This chapter examines international humanitarian law, the principal body of international law which applies in times of armed conflict, and which seeks to balance the violence inherent in an armed conflict with the dictates of humanity. International humanitarian law protects the civilian population from the ravages of conflict, and establishes limitations on the means and methods of combat. The chapter is organized as follows. Section 2 considers the nature of international humanitarian law and identifies some of its cardinal principles and key rules. Section 3 explores the similarities and differences between international humanitarian law and international human rights law, comparing and contrasting their historical origins and conceptual approaches. Given that international humanitarian law applies during armed conflict, Section 4 considers whether there is a need for international human rights law also to apply. Section 5 ascertains the relationship between the two bodies of law and Section 6 considers some of the difficulties with the application of international human rights law in time of armed conflict.
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Chapter
Sandesh Sivakumaran
This chapter examines international humanitarian law, the principal body of international law which applies in times of armed conflict, and which seeks to balance the violence inherent in an armed conflict with the dictates of humanity. International humanitarian law protects the civilian population from the ravages of conflict, and establishes limitations on the means and methods of combat. The chapter first considers the nature of international humanitarian law and identifies some of its cardinal principles and key rules. It then explores the similarities and differences between international humanitarian law and international human rights law, comparing and contrasting their historical origins and conceptual approaches. Given that international humanitarian law applies during armed conflict, the chapter next considers whether there is a need for international human rights law also to apply. Finally, it ascertains the relationship between the two bodies of law and considers some of the difficulties with the application of international human rights law in time of armed conflict.
Chapter
Jonathan Hill
This introductory chapter begins by explaining the nature of the subject known as conflict of laws or private international law, which deals with cases before the English court which have connections with foreign countries. The foreign elements in the case may be events which have taken place in a foreign country or countries, or they may be the foreign domicile, residence, or place of business of the parties. In short, any case involving a foreign element raises potential conflict of laws issues. The conflict of laws is concerned with the following three questions: jurisdiction; choice of law; and the recognition and enforcement of foreign judgments. The remainder of the chapter discusses the various stages of proceedings which raise conflict of laws issues.
Chapter
Jonathan Hill
This chapter considers the choice of law rules for the transfer of property. The rules are structured round a number of distinctions. First, a distinction has to be drawn between movables and immovables. Immovable property, which comprises land and things attached to or growing on the land, is subject to the control of the authorities where it is situated to a much greater extent than movable property, which can be physically removed from one country to another. As regards movables, a further distinction is drawn between tangibles and intangibles. Secondly, the law distinguishes between cases involving the transfer of property on death and cases where property is transferred inter vivos. Thirdly, transfers which arise as a result of marriage should be distinguished from other types of transfer.
Book
Edited by Malcolm Evans
International Law is a collection of diverse writings from leading scholars in the field that brings together a broad range of perspectives on all the key issues in international law. Featuring chapters written by those actively involved in teaching and practice, this fifth edition explains the principles of international law, and exposes the debates and challenges that underlie it. The book contains seven parts. Part I provides the history and theory of international law. Part II looks at the structure of the international law obligation. Part III covers the subjects of the international legal order. Part IV looks at the scope of sovereignty. Part V looks at responsibility. Part VI considers how to respond to breaches in international obligations. Finally, Part VII looks at the various applications of international law and explains issues relating to the law of the sea, environmental law, investment law, criminal law, human rights law, migration law, and the law of armed conflict.
Chapter
The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.
Chapter
Jonathan Hill
The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.
Chapter
Jonathan Hill
This chapter deals with contract disputes which have foreign elements that come before the English court: one or both of the parties may be foreign; the making or performance of the contract may be connected with a number of foreign countries. In this type of case which law is the court to apply? The general principle is that every international contract has a governing law — known at common law as the ‘proper law’and under EU law as the ‘applicable law’. Subject to certain limitations, parties to a contract are free to choose the applicable law; if the parties fail to make a choice, the governing law is, as a general rule, the law of the country with which the contract is most closely connected. The remainder of the chapter focuses on the Rome I Regulation, including its scope and interpretation; determining the applicable law; the limits of the applicable law; articles 5 to 8; and choice of law aspects of various contractual issues.
Book
Anders Henriksen
International Law provides comprehensive and concise coverage of the central issues in public international law. The text takes a critical perspective on various aspects of international law, introducing the controversies and areas of debate without assuming prior knowledge of the topics discussed. Supporting learning features, including central issues boxes, chapter summaries, recommended reading and discussion questions, highlight the essential points. Topics covered include the history of international law, legal sources, the law of treaties, legal personality, jurisdiction and state immunity. The text also looks at the international law of the sea, human rights law, international environmental law, international economic law, the peaceful settlement of disputes, the use of force, the laws of armed conflict and international criminal law.
Book
Anders Henriksen
International Law provides comprehensive and concise coverage of the central issues in public international law. The text takes a critical perspective on various aspects of international law, introducing the controversies and areas of debate without assuming prior knowledge of the topics discussed. Supporting learning features, including central issues boxes, chapter summaries, recommended reading and discussion questions, highlight the essential points. Topics covered include the history of international law, legal sources, the law of treaties, legal personality, jurisdiction and state immunity. The text also looks at the international law of the sea, human rights law, international environmental law, international economic law, the peaceful settlement of disputes, the use of force, the laws of armed conflict and international criminal law.
Chapter
This chapter discusses the law of war crimes. It begins by introducing the basic principles of the law of armed conflict (LOAC): distinction and proportionality. It then distinguishes between international and non-international armed conflicts; outlines the contextual element and mental element required for war crimes; provides an overview of the prohibited acts that may form the conduct underlying a war crime; and examines select war crimes in more detail. The chapter concludes with a table comparing the range of offences applicable under the International Criminal Court (ICC) Statute to NIACs and IACs. It also provides a hypothetical scenario to which the law can be applied.
Chapter
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter discusses the use of force in international law. It first considers the early, failed attempts to control the use of force through the Covenant of the League of Nations in 1920 and the 1928 Pact of Paris. It then turns to the post-World War II United Nations Charter that contains a clear and absolute prohibition on the unilateral use of force, except in self-defence. It considers Charter provisions that grant the UN a very wide range of powers, including the power of the Security Council to investigate any situation which might lead to international friction or give rise to a dispute. The chapter goes on to discuss the Law of Armed Conflict or jus in bello.
Chapter
Jonathan Hill
Non-contractual obligations cover both tortious obligations and obligations which arise from unjust enrichment and analogous doctrines. Until relatively recently, choice of law rules formulated by the courts held sway in relation to both torts and restitution. However, the expanding role of the European Union in the field of private international law has led to Europe-wide legislation in the form of the Rome II Regulation. The Rome II Regulation lays down choice of law rules not only for tortious obligations, but also for other non-contractual obligations (arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo). Because the material scope of the Regulation is limited in certain ways, the choice of law rules which preceded the entry into force of the European choice of law regime continue to apply to some common torts (in particular, defamation). This chapter discusses the Rome II Regulation, including its scope, tortious obligations, other non-contractual obligations, general provisions, non-contractual obligations excluded from the Rome II Regulation, and the interaction of non-contractual obligations and contractual obligations.
Book
Gleider Hernández
International Law presents a comprehensive approach to the subject, providing a contemporary account of international law. The text offers critical and stimulating coverage of the central issues in public international law, introducing the key areas of debate. It encourages readers to engage with areas of legal debate and controversy and consider how they affect the world today. Topics covered include: the structure of international law; the subjects within the field of international law; international law in operation; international disputes and responses to breaches in international law; and specialized regimes, which include the law of armed conflict, refugee law, international criminal law, the law of the sea, the environment and protection, and international economic law.
Book
Gleider Hernández
International Law presents a comprehensive approach to the subject, providing a contemporary account of international law. The text offers critical and stimulating coverage of the central issues in public international law, introducing the key areas of debate. It encourages readers to engage with areas of legal debate and controversy and consider how they affect the world today. Topics covered include: the structure of international law; the subjects within the field of international law; international law in operation; international disputes and responses to breaches in international law; and specialized regimes, which includes the law of armed conflict, refugee law, international criminal law, the law of the sea, the environment and protection, and international economic law.
Chapter
This chapter assesses the law of armed conflict. The right to resort to armed force, known as ‘jus ad bellum’, is a body of law that addresses the permissibility of entering into war in the first place. Despite the restrictions imposed by this body of law, it is clear that international law does not fully forbid the use of force, and instances of armed disputes between and within States continue to exist. Consequently, a second, older body of law exists called ‘jus in bello’, or the law of armed conflict, which has sought to restrain, or at least to regulate, the actual conduct of hostilities. The basic imperative of this body of law has been to restrict warfare in order to account for humanitarian principles by prohibiting certain types of weapons, or protecting certain categories of persons, such as wounded combatants, prisoners of war, or the civilian population.
Chapter
Jonathan Hill
This chapter deals with the recognition of enforcement of foreign judgments by English courts. The crucial question is not whether foreign judgments should be recognised and enforced in England but which judgments should be recognised and enforced. There are, broadly speaking, two theories. The first is the theory of obligation, which is premised on the notion that if the original court assumed jurisdiction on a proper basis the court's judgment should prima facie be regarded as creating an obligation between the parties to the foreign proceedings which the English court ought to recognise and, where appropriate, enforce. The alternative theory is based on the idea of reciprocity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. Whichever theory is adopted, the recognition and enforcement of foreign judgments is limited by a range of defences which may be invoked by the party wishing to resist the judgment in question. It would be unrealistic to expect the English court to give effect to a foreign judgment which conflicts with fundamental notions of justice and fairness. So, the recognition and enforcement of foreign judgments is a two-stage process: Are the basic conditions for recognition or enforcement satisfied? If so, is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced? The remainder of the chapter discusses the recognition and enforcement at common law; statutory regimes based on the common law; recognition and enforcement under the Brussels I Recast; and United Kingdom judgments.
Chapter
Jonathan Hill
When the English court has to decide whether a marriage is valid, foreign elements may be involved: one or both of the spouses may be of overseas origin, or the marriage may have been celebrated in a foreign country. This chapter considers which law applies to determine the validity of such marriages. For choice of law purposes, rules about the validity of marriage are divided into two classes: those concerned with formal validity and those concerned with essential validity or capacity to marry. Rules of formal validity lay down the way in which a marriage must be celebrated (for example, to ensure publicity and proof of marriage). Rules of essential validity or capacity are concerned with the permissibility of the marriage relationship itself — whether the parties ought to be allowed to marry each other (or at all). The chapter also discusses the application of the doctrine of renvoi and rules for same-sex marriages, civil partnerships, and polygamous marriages.
Book
Jonathan Hill and Máire Ní Shúilleabháin
Clarkson & Hill's Conflict of Laws, now in its fifth edition, provides a clear and up-to-date account of private international law topics. Theoretical issues and fundamental principles are introduced in the first chapter and expanded upon in later chapters. Basic principles of the conflict of laws are presented, offering clarity on complex points and terminology. The fifth edition reflects the field's changing focus from case law to domestic and European legislation, incorporating the Brussels I Regulation and Brussels II Revised Regulation, as well as the more recent Rome Regulations and Brussels I Recast. Embracing this reorientation of the field and increased emphasis on the recognition and enforcement of judgments, the chapters provide detailed commentary on the most important commercial topics as well as the most relevant topics in family law.
Chapter
Jonathan Hill
This chapter addresses the English court's jurisdiction other than in family law matters and excluding a few other kinds of proceedings. There are two types of claim which may be commenced in England: claims in personam and admiralty claims in rem. A claim inpersonam is one in which the claimant seeks a judgment requiring the defendant to pay money, deliver property or do, or refrain from doing, some other act. A claimant who wishes to commence proceedings in personam must be able to serve a claim form on the defendant — either in England or abroad. Admiralty proceedings in rem are directed against property, usually a ship. A typical case is where the claimant has a claim against a ship-owner in respect of his ship — for example, where the claimant's cargo has been damaged as a result of the negligent navigation of the vessel. The remainder of the chapter discusses the bases of jurisdiction in personam; declining jurisdiction and staying proceedings; provisional measure designed to maintain the status quo pending the outcome of the dispute between the parties; and restraining foreign proceedings.
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