2018

Duty To Render Assistance To Mariners In Distress During Armed Conflict At Sea: A U.S. Perspective, Raul (Pete) Pedrozo

International Law Studies

In 2017, the International Committee of the Red Cross published an updated Commentary on the Second Geneva Convention. One question left unanswered by the new Commentary is the relationship between international humanitarian law and other international treaties applicable to the maritime domain, such as the U.N. Convention on the Law of the Sea (UNCLOS) and treaties adopted by the International Maritime Organization (IMO). The Second Geneva Convention establishes a legal framework for the humane treatment and protection of victims of armed conflict at sea—the wounded, sick and shipwrecked. There are circumstances, however, in which the belligerents do not have the …

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The International Legal Implications Of Military Space Operations: Examining The Interplay Between International Humanitarian Law And The Outer Space Legal Regime, Dale Stephens May 2018

The International Legal Implications Of Military Space Operations: Examining The Interplay Between International Humanitarian Law And The Outer Space Legal Regime, Dale Stephens

International Law Studies

In the contemporary period, many military forces rely heavily on space-based assets to conduct operations across a wide spectrum of contexts. Such reliance necessarily exposes a correlative vulnerability that such assets may be degraded or destroyed, especially in a time of armed conflict. However, the legal framework that governs military action in space during a time of armed conflict is not well explored. This article examines the interaction between International Humanitarian Law (IHL) and the Outer Space legal regime. Harmonization of legal regimes is a goal of any reconciliation project, although such harmonization may not always be readily possible. In …

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Armed Conflict-Related Detention Of Particularly Vulnerable Persons: Challenges And Possibilities, Sandesh Sivakumaran May 2018

Armed Conflict-Related Detention Of Particularly Vulnerable Persons: Challenges And Possibilities, Sandesh Sivakumaran

International Law Studies

Persons detained for reasons related to an armed conflict are in a vulnerable position. Deprived of their liberty, they are at the mercy of their captors. Certain groups of detainees are particularly vulnerable. Additionally, the way in which non-international armed conflicts are fought can make it difficult for some parties to the conflict to comply with the rules benefiting particularly vulnerable detainees. This Article identifies groups of particularly vulnerable detainees and analyzes the general and special protections that are afforded to them under the conventional and customary international law of armed conflict. It then considers the realities of detention in …

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Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák Feb 2018

Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák

International Law Studies

There are no molecules of air that could carry sound waves in the vacuum of outer space. Accordingly, space warfare may well become the first type of war whose signature sound would be—silence. But does the law of armed conflict (jus in bello) fall silent in times of Silent War? This article addresses the uncertainty at the heart of this issue. First, it delineates the relevant conceptual framework by examining the factual notion of “military space operations,” and its relationship with the legal concept of “armed conflict,” as well as the overlap between the potentially applicable bodies of …

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Neutrality And Outer Space, Wolff Heintschel Von Heinegg Dec 2017

Neutrality And Outer Space, Wolff Heintschel Von Heinegg

International Law Studies

This article discusses the law of neutrality as it pertains to belligerent operations in and through outer space as well as belligerent outer space operations involving the territory and national airspace of neutral States. As far as the latter is concerned, the traditional law of neutrality is fully applicable. Accordingly, international law prohibits belligerents from launching space objects from neutral territory or through neutral national airspace. While neutral States may not provide belligerents with outer space assets or the use of communications infrastructure located in their territories, they are not obliged to prevent their nationals from providing any of the …

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Individual, Not Collective: Justifying The Resort To Force Against Members Of Non-State Armed Groups, Anthony Dworkin Nov 2017

Individual, Not Collective: Justifying The Resort To Force Against Members Of Non-State Armed Groups, Anthony Dworkin

International Law Studies

This article proposes an alternative to the conventional way of deciding when a State may target or detain members of an armed group. Instead of asking whether there is an armed conflict between the State and the group, this article argues that we should look at the State’s justification for the use of force against the group or its members. In a non-international context, this justification is rooted in human rights law. For this reason, the authorization for the resort to force operates on an individual basis, and the State is only justified in using force against individual members of …

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Intelligence Gathering In The Exclusive Economic Zone, Efthymios Papastavridis Nov 2017

Intelligence Gathering In The Exclusive Economic Zone, Efthymios Papastavridis

International Law Studies

The article explores the contours of intelligence gathering in the Exclusive Economic Zone (EEZ) under the international law of the sea. Intelligence gathering in the maritime domain is significant for military and law enforcement purposes and for both coastal States and other States. Intelligence gathering attains even more prominence in the EEZ due to the sensitive location and importance of resources to the coastal State, while the sui generis legal nature of this zone adds further complexity to this inquiry. Indeed, the law of the sea, as reflected in the Law of the Sea Convention, neither explicitly prohibits nor permits …

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The Law Of The Sea Convention And Sea Level Rise After The South China Sea Arbitration, Stuart Kaye Oct 2017

The Law Of The Sea Convention And Sea Level Rise After The South China Sea Arbitration, Stuart Kaye

International Law Studies

Sea level rise from anthropogenic climate change is an increasing concern for the international community and especially for coastal States. The prospect of whole islands disappearing under rising waters raises serious questions as to the impact upon maritime jurisdiction and the ability of the United Nations Convention on the Law of the Sea to deal with the inundation of large areas of territory. The South China Sea Arbitration Tribunal recently considered these questions. Here, the Tribunal relied on a high standard for what constituted human habitability under Article 121 of the Law of the Sea Convention, which likely will have …

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Autonomous Weapons And Weapon Reviews: The Uk Second International Weapon Review Forum, James Farrant, Christopher M. Ford Aug 2017

Autonomous Weapons And Weapon Reviews: The Uk Second International Weapon Review Forum, James Farrant, Christopher M. Ford

International Law Studies

This article considers how military lawyers completing weapon reviews might approach their legal duties if confronted with a weapon system that incorporates autonomous technology or artificial intelligence. The article begins by reviewing current and likely near future technological capabilities before considering whether existing international humanitarian law can adequately regulate these technologies. While noting the widespread lack of compliance with Article 36 of Additional Protocol I, the article argues that, properly applied, Article 36 is an effective gatekeeper for keeping unlawful weapon systems from the battlefield. After assessing the feasibility of a preemptive ban on autonomous weapons based on “meaningful human …

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The Conduct Of Hostilities And International Humanitarian Law: Challenges Of 21st Century Warfare, International Law Association Study Group On The Conduct Of Hostilities In The 21st Century Aug 2017

The Conduct Of Hostilities And International Humanitarian Law: Challenges Of 21st Century Warfare, International Law Association Study Group On The Conduct Of Hostilities In The 21st Century

International Law Studies

The International Law Association Study Group on the Conduct of Hostilities in the 21st Century was established in 2011 and held its first meeting in 2012. The Study Group has explored numerous issues arising from the relationship between international humanitarian law (IHL) and international human rights law in the conduct of military operations, technological challenges posed by new weapons systems, and the basic principles of IHL in the conduct of hostilities. In 2015, the Study Group established three working groups focusing on core issues within IHL in relation to the conduct of hostilities in modern warfare. These working group topics …

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Maritime Law Enforcement Operations And Intelligence In An Age Of Maritime Security, Douglas Guilfoyle Jul 2017

Maritime Law Enforcement Operations And Intelligence In An Age Of Maritime Security, Douglas Guilfoyle

International Law Studies

This article examines maritime law enforcement operations and intelligence activities in the context of maritime security. First describing the role of navies and coast guards in maritime security, this article then explores the relationship between law enforcement operations and actionable intelligence. In particular, it focuses on maritime domain awareness (MDA), and how MDA functions as a form of intelligence. Next, the article discusses maritime domain awareness under international law before looking to the tension between intelligence collection and visit, board, search and seizure (VBSS) operations, both on the high seas and in waters under national jurisdiction. The article closes by …

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The Future Of U.S. Detention Under International Law: Workshop Report, International Committee Of The Red Cross (Icrc), Harvard Law School Program On International Law And Armed Conflict (Hls Pilac), Stockton Center For The Study Of International Law (U.S. Naval War College) Jun 2017

The Future Of U.S. Detention Under International Law: Workshop Report, International Committee Of The Red Cross (Icrc), Harvard Law School Program On International Law And Armed Conflict (Hls Pilac), Stockton Center For The Study Of International Law (U.S. Naval War College)

International Law Studies

The International Committee of the Red Cross Regional Delegation for the United States and Canada, the Harvard Law School Program on International Law and Armed Conflict, and the Stockton Center for the Study of International Law at the U.S. Naval War College recently hosted a workshop titled Global Battlefields: The Future of U.S. Detention under International Law. The workshop was designed to facilitate discussion on international law issues pertaining to U.S. detention practices and policies in armed conflict. Workshop participants included members of government, legal experts, practitioners and scholars from a variety of countries. This report attempts to capture the …

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Navigational Freedom: The Most Critical Common Heritage, John Norton Moore Jun 2017

Navigational Freedom: The Most Critical Common Heritage, John Norton Moore

International Law Studies

This keynote address was delivered at the Freedom of Navigation and the Law of the Sea workshop hosted by the Stockton Center for the Study of International Law at the U.S. Naval War College on May 17, 2017.

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Freedom Of Navigation: Development Of The Law Of The Sea And Emerging Challenges, Vladimir Golitsyn Jun 2017

Freedom Of Navigation: Development Of The Law Of The Sea And Emerging Challenges, Vladimir Golitsyn

International Law Studies

This keynote address was delivered at the Freedom of Navigation and the Law of the Sea workshop hosted by the Stockton Center for the Study of International Law at the U.S. Naval War College on May 18, 2017.

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Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups, Noam Lubell May 2017

Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups, Noam Lubell

International Law Studies

Recent years have seen the emergence of significant legal debate surrounding the use of force against armed groups located in other States. With time, it has become clear that in many cases such operations are not confined to the territory of one other State, but expand to encompass multiple territories and often more than one armed group. This article examines multi-territorial conflicts with armed groups through the lens of several legal frameworks. Among other topics, it analyses the questions surrounding the extension of self-defense into multiple territories, the classification of the hostilities with the group and between involved States, the …

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Space Weapons And The Law, Bill Boothby May 2017

Space Weapons And The Law, Bill Boothby

International Law Studies

Outer space is of vital importance for numerous civilian and military functions in the modern world. The idea of a space weapon involves something used, intended or designed for employment in, to or from outer space to cause injury or damage to the enemy during an armed conflict. Non-injurious, non-damaging space activities that adversely affect enemy military operations or capacity, though not involving the use of weapons, will nevertheless be methods of warfare. Article III of the Outer Space Treaty makes it clear that international law, including weapons law, applies in outer space. Accordingly, the superfluous injury/unnecessary suffering and indiscriminate …

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The Updated Commentary On The First Geneva Convention – A New Tool For Generating Respect For International Humanitarian Law, Lindsey Cameron, Bruno Demeyere, Jean-Marie Henckaerts, Eve La Haye, Heike Niebergall-Lackner Mar 2017

The Updated Commentary On The First Geneva Convention – A New Tool For Generating Respect For International Humanitarian Law, Lindsey Cameron, Bruno Demeyere, Jean-Marie Henckaerts, Eve La Haye, Heike Niebergall-Lackner

International Law Studies

Since their publication in the 1950s and the 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of these treaties. The International Committee of the Red Cross (ICRC), together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations. The work on the first updated Commentary, the Commentary on the First Geneva Convention relating to the protection of the wounded and sick in the armed forces, has already been finalized. This article provides …

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Combat Losses Of Nuclear-Powered Warships: Contamination, Collateral Damage And The Law, Akira Mayama Mar 2017

Combat Losses Of Nuclear-Powered Warships: Contamination, Collateral Damage And The Law, Akira Mayama

International Law Studies

There have been non-combat losses of nuclear-powered warships during sea trials and peacetime patrol missions. Nuclear contamination is spreading from some of these sinking sites. It is also conceivable that combat losses of nuclear-powered warships could cause contamination of civilians, civilian objects and the natural environment. If such combat losses occur at sea, both belligerent and neutral States will have to deal with a difficult question: to what extent and by who can harm resulting from such contamination be compensated for payment of damages. This article examines legal issues stemming from prospective combat losses of nuclear-powered warships from the perspectives …

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A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany Mar 2017

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

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The Limits Of Inviolability: The Parameters For Protection Of United Nations Facilities During Armed Conflict, Laurie R. Blank Mar 2017

The Limits Of Inviolability: The Parameters For Protection Of United Nations Facilities During Armed Conflict, Laurie R. Blank

International Law Studies

This article examines the international legal protections for United Nations humanitarian assistance and other civilian facilities during armed conflict, including under general international law, setting forth the immunities of the United Nations, and the law of armed conflict (LOAC), the relevant legal framework during wartime. Recent conflicts highlight three primary issues: (1) collateral damage to UN facilities as a consequence of strikes on military objectives nearby and military operations in the immediate vicinity; (2) the misuse of UN facilities for military purposes; and (3) direct attacks on fighters, weapons or other equipment that cause damage to such facilities. To identify …

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