State Opinio Juris and International Humanitarian Law Pluralism

91 International Law Studies 171 (2015)

Texas International Law Journal, Vol. 50, No. 2015

46 Pages Posted: 12 May 2015

See all articles by Michael N. Schmitt

Michael N. Schmitt

Naval War College - Stockton Center for the Study of International Law; University of Exeter Law School; Lieber Institute, USMA at West Point

Sean Watts

Creighton University School of Law

Date Written: May 11, 2015

Abstract

International humanitarian law has developed through a pluralistic process. Its history reveals a pattern of rough proportionality between State opinio juris and non-State expressions of law. These diverse sources have maintained a respectable yet realistic balance between humanity and military necessity. However, present IHL dialogue presents a stark contrast to the vibrant and pluralistic exchanges of the past. The substantive input of non-State actors such as non-governmental organizations, tribunals, and scholars far outpaces the work of States. Parity of input, especially in quantitative terms, is surely too much to demand and surely not necessary given the special status of State opinio juris. However, States’ legal agencies and agents should be equipped, organized, and re-empowered to participate actively in the interpretation and development of IHL. This Article, extracted from a larger work, argues that reinvigorating opinio juris would reestablish the pluralistic IHL dialogue that formerly tested, updated, and enriched the balance between military necessity and humanity.

Keywords: International Humanitarian Law, Law of War, Law of Armed Conflict, Opinio Juris, Public International Law, National Security Law

Suggested Citation

Schmitt, Michael N. and Watts, Sean, State Opinio Juris and International Humanitarian Law Pluralism (May 11, 2015). 91 International Law Studies 171 (2015) ; Texas International Law Journal, Vol. 50, No. 2015. Available at SSRN: https://ssrn.com/abstract=2605309

Michael N. Schmitt (Contact Author)

Naval War College - Stockton Center for the Study of International Law ( email )

686 Cushing Road
Newport, RI 02841
United States

HOME PAGE: http://www.usnwc.edu/Academics/Faculty/Michael-Schmitt.aspx

University of Exeter Law School ( email )

Streatham Court
University of Exeter
Exeter, EX4 4QJ
United Kingdom

HOME PAGE: http://socialsciences.exeter.ac.uk/law/staff/mschmitt/

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Sean Watts

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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