It has been argued that groups of fighters who “belong” to a party to an international armed conflict without fulfilling the requirements of Article 4(A)(2) of Geneva Convention III should be classified as combatants, rather than as civilians. This article questions the reasoning put forward in support of that view, by showing that the arguments may be partly circular, incomplete, and debatable.
This article examines the International Court of Justice’s methodology in cases where it interprets its own decisions under the procedure in Article 60 of the Statute. The Court is constrained by respect for the res judicata of the previous decision. When interpreting the decision the Court and its judges strive to find the intention behind a decision, and emphasise elements that include wording, context, and object and purpose. A comparison with how the Court interprets treaties, resolutions from the United Nations Security Council, and unilateral declarations by States show that the instruments have important different but that their interpretation nonetheless have some basic similarities. On this basis it may be possible to formulate general principles of interpretation in international law.
The People’s Republic of China (‘China’) has adopted legislation threatening to invade the Republic of China (‘Taiwan’) if the latter declares independence. Threats of force are prohibited by the UN Charter Article 2(4) and equivalent customary international law. This article proceeds along two apparently contradictory strands. On the one hand, the prohibition probably does not apply to non-State entities such as the Republic of China. One the other hand, the ICJ stated in the Nuclear Weapons opinion that ‘if the use of force itself in a given case is illegal […] the threat to use such force will likewise be illegal’. If the Republic of China declares independence it will become a State, making a PRC invasion illegal. Therefore, the PRC’s current threats should also be illegal. The best way to resolve this apparent paradox is to say that the ICJ’s ‘Nuclear Weapons principle’ must be nuanced.
Much has been written about “judicial dialogue” in international law. This article explores a related, but much less studied, concept: “dialogue” between judges and scholars. Through examples taken from the International Court of Justice, the article proposes a classification of such dialogue and argues that it plays an important role in the development of international law.