The obligation to respect and to ensure respect in all circumstances pursuant to Common Article 1 of the Four Geneva Conventions of August 1949 and Additional Protocols I and III: an Australian weapons law perspective

Massingham, Eve (2016). The obligation to respect and to ensure respect in all circumstances pursuant to Common Article 1 of the Four Geneva Conventions of August 1949 and Additional Protocols I and III: an Australian weapons law perspective PhD Thesis, School of Law, The University of Queensland. doi:10.14264/uql.2016.355

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Author Massingham, Eve
Thesis Title The obligation to respect and to ensure respect in all circumstances pursuant to Common Article 1 of the Four Geneva Conventions of August 1949 and Additional Protocols I and III: an Australian weapons law perspective
School, Centre or Institute School of Law
Institution The University of Queensland
DOI 10.14264/uql.2016.355
Publication date 2016-06-20
Thesis type PhD Thesis
Supervisor Jonathan Crowe
Anthony Cassimatis
Total pages 203
Total black and white pages 203
Language eng
Subjects 1801 Law
Formatted abstract
Article 1, common to the Four Geneva Conventions of August 12, 1949 and Article 1(1) of Additional Protocols I and III to the Geneva Conventions of 1977 and 2005 respectively, state that ‘[t]he High Contracting Parties undertake to respect and ensure respect’ for the Conventions and Protocols ‘in all circumstances’ (collectively Common Article 1). This thesis considers the nature and scope of the obligation found in Common Article 1. Common Article 1 has two components: the obligation to respect international humanitarian law (IHL); and the obligation to ensure respect for IHL. The obligation to respect IHL requires the good faith implementation of the provisions of IHL by the High Contracting Parties. The obligation to ensure respect for IHL is concerned with states actions in respect of violations, or potential violations of IHL, by parties to a conflict. That is, third party states must exercise due diligence in relation to violations or potential violations of IHL by parties to a conflict. The thesis supports the view that the scope of this obligation is one that is relative to the capacity and influence of a state and that it should be seen as the source of an opportunity for states to provide strong support for humanitarian outcomes.

The thesis considers how Australia has approached one aspect of IHL - namely weapons law - in recent history. It notes that Australia has both undermined Common Article 1 in its approach (cluster munitions and nuclear weapons prohibitions are used as examples) and ignored Common Article 1 in its approach (the Arms Trade Treaty and new weapons technologies are used as examples). The thesis proposes that Australia give greater consideration to Common Article 1 when approaching weapons law, so as not to breach its obligation under Common Article 1 and to be a nation with credibility and influence in this field. Australia must work to fully implement the provisions of IHL in good faith and, because it has significant capacity in terms of resources, where it has influence over other states and/or non-state actors it must use this influence in support of Common Article 1.
Keyword International humanitarian law
Respect and ensure respect
Australia
Weapons

Document type: Thesis
Collections: UQ Theses (RHD) - Official
UQ Theses (RHD) - Open Access
 
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Created: Thu, 09 Jun 2016, 13:37:21 EST by Eve Massingham on behalf of Learning and Research Services (UQ Library)