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Giegerich, T. (Ed.) (2009). A Wiser Century?. Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference. Duncker & Humblot. https://doi.org/10.3790/978-3-428-53040-3
and Giegerich, Thomas. A Wiser Century?: Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference. Duncker & Humblot, 2009. Book. https://doi.org/10.3790/978-3-428-53040-3
Giegerich, T (ed.) (2009): A Wiser Century?: Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-53040-3

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A Wiser Century?

Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference

Editors: Giegerich, Thomas

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel, Vol. 173

(2009)

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Abstract

The Hague Peace Conferences of 1899 and 1907 dealt with three interlinked topics: the peaceful settlement of disputes, including by arbitration; the restriction of armaments and military budgets; the laws of war. The first two were aimed at preventing the outbreak of war, not by restricting the jus ad bellum in its substance, but by inducing states not to use their continuing war power and to limit the growth of their war machinery. The third topic was concerned with containing the brutality of war where its prevention had failed. Whereas the Conferences succeeded in codifying the laws of war, they made less progress with regard to the peaceful settlement of disputes and failed on limiting armaments. Worst of all, they could not prevent the outbreak of World War I.

This volume uses the occasion of the 100th anniversary of the Second Hague Peace Conference to follow up on the then concerns and objectives, looking at the Hague legacy through the lens of today's problems. The 27 contributions treat the most pressing recent issues of non-proliferation and disarmament, international humanitarian law and judicial dispute settlement. Three questions run like a thread through this volume: 1. In which areas have the promises of 1899 and 1907 remained unfulfilled and why? 2. In which areas has there been progress, in which other areas perhaps regression? 3. What are our prospects and how can we international lawyers help shaping a promising future in respect of the prevention and containment of war?

Whereas the "empire of law" in international relations and the age of international justice, which were envisaged in the Convention for the Pacific Settlement of International Disputes of 1899/1907, have not yet arrived on the global level, we Europeans have made considerable progress since 1945. But in the age of globalization, Europe cannot for long remain an Isle of the Blest. Together with the other peoples of the United Nations we must therefore strive toward fulfilling the promises of the UN Charter and the Universal Declaration of Human Rights - peace, justice, freedom and prosperity for everyone and all nations large and small. Only then can wars be prevented.

Table of Contents

Section Title Page Action Price
Preface 5
Contents 7
Thomas Giegerich: Prevention and Containment of War – Two Fateful Missions Unaccomplished 11
A. Desperately Yearning for Peace – and Yet Incessantly Waging War 11
B. The Hague Peace Conferences and their Impacton International Law 13
C. The First Pillar of the Hague Legacy: Non-Proliferation and Disarmament 15
I. Non-Proliferation of Weapons of Mass-Destruction and Nuclear Disarmament 16
II. Conventional Disarmament and Arms Trade 19
D. The Second Pillar of the Hague Legacy: Codifying, Developing and Enforcing International Humanitarian Law 22
I. Excursion into the Jus ad Bellum and Jus post Bellum 23
II. Outsourcing War – The Resurgence of Private Military Contractors 25
III. Avoiding Legal “Black Holes” – Bringing in International Human Rights Law and International Criminal Law 28
1. Preserving the “Empire of Law” 28
2. Combatting Impunity – Then and Now 33
IV. Belligerent Occupation and International Territorial Administration 34
V. The International Committee of the Red Cross: Humanizing Armed Conflicts through Law and Silent Diplomacy 37
E. The Third Pillar of the Hague Legacy: Judicial Settlement of International Disputes 38
I. The Gradual Development of a StillImperfect International Judiciary 38
II. The Advancement of the World Court and the Role of Germany in It 40
III. Judicial Dispute Settlement – the Perspective of the European Union 44
F. Has International Law Civilized Conflicts since 1907? 46
G. World Peace through International Law 47
Jost Delbrück: Walther Schücking’s Contribution to the International Rule of Law 53
A. Biographical Data: Walther Schücking’s Careeras Scholar and Pacifist Politician 53
B. The Legacy of Walther Schücking: An International Legal Community and the Rule of Law 55
Stephen C. Neff: The Hague Peace Conferences and a Century of Further Struggles 59
A. Militarization and Armaments 60
I. The Fate of the Hague Conference Declarations 61
II. Prohibiting Certain Weapons 64
III. Arms Reduction 66
IV. Restricting the Resort to Armed Force 67
V. An Overall Assessment 68
B. The Laws of Armed Conflict 71
I. War on Land 72
II. War at Sea 73
III. Neutrality 74
IV. An Overall Assessment 75
C. The Peaceful Settlement of Disputes 76
An Overall Assessment 84
D. Some Final Thoughts 85
Ian Anthony: Weapons of Mass Destruction: Reduction of Stockpiles and Non-Proliferation 89
A. Current Status of Reductions of Stockpiles 91
B. Pushing Ahead on the Global Nuclear Disarmament Agenda 98
C. Preventing the Spread of Nuclear, Biological and Chemical Weapons 100
D. The Role of Law in Eliminating Nuclear, Biological and Chemical Weapons 104
Heike Krieger: Disarmament Obligations of and Assurances of Non-Use by Nuclear Weapon States 107
A. Introduction: From Deterrence to Preemption? 107
B. Article VI of the Non-Proliferation Treaty 108
C. Disarmament Efforts 109
D. Consequences of the Failure to Disarm 111
I. Negative Security Assurances 111
1. Legally Binding Character? 112
2. Negative Security Assurances and Preemption 114
II. Effects on the Validity of the Non-Proliferation Treaty? 115
1. Termination for Breach or clausula rebus sic stantibus? 115
2. Failure to Disarm as a Material Breach? 117
E. Revival of Disarmament 119
Christian Schaller: Keeping Weapons of Mass Destruction from Terrorists – An International Law Perspective 121
A. Assessing the Threat 121
B. Strategic Framework 122
C. Normative Framework 124
I. International Anti-Terrorism Law 124
II. Norms on Non-Proliferation, Arms Control and Disarmament 126
III. Informal Arrangements and Initiatives 128
D. Specific Approaches 129
I. International Criminalization 129
1. The Nuclear Terrorism Convention as a Prototype 130
2. Other Convention-Based Crimes 132
3. Criminalization by the Security Council 133
II. Physical Protection of WMD and Related Material 133
III. Interdiction of Shipments 135
1. The Proliferation Security Initiative as a Model for Cooperation 136
2. Legal Issues Surrounding Interdiction Operations at Sea 136
E. Concluding Remarks 140
Knut Dörmann: Conventional Disarmament – Nothing Newon the Geneva Front? 143
A. Scope 143
B. Achievements in the Context of the Convention on Certain Conventional Weapons 144
C. Failed or Unfinished Business of the Conventional Weapons Convention and Responses Outside that Context 152
I. Anti-Vehicle Mines 152
II. Cluster Munitions 154
1. The Problem 154
2. The Reaction of the International Community – Two Codification Initiatives 157
III. Evaluation 162
D. Development of an International Arms Trade Treaty 163
E. Conclusion 166
Christiane Höhn: International Humanitarian Law in the European Union’s Common Foreign and Security Policy, in Particular the EU Code of Conduct on Arms Exports 167
A. Introduction 167
B. The European Union’s Guidelines on Promoting Compliance with International Humanitarian Law 168
C. The EU Code of Conduct for Arms Exports 170
I. Introduction 170
II. Provisions of the Code 173
1. General 173
2. Criterion Two: Human Rights 175
3. Criterion Six: International Law, Including IHL 177
4. Notification and Consultation Mechanism about Denials 177
5. Reporting and Outreach 178
III. The Way Ahead 179
D. Conclusion 181
Sean D. Murphy: Protean Jus ad Bellum 183
A. Introduction 183
B. Static Jus ad Bellum 185
C. Protean Jus ad Bellum 187
I. The Pre-Charter Era 188
II. Direct Aggression by States 189
III. Indirect Aggression by States 190
IV. Distant but Grave Threats 192
V. Grave Threats to Persons 194
VI. Grave Threats from Transnational Terrorism 197
D. Reaffirming or Recodifying the Jus ad Bellum 199
I. Maintaining the Status Quo 199
II. Debating Reaffirmation or Recodification 208
III. The Means of a Reaffirmation or Recodification 211
E. Conclusion 215
Christine Gray: The International Community’s “Responsibility to Protect” Populations from War Crimes and Other International Crimes 217
A. The Threshold for Intervention 218
B. The UK Approach to the Threshold for Military Intervention 220
C. Characterization of International Crimes 223
D. Darfur and the Responsibility to Protect 224
E. The Duties of UN Member States under the Responsibility to Protect 226
F. Decision Making on Military Action through the UN Security Council 227
G. Action on Behalf of the International Community? 228
Kirsten Schmalenbach: Preventing and Rebuilding Failed States 231
A. Introduction 231
B. Anamnesis: From Weakness to Failure 233
C. Preventing State Failure 237
I. The UN Prevention Strategy 237
II. Duty to Cooperate 238
III. Unilateral Measures and Interventions 242
IV. Legal Limits to Chapter VII Measures 243
D. Rebuilding Failed States 246
I. Actors and Approaches 247
II. Law Governing United Nations State-Building Missions 248
1. Right to Internal Self-Determination 249
2. Law of Occupation and Human Rights Law 251
III. Law Governing Rebuilding Efforts of Third States 254
E. Conclusion 256
Dagmar Richter: Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres? 257
A. The Fragmentation of International Law Relating to Armed Conflict – An Introduction 257
B. Rules Governing the Relationship between Norms in International Law 259
I. “Conflict Rules” in International Law 259
1. General Rules of Interpretation: Lex Specialis and Lex Posterior 259
2. The Vienna Convention on the Law of Treaties 261
a) Art. 30 VCLT 261
b) Art. 31 (3) (c) VCLT 262
3. Art. 103 UN Charter – a “Meta Conflict Rule”? 264
II. Reference Rules 265
1. Derogation Clauses in Human Rights Treaties 265
2. Most-Favorable-to-the-Individual-Clauses 267
3. IHL References to HRL 267
a) Common Art. 2 of the Geneva Conventions 268
b) The Martens Clause and Its Successors 268
c) Explicit Human Rights Clauses in Humanitarian Law Treaties 269
C. The Applicability of Treaty Law (HRL and IHL) in Situations of Armed Conflict 271
I. Situation Assessment by Humanitarian Law 271
II. Territorial Limits and Openness of Human Rights Treaty Regimes 272
1. Art. 2 (1) ICCPR 273
2. Art. 1 ECHR 278
a) States Exercising Control over the Territory of Another State Party: Inside the European espace juridique 279
b) Outside the European espace juridique 281
c) Control Being Exercised by an International Organization 283
d) State Practice: The Jurisprudence of the House of Lords 285
3. A Common View on “Jurisdiction”? 286
D. The Relationship between HRL and IHL in Practice 288
I. Applying Law Other than the Law Specific to a Court’s Jurisdiction 288
1. The Application of Humanitarian Law by Human Rights Bodies 288
2. The Application of Human Rights Lawby International Criminal Courts 289
II. Jurisprudence 290
1. ICJ: Learning About the Limits of Lex specialis 290
a) Nuclear Weapons (1996) 290
b) The Likely Impact of General Comment No. 31 of the Human Rights Committee 291
c) Legal Consequences of the Construction of a Wall (2004) and Armed Activities on the Territory of the Congo (2005) 292
2. Inter-American Human Rights Bodies: From the Establishment of Violation to the Mere Consideration of IHL 293
a) Inter-American Commission of Human Rights 293
aa) The Early “Substantive Overlap” Doctrine: Abella (1997) and Other Similar Cases 293
bb) The “Common Nucleus” Doctrine: Coard (1999) 295
cc) Conjunctive Approach: Ellacuría, S.J. (1999), Monsignor Romero (2000) 296
dd) Interpretative Approach: Riofrío Massacre, Columbia (2001) 297
ee) Subsidiary Approach: Detainees at Guantánamo Bay (2002) 297
b) Inter-American Court of Human Rights 298
aa) Las Palmeras (2000) 299
bb) Bamaca-Velasquez (2000) 300
cc) Serrano Cruz Sisters (2004) 300
c) Analysis 301
3. European Court of Human Rights: The Mystery of Ignorance 303
a) Ergi (1998) and Isayeva (2005) 304
b) Analysis 305
4. International Criminal Tribunals: Transforming Human Rights Concepts into Humanitarian Law 306
a) Ad hoc Tribunals: Indirect Consideration of Human Rights Law 306
aa) The International Criminal Tribunal for Rwanda as a Peace-maker: Akayesu (1998) 306
bb) The International Criminal Tribunal for the former Yugoslavia: Adopting the Further Elements Approach in Delalić and Furundžija (1998) 307
cc) Peculiarity and Embedment of the ad hoc Tribunals in the International Human Rights Order 309
b) International Criminal Court: Subsidiary Function of Human Rights Law 310
E. Synthesis 311
I. General Overview 311
II. Application of Human Rights Treaties in Armed Conflict 311
1. The Relevance of the Character of the Armed Conflict 311
2. Restatement of the Effective Control Criterion with Regard to Extraterritorial Application 313
a) Importing Human Rights to Foreign Legal Cultures? 313
b) Reverse Proportionality 314
c) Presumption of the Existence of Jurisdiction and Priority Rule 314
d) The Prime Importance of the “Normality Rule” 315
e) Which Human Rights Convention is to Be Applied by an Occupying Power? 316
3. Expressiveness and Consequences of Non-Derogation 317
III. Rethinking the Relationship between International Humanitarian Law and Human Rights Law 319
1. Why the Specialty Rule Proves Erroneous 319
2. The System-Based Approach 320
3. Intersecting Circles but Separate Spheres 321
Rainer Hofmann: Can Victims of Human Rights Violations Claim Damages? 323
A. Individual Claims for Human Rights Violations 323
B. Individual Claims for International Humanitarian Law Violations 325
I. The Situation under the lex lata 325
II. Considerations de lege ferenda 329
C. Concluding Remarks 331
Ralph Wilde: From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers 333
A. Introduction 333
B. What is Occupation in International Law and Public Policy? 335
C. What is Trusteeship in International Law and Public Policy? 336
I. General Concept 336
II. Colonial Trusteeship 337
III. Mandate and Trusteeship Arrangements 338
IV. Occupation as Trusteeship 338
V. The Twin Objectives of Trusteeship: Care and Improvement 340
VI. Common Concept of Trusteeship 341
D. How do Occupation and Trusteeship Relate to International Territorial Administration? 341
I. Trusteeship Characteristics 341
II. Michael Bothe and Thilo Marauhn’s “Security Council Trusteeship Administration” Concept 342
III. Do Trusteeship and Occupation Presuppose Imposition? 345
IV. Does Occupation only Cover State-Conducted Activity? 346
V. Holistic Category of “Trusteeship” Encompassing Colonialism, Occupation and International Territorial Administration 348
E. Applicable Law – What Law Does Apply? 351
I. General Issues 351
II. Human Rights Law in Particular: Whether and How it Applies Extraterritorially 353
F. Applicable Law – What Law Should Apply? 356
I. Why Consider this Question 356
II. Occupation Law: Compatibility with Transformation and Adequacy as a Framework for Regulation 357
III. Human Rights Law: Should it Apply? 358
G. Trusteeship and Accountability 362
H. The Missing Issue and Area of International Law – Self-Determination 368
Eyal Benvenisti: The Law on the Unilateral Termination of Occupation 371
A. Introduction: The Ways of Ending Occupations 371
B. When Occupation Ends? 372
C. The Occupant’s Forward-Looking Obligations 376
I. Forward-Looking Obligations of the Occupant During the Occupation 376
II. Obligations of the Occupant at the Moment of Ending the Occupation 377
III. Obligations of State Parties under Human Rights Law 378
D. Consequences of Failure to Comply 380
E. Conclusion 381
Gregory H. Fox: A Return to Trusteeship? A Commenton International Territorial Administration 383
A. Introduction 383
B. Why Not a “Return” to Trusteeship? 386
I. Distinct Objectives 386
II. Distinct Normative Foundations 388
C. Conclusions 392
Robert Heinsch: The International Committee of the Red Cross and the Challenges of Today’s Armed Conflicts 393
A. Introduction 393
I. The ICRC’s Mission in General 393
II. What Are Today’s Predominant Types of Conflicts? 394
III. Can International Humanitarian Law Stand the Test of Time? 396
B. The Challenges for International Humanitarian Law with Regard to Today’s Armed Conflicts 397
I. Assimilation of the Rules for International and Non-International Armed Conflict 397
1. Is There Still a Clear-Cut Distinction between International and Non-International Armed Conflicts? 397
2. Jurisprudence and Statutes of International Criminal Tribunals Have Assimilated the Two Legal Regimes 399
3. Customary Law as Presented in the ICRC Study Reflects this Assimilation 403
II. The Challenges of Asymmetrical Warfare and Terrorism 404
1. Today’s Discussion Does Not Circle around Non-Internationalor International Armed Conflict but Rather on IHL or Not IHL 404
2. Is the “War Against Terrorism” an Armed Conflict in the Sense of IHL? 407
3. How Does International Humanitarian Law Deal with “Illegal Combatants?” 411
4. Definition for “Direct Participation of Civilians” 413
III. Do We Need a Revision of the Present Rules of International Humanitarian Law? 414
C. Conclusion 415
Walter Kälin: The ICRC’s Compilation of the Customary Rules of Humanitarian Law 417
A. The Study 417
B. The Critique 419
C. Assessment 421
I. “Specially Affected” Interests of States 422
II. Expansion of the Situational Scope of Application 424
III. Persistent Objectors 425
D. Opinio Juris: Subjective Will or Objective Element? 426
E. The Way Forward 427
Hans-Joachim Heintze: Terrorism and Asymmetric Conflicts – A Rolefor the Martens Clause? 429
A. The Stages of Development of the Martens Clause 429
B. Application in Asymmetric Wars 431
C. Application of the Martens Clause in the “War on Terror” 432
D. Conclusion 434
Karin Oellers-Frahm: Nowhere to Go? – The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction 435
A. Introduction 435
B. The Obligation to Settle Disputes Peacefully 435
I. From the Principle to the Obligation to Settle Disputes Peacefully 435
II. Settlement of Disputes and Maintenance of International Peace 436
III. Free Choice of Means of Dispute Settlement 437
C. Compulsory Jurisdiction 438
I. “Compulsory” Jurisdiction in International Law 438
II. Requirement of a Permanent Judicial Organ 438
III. Acceptance of Compulsory Jurisdiction 439
D. Compulsory Jurisdiction in Special Regimes 440
I. The Creation of Special Regimes 441
II. Special Courts for Special Regimes 442
III. Interim Conclusions 444
E. Settlement of Political Disputes 445
I. The Different Categories of Disputes and Their Justiciability 445
1. Maintenance of Peace and Settlement of Disputes 445
2. Justiciability of Political Disputes 446
II. The “Settlement” of Disputes 447
1. The Justiciability of Disputes 447
2. Compliance with Judgments 448
III. Use of Force and Settlement of Disputes 449
F. Where to Go? 450
G. Concluding Remar 451
Bruno Simma: How Has Article 36 (2) of the ICJ Statute Fared? 455
Christian J. Tams: The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction 461
A. Introduction 461
B. Clarifications 462
I. Compromissory Clauses 462
1. Clauses in Treaties versus Clauses in Optional Protocols 465
2. PCIJ/ICJ Clauses versus Clauses Referring to Other Dispute-Settlement Bodies 466
3. Types of Treaties Containing Compromissory Clauses 467
4. Proper Compromissory Clauses versus Opt-In Mechani 468
5. PCIJ versus ICJ Clauses 468
6. Interim Assessment 469
II. Relevance 469
C. The Continued Relevance of Compromissory Clauses 469
I. Agreement on Compromissory Clauses 470
1. Statistics 470
2. Importance 471
3. Developments 476
4. Interim Conclusions 479
II. Reliance on Compromissory Clauses in ICJ Proceedings 481
1. Statistics 481
2. Importance 484
3. Developments 485
III. An Assessment 487
D. Consequences of their Continued Relevance 488
I. Incremental Progress 488
II. A Piecemeal Approach to Dispute Settl 489
III. A Focus on Treaty Breaches 490
E. Concluding Remarks 491
Frank Hoffmeister: The Aegean Conflict – An Unsettled Disputein Turkey’s EU Accession Course 493
A. Introduction 493
B. Background 493
I. Historical Development 493
II. The Approaches of Greece and Turkey 494
1. The Scope of the Dispute 494
2. The Applicable Law 495
3. Third Party Settlement 497
C. The EU Dimension 498
I. The Peaceful Settlement of Border Disputes as a Criterion for Accession 498
II. The Aegean Conflict in Turkey’s Accession Course 500
D. Conclusion 502
Oliver Dörr: The European Court of Justice Getting in the Way: The Abortive MOX Plant Arbitration 503
A. Conflicts of Courts in International Law 504
B. The MOX Plant Dispute 505
C. Exclusive Jurisdiction under European Community Law 507
D. Final Remarks 508
Christine Chinkin: Panel Discussion: Has International Law Civilized Conflicts since 1907? (Remarks) 509
Remarks by Christian Tomuschat 513
Remarks by Natalino Ronzitti 515
List of Contributors 521