How International Humanitarian Law Is Shaped to Meet the Challenges Arising From Areas of Limited Statehood – Theoretical Problems in Practice

Abstract

Areas of limited statehood, in which the territorial State lacks effective control, either completely or in part, challenge International Humanitarian Law in various ways. The edited volume 'International Humanitarian Law in Areas of Limited Statehood – Adaptable and Legitimate or Rigid and Unreasonable?' explores if and how the law adapts to these challenges on the basis of mainly two legal issues: detention and investment protection in (non-)international armed conflict. Does a sufficient legal basis exist for the former? Is it International Humanitarian Law that determines what the investor is owed under a ‘full protection and security’ standard? More fundamentally, the contributions strive to shed light on these practical legal issues in a manner that is also historically and theoretically informed. How can international law be effective in areas of limited statehood, in particular as regards non-State actors? Can the law provide incentives for compliance? Is it in need of being developed? If so, who enjoys the legitimacy to do so?

These concluding observations try to draw the lessons learned from the individual contributions. It is argued, inter alia, that non-State actors’ situation should be taken into account when interpreting the law or devising proposals de lege ferenda, without, however, being so responsive as to dilute established standards and damage IHL’s legitimacy. IHL should neither proof to be too rigid, nor too adaptable: While auto-interpretation by States is sure to remain a decisive part of IHL in the near future, the contestation of their interpretations by other States and scholars is likewise an important feature of international law as a decentralised legal order. Where international courts and tribunals lack jurisdiction, the responsibility to effectively hold actors to reasonable interpretations of their competences and obligations under IHL falls to them.

Keywords: International Law, International Humanitarian Law, Investment Protection, Detention, Non-International Armed Conflict, Armed Conflict, Law of War, History, Area of Limited Statehood, Non-State Actor, Military Necessity, Interpretation, Development, Analogy, Effectiveness, Legitimacy, Icrc, Nature