People and ideas systems - Andrew Roberts

But norms and rules, asWittgenstein has shown, are essentially public, and that means thatwhen I engage in practices I must be essentially interchangeable withanyone else who does: I eat as one eats; I drive as one drives; I evenprotest as one protests.

"The Great Gallery, Horseshoe Canyon", photo by Scott Catron
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Today, there is a general tendency to reduce the difference between applicable in international and in non-international armed conflicts. The jurisprudence of international criminal tribunals, the influence of human rights and even some treaty rules adopted by States have moved the law of non-international armed conflicts closer to the law of international armed conflicts, and it has even been suggested in some quarters that the difference be eliminated altogether. In the many fields where the treaty rules still differ, this convergence has been rationalized by claiming that under customary international law the differences between the two categories of conflict have gradually disappeared. The study on customary International Humanitarian Law [] comes, after ten years of research, to the conclusion that 136 (and arguably even 141) out of 161 rules of customary humanitarian law, many of which are based on rules of applicable as a treaty to international armed conflicts, apply equally to non-international armed conflicts.

Postmodernism (Stanford Encyclopedia of Philosophy)

People and ideas systems As outlined by Andrew Roberts of Middlesex University, London
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For the contention that a treaty becomes binding upon all nations when a great majority of the world has expressly accepted it would suggest that a certain point is reached at which the will of non-parties to the treaty is overborne by the expression of a standard or an obligation to which the majority of States subscribe. The untenability of that view is quite clear in the case of treaties establishing the basic law of an international organization or laying down detailed rules concerning such matters as copyrights or customs duties or international commercial arbitration [...] Treaties of an essentially humanitarian character might be thought to be distinguishable by reason of their laying down restraints on conduct that would otherwise be anarchical. In so far as they are directed to the protection of human rights, rather than to the interests of States, they have a wider claim to application than treaties concerned, for example, with the purely political and economic interests of States. The passage of humanitarian treaties into customary international law might further be justified on the ground that each new wave of such treaties builds upon the past conventions, so that each detailed rule of the Geneva Conventions for the Protection of War Victims is nothing more than an implementation of a more general standard already laid down in an earlier convention, such as the Regulations annexed to Convention No. IV of The Hague. These observations, however, are directed to a distinction which might be made but which is not yet reflected in State practice or in other sources of the positive law.

the making of such rules by the ..

For all these reasons, particular consideration has to be given in the field of to treaties as a source of customary international law – in particular to the general multilateral conventions codifying the law and the process leading to their preparation and acceptance. Taking an overall view of all practice, it may, for example, be found that a rule set out in the two 1977 Additional Protocols corresponds today to customary law binding on all States and belligerents, either because it codifies (stricto sensu) previously existing general international law,[] because it translates a previously existing practice into a rule, because it combines, interprets or specifies existing principles or rules,[] because it concludes the development of a rule of customary international law or because it was a catalyst for the creation of a rule of customary through subsequent practice and multiple consent of States to be bound by the treaty. It is therefore generally agreed today that most, but clearly not all, of the rules set out in the Additional Protocols formulate parallel rules of customary international law. Whether such customary rules necessarily also apply in non-international armed conflicts is in our view another issue, one which must be decided on the basis of the practice and opinio juris of States (and, some would add, armed groups) in non-international armed conflicts. Even persistent objectors cannot escape from their obligations under jus cogens, i.e. from most obligations under .