File Name: elements of international law and laws of war .zip
Many countries seek to regain lost cultural property that was taken as spoils of war during the nineteenth and early twentieth centuries.
Rules of international humanitarian law IHL attempt in broad terms to regulate conflict in order to minimise human suffering. IHL reflects this constant balance between the military necessity arising in a state of war and the needs for humanitarian protection.
The Laws of War in Outer Space
Many countries seek to regain lost cultural property that was taken as spoils of war during the nineteenth and early twentieth centuries. Some scholars, however, regard such claims as baseless in public international law of this period.
This article carries out an intertemporal law analysis and argues that the rule against such plunder was indeed founded in the laws and customs of war in the eighteenth century, became well established in the nineteenth century, and further developed in the twentieth century. If the plundered works exist and are identifiable, restitution is the only remedy for violation of this rule.
This article aims to provide the legal grounds for restitution claims and thus provide the first steps for victim States to regain their lost cultural property. This article evaluates the legality of taking cultural property 1 as spoils of war that occurred during the nineteenth and early twentieth centuries.
It aims to apply the results of analysis to support the claims for restitution of displaced cultural properties to their countries of origin, which is one of the most controversial issues in international law today.
Many countries have suffered the loss of cultural property due to plunder in war during this period, such as China, Egypt, Greece, Iraq, Italy, Nigeria, and Turkey. However, it is very challenging for victim States to provide convincing legal arguments to support restitution, 4 especially when the looting occurred in the nineteenth century. No conventional law referred to the protection of cultural property during war before The Hague Convention II of Some scholars support claims for restitution using human rights law instead; they argue the importance of possessing cultural property to preserve the identity of peoples and communities within the framework of international human rights law.
This article is divided into eight parts beginning with the introduction. Part II explores different criteria for identifying customary international law in different periods of time from the mid-seventeenth through twentieth centuries. Part III analyses the influence of Roman legal traditions and philosophical ideas on the emergence of the rule against plunder in later centuries.
Part IV explores the establishment of the rule against plunder upon natural jurisprudence in the eighteenth century. Part V examines the validity of the rule against plunder within the context of a fundamental change in the philosophy of international law in the nineteenth century in two episodes. The second was the codification of the laws and customs of war in the second half of the nineteenth century. Part VI examines the development of the rule against plunder in the twentieth century, with a focus on the two World Wars and the further codification of the rule in the Hague Convention and its first protocol.
Part VII discusses claims in favour of retention and provides a brief analysis of the significance of the primary argument of this article in transforming the current debates between restitution and retention. The current orthodox theory of customary international law is founded upon State practice as the material element, and opinio juris or, alternatively, acceptance as law as the subjective element.
Did customary international law require a subjective element before the opinio juris was introduced into the legal science of international law? Did the material element require a general practice as is the case today? This section employs the intertemporal law approach to explore different criteria for identifying customary international law in different periods of time from the mid-seventeenth through twentieth centuries.
These jurists articulated and codified the legal rules that governed the interactions of sovereign nation-States. As an essential source of the law of nations during this period, it is vital to know whether customary international law required the subjective element to be legally binding.
Raphael M. Walden concludes that tacit consent was the subjective element of custom, according to the writings of classical international law jurists.
Usages constituted the main body of the law of nations before the early twentieth century. It seems that usage did not require State consent or opinio juris , as we assume today, to be legally binding.
Natural law theory was the dominant philosophy underlying international law at that time. John Austin introduced positivist theory into the legal science of international law, which looks to the practice of States, rather than to priori deductions, to formulate international law.
As David Kennedy argues, jurists stepped gradually away from the law of nature and increasingly emphasized the role of custom and State practice in their understanding of the rules of international law. Keyn The Franconia case of , Lord Chief Justice Cockburn argued that the law must have received the assent of the nations that may be expressed by treaty or implied from established usage. Supreme Court held that the court must resort to the custom and usage of civilized nations to determine questions involving international law, if there was no treaty and no controlling executive or legislative act or judicial decision on point.
The law of nature should not be neglected in identifying customary international law, even though the dominance of natural law theory declined with the rise of positivism during the nineteenth century.
The law of nature and State consent closely interacted with each other; it was therefore difficult to make a clear distinction between them as the basis for customary international law. The historical school of law eventually developed a critique of natural law theory and introduced opinio juris sive necessitatis into international law during the first half of the nineteenth century. Francis Lieber drafted the code on the laws and customs of war for the U.
International law in the nineteenth century was therefore still influenced by natural law. This period also witnessed the rise of positivism that examined the common wills of sovereigns, and began to give greater weight to the opinion of States in identifying customary international law. In this regard, whether the rule that was established in earlier centuries remained valid in the nineteenth century depended on an overall examination in the dynamic context from the perspective of the law of nature, State consent, and the opinions of States.
These three theories, though in tension with one another in legal philosophy, all played a significant role in developing customary international law during this period, but with different degrees of significance.
The law of nature played a more dominant role at the beginning of the nineteenth century, while State consent held the more influential position toward the end of that century. Positivism was thoroughly rooted in the science of international law during the twentieth century. Due to the dynamic nature of customary international law, subsequent practice that is inconsistent with the established rule might modify or abandon it.
Villiger, it requires the examination of the general opinio juris with respect to inconsistent State practices. USA case, the ICJ deemed it sufficient to deduce the existence of customary rules, if subsequent practices inconsistent with a given rule should have generally been regarded as breaches of that rule.
In conclusion, usage constituted the main body of the law of nations from the seventeenth through nineteenth centuries. Usage was required to be long established and uniformly acted upon. The law of nature functioned as an invisible subjective element to validate usage in the seventeenth and eighteenth centuries.
Consent, the law of nature, and opinions of States closely interacted with one another and carried out this function in the nineteenth century, but with different degrees of significance. Opinio juris , or alternatively the acceptance of the general practice as law, have functioned as the subjective element since the twentieth century. Today, the writings of recognized publicists serve as a subsidiary means for identifying international law.
During the seventeenth and eighteenth centuries, the writings of classical international law jurists were considered the highest source of authority upon matters regarding the law of nations. Treaties and other international agreements may merely formalize the established rules of customary international law. Wilson and George F.
Tucker, these sources could reflect the opinion of States regarding the matters of which they speak, 66 which would help identify the rules of customary international law. As this article shows, during the second half of the nineteenth century, when sovereigns began to codify the laws and customs of war, many provisions in these codes reflected the established rules of customary international law in warfare. The history of transactions regarding the intercourse of States was always a compelling source reflecting the law of nations.
Decisions of prize or admiralty courts were a reliable source of the law of nations in the eighteenth and nineteenth centuries. Public conscience had a growing influence on shaping the law of nations starting at the beginning of the nineteenth century. The original idea, which regarded cultural property as a special category of property and insisted that it could not be taken, appeared early in the Roman era, and was developed for centuries before it became a legal norm within customary international law.
This part evaluates how Roman legal traditions and philosophical ideas set the stage for the emergence of the legal norm against plundering cultural property. Roman law has had a significant impact on the development of modern international law starting in the sixteenth century. According to James L. Brierly, the founders of international law based the rules of the law of nations upon Roman law, and European sovereign State-nations gave great respect to the principles of Roman law in the sixteenth century.
Roman law had made a primary distinction between sacred property and other property. The Justinian Code of the Byzantine Empire adopted this classification of property in the sixth century. Therefore, classifying sacred objects as a particular category of property and sparing them from human interference prepared the ground for categorizing cultural property and excluding it from spoils of war.
The Roman customs of war also reflected legal thinking that regarded sacred property as a special category of property and considered it as an exception to the right of conquest. Greek and Roman historians illustrated that many great commanders at that time were conscious that they ought not to plunder or destroy the sanctuaries.
First, canon law protected churches, tombs, and their property from being stolen or looted. Beginning in the sixteenth century, many classical international law jurists codified this custom of war in their treatises regarding the law of nations; they deemed the looting of sacred property as not merely unjust but beyond all limits of a humane society.
The Roman Empire was committed to conducting the systematic and organized looting of art. He distinguished works of art from other types of spolia and argued for excluding this type of property from spoils of war, since taking it would not necessarily weaken the enemy. The Roman jurist Cicero discussed the fate of works of art during his prosecution of Governor Verres on the grounds that he abused his authority by plundering artistic treasures in 70 BCE. Miles explains: 1 why do we value Roman artefacts?
Cicero appreciated works of art as culturally valuable, rather than for its economic or religious value. What made sovereigns stop the looting of art, which had occurred for millennia, and instead refrain from this practice? There are three key questions to ask when considering this shift of practice. First, may the abstentions of sovereigns result from lack of interest?
As we know, sovereigns had eagerly looted artistic treasures in war because they were interested either in economic profits or seizing them as emblems of national glory.
Cultural property was still economically or politically significant during the mid-seventeenth and eighteenth centuries. In this regard, refraining to loot works of art was not likely to result from lack of interest among sovereigns.
Second, may the abstentions result from lack of capacity? Logically speaking, how could a party lack the capacity to loot his enemy, if they could engage in a war? Even if some sovereigns at the time of war were too weak to loot, that was not the general cause for all sovereigns who refrained from looting artefacts.
In this sense, why would sovereigns stop exercising the right to plunder artistic treasures when they had considerable interests in and the ability to do so?
Furthermore, why would they stop looting when they could rely upon the traditional right of conquest and the customs that permitted such practice for centuries? This goes to the third question—may the abstentions result from lack of legal ground? As the current section argues, the abstentions resulted from a change in the perception of justice and reasonableness that restricted the right of conquest.
Due to the influence of the ideologies of the Enlightenment, many classical international law jurists sought to use reason to limit the damage of warfare and place restrictions on the right of conquest. Grotius emphasized that it was not necessary to use force upon things of no danger to an army in a war, but which honoured human society, such as temples and sacred properties. As he stated,. What advantage is obtained by destroying them?
The arguments of Grotius and de Vattel have thus provided the juridical basis for excluding cultural property from spoils of war on the grounds of military necessity. In this regard, the looting of cultural property could not be justified by military necessity; because looting of cultural artefacts was not necessary for sovereigns to engage in or sustain a war.
The principle of military necessity later became an essential principle of the law of war, which provided a foundation for the rule of protection of cultural property in war in the nineteenth century. For example, the Polish jurist Jakub Przyluski had expressed a principle forbidding the plundering of works of art in the sixteenth century.
Basic principles of IHL
Handbook of Space Security pp Cite as. It is not an esoteric and separate paradigm. Indeed, the main United Nations Space Treaty, the Outer Space Treaty, expressly confirms that the principles of international law apply to the use and exploration of outer space. Not only does this give rise to difficult international law issues relating to the use of force, but it also requires an understanding of how and to what extent the international law principles of jus in bello — international humanitarian law — apply to the conduct of these outer space activities. This chapter examines a number of specific aspects of the jus in bello principles as they relate to the use of outer space, as well as more recent initiatives aimed at attempting to provide further clarity to the applicable rules.
International humanitarian law IHL , also known as the laws of war or the law of armed conflict, is the legal framework applicable to situations of armed conflict and occupation. As a set of rules and principles it aims, for humanitarian reasons, to limit the effects of armed conflict. IHL is a part of public international law. Public international law is a broad set of treaties, customary law, principles and norms. The framework traditionally regulated relationships only between States. It has evolved, however, to cover a broad range of actors.
War Department Field Manual , Rules of Land Warfare (Oct. 1, ). NEUTRALITY AT SEA (U.S. Naval War College International Law Studies, elements generally would not be viewed as taking a direct part in.
How to publish with Brill. Fonts, Scripts and Unicode. Brill MyBook. Ordering from Brill.
The law of war is the component of international law that regulates the conditions for war jus ad bellum and the conduct of warring parties jus in bello. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of international law.
Law of war
International law , also called public international law or law of nations , the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. The term was coined by the English philosopher Jeremy Bentham — It is a mark of how far international law has evolved that this original definition omits individuals and international organizations —two of the most dynamic and vital elements of modern international law.
Problems of definition of statehood and of its application thus occupy an important place in the structure of international law. The disputes on this topic tend to be focused on factual issues rather than on the relevant legal criteria. The question of the criteria is a mixed fact and law question though. To create a state entities must fulfil certain criteria of statehood. There are different opinions on the essential criteria, which will be examined critically hereafter.
Just war , notion that the resort to armed force jus ad bellum is justified under certain conditions; also, the notion that the use of such force jus in bello should be limited in certain ways. The canonists drew together existing Christian traditions on the justification of war and on noncombatant immunity, ideas later developed by various Christian theologians; and the chivalric code contributed further to the idea of noncombatant immunity and also added restraints on the means of war. Rationales for war based on Christian ethics can be found in the writings of theologians, such as St. Augustine — and St. Secular theorists include the Roman jurist and philosopher Marcus Tullius Cicero —43 bc , who argued that legitimate wars must be openly declared, have a just cause, and be conducted justly. The Dutch jurist Hugo Grotius — maintained in De Jure Belli ac Pacis ; On the Law of War and Peace that war is justifiable only if a country faces imminent danger and the use of force is both necessary and proportionate to the threat.
Conventions, humanitarian law, internal conflict, International Committee of the Red. Cross article will attempt to give a general overview of the rules, developments, and future directions of As a result, those elements of the jus in bello that.
How to publish with Brill. Fonts, Scripts and Unicode. Brill MyBook. Ordering from Brill. Author Newsletter. How to Manage your Online Holdings.
А потом они со Сьюзан будут лежать в кровати с балдахином в Стоун-Мэнор и наверстывать упущенное время. Девушка наконец нашла то, что искала, - газовый баллончик для самозащиты, экологически чистый аналог газа мейс, сделанный из острейшего кайенского перца и чили. Одним быстрым движением она выпрямилась, выпустила струю прямо в лицо Беккеру, после чего схватила сумку и побежала к двери. Когда она оглянулась, Дэвид Беккер лежал на полу, прижимая ладони к лицу и корчась от нестерпимого жжения в глазах. ГЛАВА 71 Токуген Нуматака закурил уже четвертую сигару и принялся мерить шагами кабинет, потом схватил телефонную трубку и позвонил на коммутатор. - Есть какие-нибудь сведения о номере? - выпалил он, прежде чем телефонистка успела сказать алло.
- На это уйдет полчаса. К тому времени все уже рухнет. Джабба открыл рот, готовый что-то сказать, но тут его буквально парализовал душераздирающий крик. Все повернули головы к Сьюзан Флетчер, которая выпрямилась и поднялась со стула. Лицо ее побелело, глаза не отрываясь смотрели на застывший кадр, демонстрировавший неподвижное тело Дэвида Беккера, залитое кровью, брошенное на пол мини-автобуса. - Вы его убили! - крикнула .
Вначале он хотел выстрелить Беккеру в голову, но, будучи профессионалом, решил не рисковать.
Странное? - Он начал беспокоиться. - Можешь выражаться яснее. Две минуты спустя Джабба мчался вниз к главному банку данных.
Что-то попало в процессор, создав заколдованный круг, и практически парализовало систему. - Знаешь, - сказала она, - Стратмор сидит в шифровалке уже тридцать шесть часов. Может быть, он сражается с вирусом. Джабба захохотал. - Сидит тридцать шесть часов подряд.
На этот раз ему очень вежливо ответили по-немецки, но снова сказали, что рыжих девочек у них. - Keine Rotkopfe, простите. - Женщина положила трубку. Вторая попытка также ни к чему не привела. Беккер заглянул в телефонный справочник.
С каждой минутой, уходящей на эти бесплодные попытки, ее цена растет.
Искусственное дыхание делали санитары. - Понятия не имею. Я уже говорила, что мы ушли до их прибытия. - Вы хотите сказать - после того как стащили кольцо.
Первая попытка закончилась неудачей. Нахмурившись, Беккер набрал второй номер. И на другом конце сразу же сняли трубку. - Buenas noches, Mujeres Espana. Чем могу служить.
Но когда шестерни разомкнулись, чтобы включилась другая их пара, автобус слегка притормозил, и Беккер прыгнул. Шестерни сцепились, и как раз в этот момент его пальцы схватились за дверную ручку. Руку чуть не вырвало из плечевого сустава, когда двигатель набрал полную мощность, буквально вбросив его на ступеньки. Беккер грохнулся на пол возле двери. Мостовая стремительно убегала назад в нескольких дюймах внизу.
Задняя стенка ангара бесследно исчезла прямо перед. Такси все еще двигалось рядом, тоже въехав на газон. Огромный лист гофрированного металла слетел с капота автомобиля и пролетел прямо у него над головой.