Applying a Sovereign Agency Theory of the Law of Armed Conflict

43 Pages Posted: 19 Aug 2011 Last revised: 9 Jun 2015

See all articles by Eric Talbot Jensen

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: August 18, 2011

Abstract

The current bifurcated conflict classification paradigm for the applicability of the Law of Armed Conflict, or LOAC, has lost its usefulness. Initial regulation of State militaries was originally based on the principle that the armed forces of a State were acting as the sovereign agents of the State and were granted privileges and given duties based on that grant of agency. These privileges and duties became the bases for the formulation of the modern LOAC. During the 20th Century, the LOAC became bifurcated, with the complete LOAC applying only to armed conflicts between sovereigns and only minimal provisions of the law applying to armed conflicts that were not between sovereigns. This bifurcation has led to a lack of clarity for the sovereign’s agents in LOAC application and given States the ability to manipulate which law applies to their application of force through their agents. The applicability of the LOAC should no longer be based on the manipulable and unclear conflict classification paradigm, but should instead return to its foundations in the sovereign’s grant of agency. Thus, anytime a sovereign applies violent force through its armed forces, those armed forces should apply the full LOAC to their actions, regardless of the type or classification of the conflict.

Keywords: Law of war, Law of Armed Conflict, International Humanitarian Law, International Law

JEL Classification: K10, K33

Suggested Citation

Jensen, Eric Talbot, Applying a Sovereign Agency Theory of the Law of Armed Conflict (August 18, 2011). Chicago Journal of International Law, Vol. 12, p. 685, 2012, Available at SSRN: https://ssrn.com/abstract=1912027

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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