International humanitarian law (IHL) strives to improve and protect human dignity during the most
tumultuous periods known to mankind. As such, every endeavour to strengthen and enhance the
functioning of this branch of law must be pursued and supported. The ICRC Study on Customary
International Humanitarian Law (CIHL) was precisely such an endeavour. This Study found that
very many IHL rules have been subsumed by CIHL, thus applying irrespective of treaty ratification,
and that the rules applicable in international armed conflicts were converging with those applicable
in non-international armed conflicts. However, this Study and its attendant literature have refrained
from returning to a theoretical reconsideration of the normative foundation of IHL and, by
extension, CIHL. The present dissertation aims to fill this theoretical lacuna and, in the process, to
re-establish natural law principles and, in particular, considerations of humanity, as the raison d'être
of and motivating factor for IHL. Accordingly, the dissertation pursues the natural law principle of
humanity through its practical and theoretical development, before investigating its possible
application through the Martens clause, norms of ius cogens and obligations erga omnes. Since the
objective is to elucidate the essential foundation of IHL to better comprehend its customary source,
the interconnectedness between IHL, CIHL and natural law principles, like humanity, is
emphasised. In the process, the dissertation also enters the debate regarding the necessary
methodological approach for CIHL ascertainment and postulates a normative, transcendental
approach in this regard. Subsequently, the ICRC Study on CIHL is evaluated through the natural
law paradigm established in the dissertation, which seemingly has not yet occurred in international
legal literature.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-10042011-110017 |
| Date | 04 October 2011 |
| Creators | Nell, Albert |
| Contributors | Prof SA de Freitas |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-10042011-110017/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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