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The Authority of the International Committee of the Red Cross: Determining What International Humanitarian Law Is de Linus Jannek Mührel

The Authority of the International Committee of the Red Cross: Determining What International Humanitarian Law Is: International Humanitarian Law Series, cartea 68

Autor Linus Jannek Mührel
en Limba Engleză Hardback – 15 feb 2024
This book conducts the first ever comprehensive study of the ICRC’s interpretations and law-ascertainments. It analyses in detail their impact on the development of international humanitarian law and international law in general as well as the reasons for their impact. This analysis involves the discussion of the ICRC’s authority. Is it legal or just factual authority? The analysis also illuminates the direction that IHL – and international law in general – develops. This insight sheds light on the question of the current type of international law, i.e., what international law is and who makes it.
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Specificații

ISBN-13: 9789004687813
ISBN-10: 9004687815
Pagini: 405
Dimensiuni: 155 x 235 mm
Greutate: 0.78 kg
Ediția:xxxii, 359 pp.
Editura: Brill
Colecția Brill | Nijhoff
Seria International Humanitarian Law Series

Notă biografică

Linus Mührel, Dr. iur. (2022), Freie Universität Berlin, is a criminal defense lawyer and lecturer at Technische Universität Dresden. He has published books and articles on public international law, especially international humanitarian law and human rights law.

Cuprins

Acknowledgements

Abbreviations

Table of Cases

Table of Treaties

Table of United Nations Documents

Introduction
1 The icrc’s Determinations on International Humanitarian Law: An Under-Researched Aspect in the Study of the icrc

2 What Can Be Learned from the icrc’s Interpretations and Law-Ascertainments about the Current Type of International Law?
2.1Globalisation and the Role of Non-state Actors

2.2Softening and Hierarchisation of International Law by Dominant States

2.3Points of Departure


3 Methodology

4 Chapter Outline


1The Authority of the International Committee of the Red Cross
1 The Concept of Authority

2 Does the icrc Possess a Competence to Interpret and Ascertain International Humanitarian Law?
2.1The icrc’s Role under the Geneva Conventions and Additional Protocols

2.2The icrc’s Role under the Statutes of the Red Cross and Red Crescent Movement


3 The icrc’s De Facto Authority

4 No Legal Bindingness


2De Facto Authority of the icrc’s Interpretations and Law-Ascertainments
1 Pictet Commentaries
1.1Broad Acceptance in the Jurisprudence of International Courts and Tribunals

1.2Broad Acceptance in State Practice

1.3The Marks of the Pictet Commentaries’ Authority

1.4Conclusion: Shaping the Content of the Geneva Conventions


2 Commentary on the Additional Protocols
2.1Broad Acceptance in the Jurisprudence of International Courts and Tribunals

2.2Broad Acceptance in State Practice

2.3The Marks of Authority of the Commentary on the Additional Protocols

2.4Conclusion: Nearly Primary Sources, but Less Special than the Pictet Commentaries


3 Customary International Humanitarian Law Study
3.1Critical but Welcoming Reactions in Academia

3.2Selective Use in the Jurisprudence of International Courts and Tribunals

3.3Rejection and Acceptance in State Practice

3.4The Study’s Marks of Authority

3.5Conclusion: Filling the Loopholes in International Humanitarian Law


4 Interpretive Guidance on the Notion of Direct Participation in Hostilities
4.1Broad Criticism in Academia

4.2Little Use in the Jurisprudence of International Courts and Tribunals

4.3Cautious Reactions in State Practice

4.4The Guidance’s Marks of Authority

4.5Conclusion: Helpful but Not Authoritative


5 New Commentaries
5.1Mostly Positive Reactions in Academia

5.2Immediate Consideration in the Jurisprudence of International Courts and Tribunals

5.3Rejection of the Interpretation of Common Article 1 in State Practice

5.4The New Commentaries’ Marks of Authority

5.5Conclusion: No Special Status for the New Commentaries Yet


6 Assessment: Changes in the Marks and Different Degrees of Authority
6.1Proximity to Legal Sources

6.2Increase and Diversification of the Expert Community

6.3Expansion of International Law


7 Conclusion: The Change of the icrc’s Role for International Humanitarian Law


3The icrc’s Impact on the Structural Rules of International Law
1 Identification of Customary International Law
1.1Role in Academic Works

1.2Role in the Work of the International Law Commission on the Identification of Customary International Law

1.3High Impact on the Identification of Customary International Law


2 Interpretation of Treaties
2.1Confirmation of the International Law Commission’s Draft Conclusions on Subsequent Practice?

2.2Relevant Rules of International Law Applicable in the Relations between Parties

2.3Preparatory Work

2.4Possible Impact on the Interpretation of Treaties


3 Tendencies of Specialisation and Merging of the Sources of International Humanitarian Law
3.1Implications for Specialisation of the Sources of International Humanitarian Law

3.2Implications for Merging of the Sources of International Humanitarian Law


4 Conclusion: A New Role for the icrc


4Legal Classification of the icrc’s Interpretations and Law-Ascertainments under the Sources of Law Doctrine and the Means of Interpretation
1 No Practice under Article 38 (1) (b) of the Statute of the International Court of Justice

2 Subsidiary Means for the Determination of Rules of Law under Article 38 (1) (d) of the Statute of the International Court of Justice
2.1Teachings of the Most Qualified Publicists of the Various Nations

2.2Does Determination of Rules of Law Include Their Interpretation?


3 No Means of Interpretation under Article 31 of the Vienna Convention on the Law of Treaties

4 Supplementary Means of Interpretation under Article 32 of the Vienna Convention on the Law of Treaties?

5 The icrc’s Interpretations and Law-Ascertainments under the Martens Clause as Dictates of Public Conscience?

6 What Role for Non-state Actors? A Political Question


Conclusion
1 Summary of Main Research Results

2 The Future Role of the icrc’s Interpretations and Law-Ascertainments

3 How the icrc’s Interpretations and Law-Ascertainments Should Be Dealt with in Academia and Legal Practice


References

Index