Applying a Sovereign Agency Theory of the Law of Armed Conflict
Eric Talbot Jensen, 𝘈𝘱𝘱𝘭𝘺𝘪𝘯𝘨 𝘢 𝘚𝘰𝘷𝘦𝘳𝘦𝘪𝘨𝘯 𝘈𝘨𝘦𝘯𝘤𝘺 𝘛𝘩𝘦𝘰𝘳𝘺 𝘰𝘧 𝘵𝘩𝘦 𝘓𝘢𝘸 𝘰𝘧 𝘈𝘳𝘮𝘦𝘥 𝘊𝘰𝘯𝘧𝘭𝘪𝘤𝘵, 12 Cʜɪ. J. Iɴᴛ'ʟ L. 685 (2012).
The current bifurcated conflict classification paradigm for the applicability of the Law of Armed Conflict, or LOAC, has lost its usefulness. Initial regulation of State militaries was originally based on the principle that the armed forces of a State were acting as the sovereign agents of the State and were granted privileges and given duties based on that grant of agency. These privileges and duties became the bases for the formulation of the modern LOAC. During the 20th Century, the LOAC became bifurcated, with the complete LOAC applying only to armed conflicts between sovereigns and only minimal provisions of the law applying to armed conflicts that were not between sovereigns. This bifurcation has led to a lack of clarity for the sovereign’s agents in LOAC application and given States the ability to manipulate which law applies to their application of force through their agents. The applicability of the LOAC should no longer be based on the manipulable and unclear conflict classification paradigm, but should instead return to its foundations in the sovereign’s grant of agency. Thus, anytime a sovereign applies violent force through its armed forces, those armed forces should apply the full LOAC to their actions, regardless of the type or classification of the conflict.
12 Chi. J. Int'l L.
Chicago Journal International Law