The Relationship between International Humanitarian Law and the Notion of State Sovereignty

Forthcoming in: The special issue of the Journal of Conflict and Security Law on 'The Impact of the Law of Armed Conflict on General International Law', Volume 23 (2018)

Amsterdam Law School Research Paper No. 2018-18

Amsterdam Center for International Law No. 2018-04

29 Pages Posted: 9 Jul 2018

See all articles by Rogier Bartels

Rogier Bartels

University of Amsterdam - Amsterdam Center for International Law

Date Written: July 3, 2018

Abstract

This article explores the relationship between international humanitarian law (IHL) and the State sovereignty. Historically, only wars between sovereign States were subject to regulation by the laws of war. From the 19th century onwards, States agreed upon a significant number of IHL treaties and in 1949, despite calls upon sovereignty, they accepted extension of a limited part of the rules to non-international armed conflicts. Since then, through the formation of customary international law and in part as result of new treaties, it has been accepted that the majority IHL has become applicable to internal conflicts. In addition, international institutions have been set up to prosecute individuals for serious violations of IHL. The author discusses how IHL and sovereignty have influenced each other’s development. The analysis shows that the development of IHL should not be seen as limiting State sovereignty, but rather ought to be regarded as a manifestation of sovereignty, expressed through the formation of this branch of international law by its core subjects: States. At the same time, as a result of the increased reliance on means other than treaties for clarification and development of IHL, the role of States has become more limited; it is reduced to either accepting or rejecting the prospective developments of IHL and any consequential impact on their sovereignty.

Keywords: State sovereignty, international humanitarian law, law of armed conflict, public international law, international criminal justice, humanitarian assistance

JEL Classification: K33

Suggested Citation

Bartels, Rogier, The Relationship between International Humanitarian Law and the Notion of State Sovereignty (July 3, 2018). Forthcoming in: The special issue of the Journal of Conflict and Security Law on 'The Impact of the Law of Armed Conflict on General International Law', Volume 23 (2018), Amsterdam Law School Research Paper No. 2018-18, Amsterdam Center for International Law No. 2018-04, Available at SSRN: https://ssrn.com/abstract=3207193 or http://dx.doi.org/10.2139/ssrn.3207193

Rogier Bartels (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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