The influence of sovereignty and non-intervention on the development of humanitarian law applicable in internal conflicts.
PhD thesis, University of Glasgow.
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Although internal conflicts are recurrent phenomena in the history of mankind, their regulation by international law has been very slow. The usual explanation of this state of affairs is that such events touch directly on the survival of established Governments or even the existence of the State itself.
States view with suspicion, fear and even hostility any attempt at the international level to regulate their conduct vis-`a-vis their local enemies.
They use the principles of sovereignty and non-intervention as a shield against any effective regulation of such tragic events by humanitarian law.
However, no serious attempt has been made by international lawyers to study the issue of the influence of those two principles on the development of humanitarian law applicable in internal conflicts.
This study tries to establish with exactitude how and where sovereignty and non-intervention have been resorted to, in order to hinder such regulation, and how other considerations (especially the concept of human rights) have opened the way to such regulation.
In this respect the study, after clarifying in the first two chapters the meaning, the limitations and the place in the practice of states of the principles of sovereignty and non-intervention, has concentrated on their influence on three main issues raised by internal conflicts, namely:
1. The definition of internal conflicts. In this sphere, the question of the criteria or thresholds of internal conflicts to which humanitarian law is to be applied and the question of which authority has the power to decide the existence of an internal conflict, are dealt with in the context of customary law, common Article 3 and Protocol II of 1977. It is asserted that the claims of sovereignty and non-intervention have been used extensively to restrict any real progress in this area.
2. The protection of the victims of internal wars. In this important area the study tries to trace the development of specific legal norms for the protection of the victims and to determine whether the concept of human rights has contributed in any way to better protection of those victims.
3. Compliance and implementation of humanitarian law in internal conflicts. In this context, it is established beyond any doubt that the claims of sovereignty and non-intervention have been used extensively, both in 1949 and also 1974-1977 to stop all attempts to institute measures for the control of application of humanitarian law, especially those measures which would involve third party supervision. However, it is asserted that human rights machinery may be used to fill this loophole as the UN practice shows.
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