International Humanitarian Law in the advisory opinions of the International Court of Justice: Combining utopic and apologetic perspectives O Direito Internacional Humanitário nos Pareceres consultivos da Corte Internacional de Justiça: Uma conjugação de perspectivas utópicas e apologéticas

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Brazilian Journal of International Law
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Pinto T.P.
Capella Giannattasio A.R.
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© 2021 Centro Universitario de Brasilia. All rights reserved.The 20th century is characterized by the growing institutionalization of International Law (IL) - either by the affirmation of international norms in Treaties, or by the creation and diffusion of international courts. Established in the 19th century, International Humanitarian Law (IHL) followed this double movement: from the second half of the 20th century onwards, IHL became a legal instrument established to regulate international and non-international armed conflicts and was invoked in decisions of the principal international judicial body - the International Court of Justice (ICJ). However, it is important to assess the limits of this dual institutionalization of IHL in the 20th century. Using a qualitative approach to primary (document analysis) and secondary (literature review) sources, this article examines how the ICJ mobilized IHL in advisory opinions in which this branch of IL was at the heart of the issues examined (Legality of Threat of Use or the Use of Nuclear Weapons and Legal Consequences of Building a Wall in the Occupied Palestinian Territory). In order to critically assess the institutionalization of IHL, the information gathered was analyzed according to the conceptual distinction apologia versus utopia formulated by Martti Koskenniemi. It was possible to identify that the ICJ uses IHL combining utopian and apologetic perspectives in its advisory opinions, raising an ambiguous position concerning the so-called progress achieved by the institutionalization of the IHL while implemented by the Court.
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