Suchergebnisse

Abstract
The International Court of Justice (ICJ) regularly invokes a two-element test for the identification of customary international law: state practice accompanied by opinio juris. Yet the Court's application of this test has appeared inconsistent. In some cases, an absence of evidence of opinio juris leads to a finding that an alleged rule of customary international law does not exist; yet in other cases, there is no clear evidence of opinio juris on the part of states participating in the practice, but the Court nevertheless concludes that the alleged customary rule exists. In other cases, the Court concludes that a customary rule exists apparently based on evidence of opinio juris alone. This article argues that these judgments do not undermine the ICJ's claim to be applying a two-element analysis but reveal something fundamental about how customary international law is identified – namely, that how the existence of state practice and opinio juris is evaluated may vary depending on the nature of the customary rule under investigation (for example, whether it is a permissive or prohibitive rule) and the context of underlying international law rules in which that alleged new customary international law rule is located.

AbstractThis article argues that if there is a jus cogens norm in the jus ad bellum, it must be the customary norm which prohibits non-consensual uses of force that are neither validly authorised under the UN Charter nor lawful exercises of self-defence. In doing so this article will clarify the method by which jus cogens norms should be identified, based on a correct understanding and application of what it means for a norm to be 'accepted and recognized as a norm from which no derogation is permitted'. It is argued that all existing jus cogens norms must be norms of customary law, and that the uncertainty regarding the scope of the jus cogens norm prohibiting force results from uncertainty as to the structure of the underlying customary and treaty law norms in the jus ad bellum.

Abstract
This article analyses the structural conditions within the jus ad bellum that affect whether and how that law changes. In particular, it examines how the diversity of the rules that form the law relating to the use of force affects the development of rules permitting the use of force to protect human rights. After noting some areas where it has been argued that aspects of the law relating to use of force have changed as a result of evolving state practice, it identifies a number of obstacles to accepting the argument that changes to customary international law can affect the law on the use of force in the UN Charter. It is argued that, unlike with self-defence, changes to customary international law would not automatically lead to changes in the Charter prohibition of the use of force. Since any rule permitting humanitarian intervention would create a new exception to the Charter prohibition of the use of force and to a norm of jus cogens, that change cannot occur on the basis of custom alone. Changes to interpretations of the UN Charter and to a jus cogens norm will be required, and such changes must occur in line with the rules regarding how such norms change. Finally, the article considers one concrete possibility for a change to the jus ad bellum that would allow humanitarian intervention without UN Security Council approval: approval of such a use of force by the UN General Assembly under the 'Uniting for Peace' Resolution of 1950. Leaving aside the political and practical challenges of achieving such change, the section explores the conceptual challenges that would need to be overcome.

Abstract
While the relationship between the jus in bello and international human rights law has been the subject of considerable debate, less attention has been paid to the relationship between the jus ad bellum and human rights. The United Nations Human Rights Committee's General Comment 36 on the right to life, adopted on 30 October 2018, brought these questions to the fore with the Committee's pronouncement that 'States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant'. The contributions in this Symposium assess three ways of viewing the relationship between the protection of human rights and resort to force. First, the suggestion that resort to force in violation of the jus ad bellum will amount to a violation of the right to life is explored. Second, some contributions examine different arguments as to whether international law permits, justifies or excuses resort to force to protect human rights, and indeed whether it can change to permit such. Third, one contribution examines whether the crime of aggression, as defined in the ICC Statute, covers resort to force to protect human rights.