Changing Jus Cogens

Changing Jus Cogens Through State Practice?
The Case of the Prohibition

of the Use of Force and its Exceptions
Oxford Handbooks Online

Changing Jus Cogens Through State Practice? The Case
of the Prohibition of the Use of Force and its
Exceptions
Alexander Orakhelashvili
The Oxford Handbook of the Use of Force in International Law
Edited by Marc Weller
Print Publication Date: Jan 2015 Subject: Law, International Law

Online Publication Date: Jun 2016 DOI: 10.1093/law/9780199673049.003.0008
Abstract and Keywords
This chapter examines how international law treats state practice on the actual or
claimed exceptions to and derogations from the peremptory prohibition of the use of
force. It looks at attempts to fragment or alter the content of Article 2(4) of the UN
Charter which prohibits the use of force, from the Cold War period to the post-Cold-War
period. The discussion begins by assessing the nature and relevance of state practice
before turning to the rules of jus cogens and the way in which they interact with state
practice. More specifically, the chapter analyses the question of whether the conflict
between state practice and jus cogens goes to derogation from, or modification of, jus
cogens norms. Finally, it considers the argument against the jus cogens status of the
prohibition of the use of force and the implications of the strict requirement of uniformity
inherent in jus cogens and its non-derogability.
Keywords: international law, state practice, derogation, peremptory prohibition, use of force, Article 2(4), UN
Charter, jus cogens
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Changing Jus Cogens Through State Practice? The Case of the Prohibition
I. Introduction
AFTER the adoption in 1945 of the UN Charter and its comprehensive prohibition of the use
of force under Article 2(4), multiple attempts took place in state practice to fragment or
alter its content. In the Cold War period, there were repeated state claims as to the
various exceptions from this prohibition, such as in relation to protecting nationals
abroad, regarding humanitarian intervention, and regarding various extended versions of
self-defence, whether termed anticipatory or interceptive. The post-Cold War period
witnessed further activation of the humanitarian intervention argument, mainly with the
example of the use of (p. 158) force against the Federal Republic of Yugoslavia (FRY) in
1999, and its modified version termed ‘Responsibility to Protect’ and attempts to further
extend anticipatory self-defence to encompass broader uses of force that would at times
have pre-emptive character (Iraq 2003) and at times essentially constitute an armed
reprisal (Afghanistan 2001).
All these claims effectively asserted something that the terms of Articles 2(4) and 51 of
the UN Charter do not admit at face value. In terms of international lawmaking, these
‘emerging exceptions’ are essentially attempts to consolidate the positions that are either
derogatory from or amendatory of the legal position under the Charter and corresponding
customary international law.
The reasoning thus runs into two separate, though conceptually similar, normative
processes. For, the claims in practice purported the creation of a new customary rule that
also aims to reinterpret or effectively amend the terms of the Charter. It seems to be
generally agreed that the amendment of a treaty through custom should satisfy the
requirements of subsequent practice under Article 31(1)(b) of the 1969 Vienna
Convention on the Law of Treaties (VCLT).1 The threshold requirements are then very
high. The practice in question must positively command the agreement of all state parties
to the effect of clarification of the content, or modification, of treaty obligations.2 In
relation to customary law proper, the requirement of a regular, or even arguably special,
opinio juris is crucial. More so, as in the area of jus cogens any normative change should
command, if the requirements under Article 53 of the same Convention are considered,
the acceptance of the international community as a whole.
Conceptually, the ways in which state practice interacts with the rules of jus cogens can
involve either a wholesale abolition or replacement of the relevant peremptory norm; a
consolidation of a new exception to an existing peremptory norm; or validation of the
concrete situation produced through the breach of that peremptory norm. Article 53
VCLT outlaws derogations from jus cogens, but allows for its modification through a
newer peremptory rule. When state practice prima facie conflicting with jus cogens is
developed, the question is whether it goes to derogation from, or modification of, jus
cogens norms.
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The complexity of this process requires a similarly complex analysis. We should first
understand what state practice is about and what difference it makes. Then we should
focus on the nature of jus cogens, including its state practice elements. Lastly, it has to be
examined how state practice on the actual or claimed exceptions to and derogations from
the peremptory prohibition of the use of force is received in international law.
II. The Nature and Relevance of State

(p. 159)
Practice
State practice is frequently resorted to by writers and government officials, as is often
tempting and opportune, to justify multiple lines of state conduct and policy by events
from the past. Officials will obviously refer to any state practice they consider to be
useful, which raises the question how far their elbow room can be maintained without
compromising the predictable and reliable framework of international lawmaking. For the
sake of methodological clarity, it should be emphasized that particular activities do not
amount to state practice merely because they are performed by states. Multiple state
actions and omissions—whether for reasons of ceremony, comity, courtesy, or discretion—
are unrelated to international legal rights and obligations. For what is left, no action
performed or position uttered by a state takes place in a legal vacuum. All of it instead
relates to the complex framework of the sources of international law, and purports to
impact the existing allocation of rights and obligations, with the intention to preserve or
alter it.
Consequently, ‘state practice’ is not self-fulfilling or self-explanatory. Its relevance derives

from a source backed by a constitutional authority of lawmaking, which then determines
what kind of state practice matters and on what conditions. We should consequently be
interested only in such state practice that fulfils the requirements under Article 38(1)(b)
of the International Court’s Statute—general practice of states accepted as law through
their concordance of wills (accompanied by opinio juris). In the consensual framework of
international law, state practice has to consist in an act, offer, claim, protest, or other
expression of attitude displayed internationally. Manifestation of a view is required, for no
communication is possible without exchanging views. Statements and claims are just as
indicative of state practice as are actual material facts and actions.3
The whole reason why state practice is relevant is to give a material substratum to the
process of the identification of customary rules. Those rules must relate to something
materially tangible that states see, experience, perform, or react to. They cannot sensibly
be derived from policy aspirations and perceptions, or ideological preferences that
officials may unilaterally entertain, but have instead to be grounded in the process of
mutual communication of states that ultimately leads to an unwritten agreement. To
illustrate, the International Court in the Anglo-Norwegian Fisheries case and in the
Minquiers and Echrehos case had to examine the validity of claims as to the ownership of
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territorial and maritime spaces, respectively between the UK and Norway and the
(p. 160) UK and France.4 In both cases the Court extensively examined the practice of
litigating states in relation to disputed areas and identified critical dates—well before the
commencement of litigation—after which their claims and acts would no longer be taken
into consideration. The reason is that states should not raise and pursue self-serving
opportunistic claims, but only those relating to facts and positions with the potential to
lead to an agreement through practice—those displayed within the material time period.
Such approach objectivizes the whole issue, preventing it from degenerating into the
chaotic process where any statement by one litigant state could be set off against any
statement by another litigant state, leaving no objectively ascertainable criteria as to
which claim is better founded in law. Seen this way, state practice constrains the freedom
of auto-interpretation by states of their legal rights and obligations, reduces the
relevance and validity of claims to a narrower, historically ascertainable set of events, and
filters out the claims that do not correspond to its requirements.
As for the particular elements of state practice as part of customary law, it has to be
general, settled, consistent, and durable. As the International Court observed in the
Nicaragua case, addressing the customary law status of the rules on the use of force, the
application and observance of the rules in practice does not have to be perfect. Instead,
‘the conduct of States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indications of the recognition of a new rule.’5 This
emphasizes the standing of the state that uses force, and that of other states that express
positions as to the legality of such use of force. The consensual positivist element of
custom-generation is thereby reinforced, to the effect that state practice that does not
point to the formation of an agreement or consensus as to the newer rule has to be
disregarded.
General customary law is produced the way that it applies to all states, some of which
consolidate it by active practice and contribution, and others by acquiescence motivated
by interest or indifference. Even if not all states’ affirmative consent is, strictly speaking,
a requirement, the practice in question should nevertheless be displayed in the way that
brings it to the attention of the entire international society. Not just that every state must
be aware that certain things happen in practice but also that those things are done by the
relevant states with the intention of impacting the existing legal rights and obligations.
From here, other states can figure out their own position, either agreeing to, or
preventing the emergence of, a new customary rule.
As an initial step, the position of the state that wishes to attain normative change through
customary law has to be coherent and consistent so that other states can (p. 161) identify
the parameters of the offer made. As the International Court observed in Nicaragua:
If a State acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself, then
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whether or not the State’s conduct is in fact justifiable on that basis, the significance of
that attitude is to confirm rather than to weaken the rule.6
A sufficient number of states must therefore be involved. The International Criminal

Tribunal for the former Yugoslavia (ICTY) confronted in the Brđanin case the argument
that the US government’s position regarding the threshold of pain as an element of the
definition of torture impacted the customary law definition of torture. However, ‘no
matter how powerful or influential a country is, its practice [did] not automatically
become customary international law.’7 Even if multiple states back the potential
customary rule, the chances of its emergence will be slim if the international society is
divided on the issue. As the International Court pointed out in the Nuclear Weapons
advisory opinion, even if ‘the desire of a very large section of the international
community’ was there, ‘the emergence, as lex lata, of a customary rule specifically
prohibiting the use of nuclear weapons as such is hampered by the continuing tensions
between the nascent opinio juris on the one hand, and the still strong adherence to the
practice of deterrence on the other.’8
When state practice is identified to support an entitlement or claim, it should relate

precisely to the subject matter of that claim or entitlement; as opposed to conceptually
endorsing the relevant type of action. Furthermore, all relevant state practice relating to
the issues at hand should be addressed. Without such complete focus, state practice can
be hijacked by the natural law agenda. Some amount of state practice identified in the
relevant case, but falling short of the reach and intensity to satisfy the requirements of
generality and durability, could be used to project customary law on the relevant subject
matter to give expression to whatever the relevant decision-maker considers right, just,
reasonable, sensible, or useful. This is a problematic attitude, replicating Pufendorf’s
naturalist approach that state practice is there to reflect overarching principles derived
from natural law and matters only to the extent it can be used to serve that task.9
Two cases where the Court positively identified the existence of customary law on the
basis of state practice are the Arrest Warrant case and the Germany v. Italy case, dealing
with the immunity of states and their officials before foreign courts. In (p. 162) both cases
the Court posited an essentially natural law premise as to the necessity, usefulness, or
reasonableness of a particular type of immunity. It then identified a rather limited set of
state practice through which it projected the customary law on immunities that meets the
requirements of those natural law premises.
In the Arrest Warrant case, the Court first linked the issue of the immunity of incumbent
foreign ministers to the general need of states to be duly represented in foreign relations.
Proceeding from this essentially naturalist premise, the Court identified the ‘firmly
established’ rule on immunity from two national court decisions. The first was the
Pinochet decision of the UK House of Lords, which related to the former head of state not
an incumbent foreign minister.10 The second case was the Gaddafi decision of the French
Cour de Cassation,11 which related to the immunity of a serving head of state, whose
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immunity was actually held to be subjected to some exceptions even if those were not
dealt with then and there.12
In Germany v. Italy,13 the Court initially linked state immunity to the principle of
sovereign equality of states under Article 2(1) of the UN Charter, even though there is no
indispensable connection between the two.14 Based on this natural law premise, the
Court referred to the limited body of evidence and prioritized such state practice, mainly
national court decisions, as support for its conclusions, over other elements of state
practice that contradicted its approach.15 When confronted with the reality that most of
the relevant national statutes deny immunity for territorial torts, either generally or in
conjunction with the acts of armed forces, the Court simply pled unawareness that those
statutory provisions had been applied by national courts to that effect; and then recast
the issue of tort immunity into that of armed forces immunity.16
In both of the aforementioned cases the majority of the Court seems to have
(p. 163)
engaged in political opportunism, and the existence of customary rule was imagined
where in fact there was none. The legal position was, and remains, that there is no
positive customary law on state immunity, because it lacks a sufficient and consistent
substratum in state practice.17
Natural law reasoning creates a problem that is exacerbated by the fact that one’s
understanding of state practice on occasion depends on one’s political orientation. For
instance, the New Haven policy-oriented school operates with the notion of the process of
authoritative policy decisions to further the overarching policy goal of ‘human dignity’,
thus validating particular decisions, irrespective whether they comply with legal rules.18
What follows from this is that the official or the legal adviser serving a particular
government that aspires to be the guardian of ‘human dignity’ can advance a justification
for any action that suits its political goals. The ‘policy decision process’ certainly refers to
past decisions, and therefore it is to some extent reflective of state practice. But, it
purports to recast that process, the way that state practice is made relevant, not in terms
of whether it corresponds to the requirements of Article 38 of the Statute of the
International Court, but in terms of whether it serves the political goals of those who
claim to be guardians of ‘human dignity’.
The New Haven approach is more widespread than meets the eye among writers,
officials, and advisers. One can be an undeclared McDougalite and try to ‘translate’, to
the benefit of the audience, one’s preferred policy decision process into state practice
language. Practice fitting within a particular political agenda or ideological perception
would then appear to matter more than practice falling outside it.
The next requirement is that state practice must bear on the subject matter that is
actually regulated by international law, or is purported to be brought within its realm.
State practice, as part of domestic law, would not matter as such. For example, national
legislation on state immunity excludes the consideration of international law from the
task of national courts and thus diminishes their potential to contribute to state practice
internationally.19 The Special Tribunal for Lebanon interlocutory decision on the
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applicable law specifies, pursuant to Anzilotti’s reasoning, that the mere existence of
concordant laws does not prove the existence of a customary rule, ‘for it may simply
result from an identical view that States freely take and can change at any moment’. To
illustrate:
the fact that all States of the world punish murder through their legislation does not
entail that murder has become an international crime. To turn into an international crime,
a (p. 164) domestic offence needs to be regarded by the world community as an attack on
universal values (such as peace or human rights) or on values held to be of paramount
importance in that community; in addition, it is necessary that States and
intergovernmental organisations, through their acts and pronouncements, sanction this
attitude by clearly expressing the view that the world community considers the offence at
issue as amounting to an international crime.20
The ICTY addressed in Furundžija the domestic legislation of a number of states on rape
and similarly concluded that it did not matter in identifying the customary law of rape.
What mattered is practice that can evidence the correlation of views and positions of
states internationally.21
A further requirement is that the process of normative change in the area of custom-
generation should not contradict the sources and frameworks of law that are by definition
beyond the reach of that process of custom-generation. State practice contrary to
multilateral treaty obligations is unlikely to create customary law, because it will be
unopposable in a large number of states. In theory, it could create a limited custom as
between non-signatory states. Nevertheless, chances of consolidation are slim. Practice
falling short of the Article 38 generality requirement might then require, pursuant to the
International Court’s approach in the Asylum case, a greater degree of consensus, in the
sense that it must be positively established that the customary rule in question has
become binding specifically in relation to the relevant state, through constant and
uniform usage.22 For example, Article 51 of the 1977 Additional Protocol I to the 1949
Geneva Conventions unconditionally prohibits reprisals against civilians. While outside
the scope of the Protocol, customary law could still theoretically allow resorting to
reprisals against civilians in some circumstances. However, the burden is too heavy on
those who attempt to prove this position. All parties to Additional Protocol I being
excluded (even in their relations with non-parties),23 it is almost impossible to find
evidence that general, or special, customary law could exist in relation to non-parties in
the way that allows reprisals in defiance of Additional Protocol I.
On balance, some state practice matters and some does not. The complex factors
examined previously testify that state practice as part of customary international law may
not always be there when a particular legal argument projects or desires it.
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III. The Jus Cogens Status of the

(p. 165)
Prohibition of the Use of Force

Even though there may be some divergences of detail, UN Charter law and customary
law regarding the use of force are identical in outlawing all uses of force against states
apart from a response to an armed attack under Article 51 of the Charter. It is this legal
position, reflecting Articles 2(4) and 51 of the Charter, that commands the status of jus
cogens. The International Court affirmed the peremptory status of the prohibition of the
use of force in Nicaragua, mainly by relying on UN General Assembly resolutions.24
Although there are repeated doctrinal attempts to deny this,25 a careful reading of
Nicaragua shows that the Court pointed to the qualification by the International Law
Commission (ILC) of the relevant norm as peremptory, and inferred from this its
customary status. There is no authority to contest this position. There are remarks by
writers that in practice states do not frequently reaffirm that the prohibition of the use of
force is part of jus cogens.26 Looking at individual states could produce the impression
that only a minority of states have expressly accepted this position. This approach further
projects a double burden of proof in relation to the acceptance of the prohibition of the
use of force as a customary rule and then as a peremptory norm. It seems, however, that
the super-imposition of such double requirement goes substantially beyond what the legal
framework requires.
Article 53 VCLT is the consensual positivist recognition of the relevance of jus cogens.
Article 53 does not subsume jus cogens within, nor exclude it from the ambit of, any
particular source of law listed in Article 38 of the Statute of the International Court of
Justice. The key requirement under Article 53 is that of acceptance and recognition by
the international community as a whole. What we need to search for is the ways in which
the community as a whole speaks. This leads to the evidentiary relevance of multilateral
treaties and UN General Assembly resolutions. Although none of these can independently
generate—as opposed to reflect—a peremptory norm, they serve as evidence of the
international community’s attitude as to the relevant norm’s content and status. If need
be, international courts can repeatedly (p. 166) apply the requirements of custom-
generation, namely state practice and opinio juris, the way that explains the emergence
of jus cogens rules. Whether this leads to the emergence of a special opinio juris is a
theoretical question, for international courts and tribunals have placed this whole process
within the context of requirements of Article 38, much as it is obvious that the elements
of state practice they use differ from context to context.27 Article 38(1)(b) of the Court’s
Statute does not limit the acceptable headings of practice. Treaty practice and collective
multilateral practice can be just as good as practice performed by states individually. The
overall positivist balance is thus observed: the more widespread the support expressed
for the rule through the channels of the community will, the more obvious the evidence of
opinio juris.
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Against this background, viewing the peremptory status of the prohibition of the use of
force—or indeed of any jus cogens norm—as dependent on occasional affirmation by
individual states constitutes a methodological error. It matters what the community of
states pronounces through the community channels, not how often individual states
additionally utter similar pronouncements or refrain from such.
IV. State Practice and Exceptions to the

Peremptory Prohibition of the Use of Force
The task now is to identify whether the prohibition of the use of force can be changed
against the background of the requirements of Article 53 VCLT. Such change will
inevitably require general consistent practice aimed at such legal change specifically, and
it is subject to a heavy burden of proof for those who wish to prove it. The impact of jus
cogens on derogatory state practice was most recently witnessed in the International
Court’s advisory opinion in relation to the Unilateral Declaration of Independence in
Kosovo, where it was reaffirmed that the involvement of a breach of jus cogens can
invalidate subsequent acts and actions whether performed by states or non-state actors,
notably unilateral declarations of independence.28 If, (p. 167) therefore, a specific
concrete action or situation can be tainted with invalidity, it is an even more pressing
outcome that normative attempts to secure a change in the applicable law that, should
they succeed, they will operate on a continuous basis will even more obviously command
such consequence. In the end, both conceptually and normatively, and if the overall
impact of the overarching concept of derogation under Article 53 VCLT is considered, the
issue of the validity of individual breaches of jus cogens will inevitably run into that of an
attempted normative change, and vice versa.
State consent to foreign military presence and operations is one area that tests the
resilience of the peremptory jus ad bellum to derogation attempts. Intervention by
consent is lawful, provided that it rests on a clearly expressed request, authored by the
government of the territorial state, to be interpreted strictly in terms of duration, space,
and type of pertinent military activities.29 If exceeding such strictly construed grant, the
use of force will qualify as aggression. In practice, the claims that consent of the
government of the target state has been obtained have not always been found to be
authentic.30
Unlike ad hoc consent, a prospective consent to authorize the use of force by one state
against another, irrespective or against its will at the moment when force is being used,
constitutes a derogation from the prohibition of the use of force. Such consent embodied
in a treaty or in a unilateral act would be void for its conflict with jus cogens on the basis
of Article 53 VCLT and general international law.31 The use of force in question will still
be governed by, and be unlawful under, the general international law of the use of force.
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One pattern of forcible intervention that raises the issue of the validity and authenticity of
consent to a foreign intervention relates to interventions to restore democratic
government and constitutional order within the target state. In relation to pro-democratic
intervention, the argument in doctrine and practice addresses the significance of the
consent to intervention and who is more eligible to give it—a de facto illegitimate
government, a lawful government in exile, or an insurgent entity aspiring to capture the
entire territory of the state.32 Once it is ascertained (p. 168) in casu that consent was
given by the entity entitled to give it, which according to prevailing practice must be the
constitutionally legitimate government, and in relation to that one specific case, it is
certain that the use of force in question is not one directed against the sovereign state.
The issue of jus cogens illegality will not arise, and correspondingly there will be no
attempt of derogation. Otherwise, as was the case in Grenada in 1983 or Panama in 1989,
the issue of jus cogens invalidity would arise if the relevant state practice will witness an
inclination to validate the fruits of that use of force, or use it as a test case intended to
consolidate a normative change in that direction. In this latter respect, the underlying
claims will at some stage—and implausibly—run into attempts to reinterpret Article 2(4)
of the UN Charter in the way that allows uses of force short of encroaching upon the
territorial integrity and political independence of the state,33 and into the invalidating
process pursuant to the doctrine of jus cogens.
As for claims to use force on the basis of generally applicable law, as opposed to the will
and consent of the target state, it is always important to understand in the context of
which legal framework the pertinent state practice gets displayed. Pre-1945 state
practice was displayed with different constitutional settings in mind. Before 1945, there
could be no feasible argument regarding the exceptions from the prohibition of the use of
force, because there was no such prohibition in the first place. To justify the use of force,
the 1841 statement by US Secretary of State Webster regarding the Caroline incident
relied on the appreciation of events as instant, overwhelming, leaving no time for choice
and no moment for deliberation. Caroline is essentially an instance of practice displayed
against the background of the natural law-based right to self-preservation, even though it
refers to the notion of self-defence which ‘crept into the correspondence’.34 Modern law
of the use of force would not admit such claims, because the only state practice that
matters is the one that its authors were in a position to apply their minds to, which is the
positive law under the UN Charter and corresponding customary rules. This positive law
as dealt with in Nicaragua constitutes the starting point against which any entitlement to
use force must be described, characterized, and qualified, if the claim behind it is ever to
become valid.
Any state using force is aware of the prohibitions and exceptions under the Charter. If the
state acts with a belief that those arrangements do not apply to its (p. 169) use of force,
then this belief can taint the validity of its action as a first step in the process of state
practice. If, however, a state uses force claiming that its action is in accordance with the
UN Charter provisions even if not prima facie covered thereby, that state has the burden
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of proof to demonstrate how exactly that is the case. Other states witnessing such action
and reacting to it must also be deemed to be aware that their response and reaction of
whatever description will not take place in a legal vacuum, but against the background of
the existing sources of law.
In the first place, state practice claiming an extra-Charter exception from the prohibition
of the use of force has to involve a coherent manifestation of a pertinent view; otherwise
it cannot produce legal positions under which state actions are lawful or unlawful. The
context of the day, especially material factors on the ground (also which audience one is
speaking to and whether there is international organ with jurisdiction that could
ultimately hear the case), will often influence policymakers and legal advisers in choosing
the plausible justification: it will tempt advancing some justifications and deterring
others; it will influence the alteration of stated motives and claims while force is being
used. There have been several such instances, as was the case with the US in Dominican
Republic in 1965 (referring first to protection of nationals and then to the spreading of
communist threat) and Grenada in 1983 (referring first to the invitation from the
government and then to the approval by the Organisation of Eastern Caribbean States
(OECS) and the need to combat the regional threat consisting in the spread of
armaments). The changing allusion to multiple justifications casts doubt on the validity of
all related claims, because it undermines the continuity of practice.
What is the real motivation of a state claiming exception also matters: to genuinely
transform a legal position by making, through practice, a respective offer to other states,
or just to make a claim that appears plausible to the relevant audience35 and then hope to
get away with it because other states may find it politically unwise to object or be
indifferent to doing so, or because the case would not be covered by the regular
jurisdiction of international tribunals to adjudge the merit of the relevant claims? In this
latter case the official or adviser will also understand that the claim or action in question
will not be plausibly contributing to the process of creation or alteration of legal rules.
Whichever of these two premises one acts upon in particular situations, a sound official or
adviser will not fail to apply their mind to the possibilities or consequences arising from
either of them.
As for the specific claims relating to extra-Charter exceptions, claims to protect nationals
pertinently illustrate the essence of this process. As Bowett explained, before 1945 states
used to assume the right to forcibly protect nationals abroad, but after the introduction of
a comprehensive prohibition in 1945, these claims can only (p. 170) be validated if
covered by the right to self-defence as the only exception from that prohibition.36 What
authors of such claims have to substantiate is how the state that forcibly protects its
nationals abroad can be seen as a victim of an armed attack under Article 51 of the
Charter. This is not without relevance to the fact that most if not all claims in relation to
incidents of forcible rescuing of nationals against the will of the territorial state have
been subjected to condemnation as unlawful.37
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In relation to self-defence particularly, states have claimed anticipatory self-defence that a
state can resort to before it becomes the victim of an armed attack. The incident in point
is Israel’s attack on the Osirak nuclear reactor in Iraq in 1981 that the Security Council
condemned in Resolution 487 (1981). The Council’s position at that point essentially
signified the opposition of the community of states to acts such as those, with the effect
that state practice leading to the relevant change in the Charter-based legal framework
would be difficult to consolidate.38
The war against Iraq in 2003 witnessed a further articulation of a claim in state practice
that the use of force was permitted in a pre-emptive manner.39 The initial claim was
derived from the 2002 US National Security Strategy. In the wake of adopting Resolution
1441 (2002), the US claimed the right to use force pre-emptively against threats caused
by Iraq, even without the authorization of the Security Council, indeed conceding at that
point that there was no such authorization.40 Later on, however, the US ceased claiming
the entitlement to defend itself pre-emptively and instead advanced the claim that
Resolution 1441 authorized the use of force, contrary to its previous position.41
In relation to the US-led use of force in Afghanistan in 2001, no plausible evidence has
been presented to demonstrate that it was undertaken in response to an armed attack
under Article 51 of the UN Charter.42 This use of force resembled more (p. 171) a reprisal
than self-defence.43 Armed reprisals are prohibited.44 It is in the nature of reprisals to be
retaliatory and punitive, which is inimical to the nature of self-defence under Article 51.
Although there are doctrinal attempts to subsume armed reprisals within self-defence, it
is acknowledged that reprisals are essentially aimed at retaliating and forestalling
recurrence, mostly well after the initial attack has taken place, as opposed to responding
to an ongoing armed attack.45 The aims of the two kinds of responses are thus
qualitatively different, which means that Article 51 cannot encompass reprisals. If Article
51 allowed retaliatory response, no need for the separate reprisal talking would ever
arise. It is much easier for states to point to obvious justifications under the Charter than
look for dubious grounds outside it that will place them under an increasing burden of
proof in terms of reclassification and justification of the relevant forcible acts.
There are claims that the silence of many states could have validated the use of force in
Afghanistan. As Quigley explains, the failure of states to demand compliance with
applicable rules does not change the substance of these rules.46 As the Permanent Court
of International Justice clarified in the Danube case, toleration of practice is not the same
as acceptance of its legality.47 Toleration occurs because nothing can be physically done
about the particular situation, but this is short of acceptance, which represents the
confirmation of its legality. Such legal acceptance must be—and was not—shown with the
relevant evidence.
Relatively recent claims relate to the expansion, through state practice, of the entitlement
to use force in self-defence when the initial attack comes from a non-state actor as
opposed to a state. As a background, Article 51 mandates the use of force in self-defence
only where it responds to an armed attack that has been perpetrated by one state against
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another. The International Court has repeatedly pronounced accordingly.48 The doctrinal
reaction to the Court’s clear and consistent position has been to overlook the content of
the Court’s pronouncements and suggest that the Court was vague, or to describe the
Court’s findings as inadequate by not justifying (p. 172) action that states might take
against terrorist networks around the globe.49 But both categories of criticism fail,
because the Court was straightforwardly and consistently clear on the principles it
upheld, and there is no international authority postulating the law of self-defence in a
different manner.
Dinstein points to two examples from practice in favour of self-defence encompassing

attacks by non-state actors. The first example relates to Security Council Resolutions 405
and 419 (1977) regarding aggression against Benin without mentioning the role of any
state. The second example relates to the 2005 African Union Non-Aggression Pact
referring to acts of aggression by non-state actors.50 As for the first example regarding
Benin, the Security Council deliberations demonstrated that the mercenaries involved in
the attack launched through an unauthorized landing at Cotonou airport had significant
connections to France and were in fact led by a French colonel. Benin submitted ‘that
high-level French officials in Cotonou were aware of the aggression long before its
execution and that two French agents in Cotonou had participated in its actual
preparation and execution.’ France publicly distanced itself from those mercenaries and
joined their condemnation.51 For obvious reasons, these two resolutions would never have
been adopted had they referred to the French role expressly. As for the second example,
the 2005 Abuja Pact contrasts starkly with the 1974 Definition of Aggression under
General Assembly Resolution 3314, which states that ‘aggression is the use of armed
force by a State against the sovereignty, territorial integrity or political independence of
another State.’ The International Court has confirmed that this resolution embodies
customary law.52 The position under the Abuja Pact is plainly insufficient to modify the
general law of the use of force and could at most constitute an African lex specialis
(should the provisions of the Pact, especially Art 1(c), be interpreted to authorize uses of
force against the state without its consent). Such outcome cannot be sustained, however,
given that the general jus ad bellum is peremptory. There can, quite simply, be no two
diverging streams of jus ad bellum. Nor was such admitted by the International Court in
the DRC/Uganda decision that relates precisely to the African context.
This position came under increasing challenge after the terrorist attacks against the US
on 11 September 2001, especially with the adoption of Security Council (p. 173)
Resolutions 1368 (2001) and 1373 (2001) which focus on counterterrorist measures and
mention the right to self-defence.53 However, nothing in these resolutions reveals that
non-state actors can on their own be the source of an ‘armed attack’. On closer
inspection, the two resolutions have recognized the inherent right to self-defence under
the Charter and reaffirmed the responsibility of states and non-state actors for terrorist
acts. This has been emphasized, however, by two separate principles, and the fact that
Page 13 of 21

they were mentioned together does not establish a conceptual or normative link between
them.
In the Wall case, Judge Kooijmans offered a rather light treatment of this question,
arguing that the Security Council resolutions ‘recognize the inherent right of individual
or collective self-defence without making any reference to an armed attack by a State’,
which therefore amounted to a ‘completely new element’ in the legal picture. Judge
Kooijmans went as far as arguing that ‘This new element is not excluded by the terms of
Article 51 since this conditions the exercise of the inherent right of self-defence on a
previous armed attack without saying that this armed attack must come from another
State even if this has been the generally accepted interpretation for more than 50
years’,54 and thus construed these resolutions as effecting an instant or momentous
alteration of the well-established legal position, even as those resolutions do not by their
text and wording reveal a result as far-reaching as that. There was no clear indication
how the desired legal position had turned into an actual one through the sources of
international law. Kooijmans’ argument of instantaneous change could be conceivable
under naturalist reasoning of various descriptions but that has, quite simply, no place in
the legal system that depends on the consent and agreement of states to be clearly
demonstrated in relation to each and every claimed rule.
Lastly, claims as to humanitarian intervention should be addressed. Despite the moral and
political attractiveness of this idea in various governmental and academic circles, no legal
entitlement to humanitarian intervention has ever emerged in state practice. In 1986, the
British Foreign Policy statement emphasized that state practice behind this ‘right’ was
uncertain and the motives behind interventions were not always laudable. It was added,
in policy terms, that the case against allowing humanitarian intervention was: ‘that its
doubtful benefits would be heavily outweighed by its costs in terms of respect for
international law.’55
When in 1999 North Atlantic Treaty Organization (NATO) states used force
(p. 174)
against the FRY to protect Kosovo Albanians from governmental oppression, the response
of the community of states was plainly negative. This use of force was instantly
condemned by India, China, and a group of Latin American states as unlawful.56 Later in
the same year, the statement of the Non-Allied Movement, backed by 132 states,
‘reject[ed] the so-called “right” of humanitarian intervention, which has no legal basis in
the UN Charter or in the general principles of international law.’57 Nor has the failure of
the Security Council to condemn this use of force altered the legal landscape, for as the
International Court has specified, the failure by an international organ to adopt a
particular proposal does not equate to its support for the opposite proposal.58
The notion of the ‘Responsibility to Protect’ relates to protecting vulnerable populations

from governments that expose them to war crimes, genocide, or crimes against humanity,
or governments that refrain from protecting them from such atrocities. This concept has
not been framed to purport to validate forcible interventions outside the context of
Chapter VII of the UN Charter.59 In any case, the unilateral uses of force pursuant to the
Page 14 of 21

‘Responsibility to Protect’ doctrine would not be different from the previously examined
humanitarian intervention claims in any conceptual, generic, or normative respect, and
their merit would fall to be assessed accordingly.
A unifying feature of nearly all claims to the use of force on extra-Charter grounds is that
they rely on the naturalist articulation of values and their commonsense understanding,
in the sense that it is necessary and useful to act to protect oppressed people or to
prevent terrorists or rogue regimes from using force first. This naturalist thinking
inevitably claims that one’s own political morality is universal and that which is necessary
must be law too. This way, it has little in common with the positivist reasoning regarding
the sources of law.
Claims in favour of the extra-Charter exceptions have always been incoherent to

constitute valid state practice for the purposes of custom-generation, and fallen far short
of commanding the support of states to produce an amending peremptory norm under
Article 53 VCLT. All this practice has either been fragmented and not general; or
inconsistent in relation to the same state, same incident, or as between (p. 175) multiple
states; or it has consolidated within a group of states but been rebuffed by the rest of the
community of states. The whole practice in relation to anticipatory self-defence, pre-
emption, humanitarian intervention, or self-defence against non-state actors has
attempted to gain higher ground by professing to follow the UN Charter framework of jus
ad bellum, and is therefore subsumable within the previous dictum from Nicaragua that
unilateral claims reinterpreting the established legal framework are generally
counterproductive.
V. Conclusion
The previous analysis has demonstrated that whenever the state practice argument is
raised, it is a point at which to start inquiry, not to draw conclusions. The framework of
jus ad bellum both under customary law and the UN Charter has proved to be rigorous
and robust enough to withstand the pressures for momentous and situational change.
At the end of the day the argument against the jus cogens status of the prohibition of the
use of force is unlikely to produce effect. The censuring power that accrues under general
international law to the jus cogens prohibition of the use of force does not stand alone. Its
content is shadowed by the cluster of parallel rules under the UN Charter. The jus cogens
prohibition, however, retains its independent relevance to prevent the consolidation of lex
specialis that could develop through state practice as between the limited number of
states or in relation to individual states or incidents, exempting them from the general
requirements of jus ad bellum on the basis of general acquiescence when states are
deterred from voicing opposition. Under this scenario, the overall standards of jus ad
bellum under the UN Charter and the relevant customary law would continue intact, but
Page 15 of 21

they would be fragmented by the diverging sets of lex specialis. The strict requirement of
uniformity inherent in jus cogens and its non-derogability is practically the only tool at the
disposal of the legal system to prevent such position from materializing.
Notes:
(1) Yoram Dinstein, ‘The Interaction between Customary International Law and
Treaties’ (2006) 322 Recueil des cours de l’Académie de droit international 259, chs IX, X,
and XI, and esp 414–15.
(2) cf Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public

International Law (Oxford: Oxford University Press, 2008), ch 10.
(3) The ‘lawmaking power of facts’ will not be critiqued here; see instead Orakhelashvili,
The Interpretation of Acts and Rules in Public International Law, ch 5.
(4) Anglo-Norwegian Fisheries (UK v. Norway), ICJ Rep 1951, 116; The Minquiers and
Echrehos Case (France v. UK), ICJ Rep 1953, 47.
(5) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US),
Merits, Judgment of 27 June 1986, ICJ Rep 1986, 14, para 186.
(6) ICJ Rep 1986, 98.
(7) Brđanin, ICTY Appeal Chamber, IT-99-36-A, 3 Apr 2007, para 247.
(8) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ
Rep 1996, 226, 255.
(9) cf Samuel von Pufendorf, ‘The Law of Nature and Nations’ in James Brown Scott (ed),
Classics of International Law (Oxford: Clarendon Press, 1934), 228; see further Alexander
Orakhelashvili, ‘The Origins of Consensual Positivism—Pufendorf, Wolff, and Vattel’ in
Orakhelashvili (ed), Research Handbook on Theory and History of International Law
(Cheltenham: Edward Elgar, 2011), 93.
(10) Pinochet [1999] 2 All ER 97 (HL).
(11) Gaddafi, 125 ILR 508 (Cour de Cassation).
(12) Arrest Warrant of 11 April 2000, Merits, General List No 121, ICJ Rep 2002, 14 Feb
2002, paras 51–4.
(13) Jurisdictional Immunities of the State (Germany v. Italy), ICJ, Judgment of 3 Feb
2012, General List No 143.
Page 16 of 21

(14) In Libya/Malta, the Court denied that the principle of sovereign equality required
equidistance in delimiting the continental shelf area between the two states. Libya/Malta,
ICJ Rep 1985, 43. Also, ‘there is no obvious impairment of the rights of equality, or
independence, or dignity of a State if it is subjected to ordinary judicial processes within
the territory of a foreign State,’ Robert Jennings and Arthur Watts, Oppenheim’s
International Law (9th edn, London: Longman, 1992), 342.
(15) For state practice that denies that immunities are part of customary international
law, see I Congreso [1983] 1 AC 260–1 (HL); Trendtex Trading v. Bank of Nigeria [1977] 1
QB 552–3; McElhinney, 104 ILR 701 (Irish Supreme Court, 15 Dec 1995); US v. Noriega,
99 ILR 162–3; Lafontant v. Aristide, 103 ILR 586, stating that ‘the grant of immunity is a
privilege which the United States may withhold from any claimant.’ For a doctrinal
opinion to the same effect, see DP O’Connell, International Law (London: Stevens & Sons,
1970), 846; Hersch Lauterpacht (ed), Oppenheim’s International Law (London: Longman,
1955), 274; Rosalyn Higgins, Problems and Process (Oxford: Oxford University Press,
1994), 81; Arthur Watts, ‘The Legal Position in International Law of Heads of States,
Heads of Governments and Foreign Ministers’ (1994) 247 Recueil des cours de
l’Académie de droit international 36, 53.
(16) Germany v. Italy, paras 70–7.
(17) See for detail Alexander Orakhelashvili, Peremptory Norms in International Law
(Oxford: Oxford University Press, 2006), ch 10.
(18) Myres McDougal, ‘The Hydrogen Bomb Tests and the International Law of the
Sea’ (1955) 49 American Journal of International Law 356.
(19) F. A. Mann, ‘The State Immunity Act 1978’ (1980) 51 British Yearbook of
International Law 43; James Crawford, ‘A Foreign State Immunities Act for
Australia?’ (1983) Australian Yearbook of International Law 71, 105–6.
(20) Interlocutory Decision on the Applicable Law, STL-II-01/I, 16 Feb 2011, para 91
(referring to Dionisio Anzilotti, Corso di diritto internazionale, vol I (4th edn, Padua:
CEDAM, 1955), 100).
(21) Furundžija, 10 Dec 1998, IT-95-17/I-T, paras 182–3.
(22) Asylum (Colombia v. Peru), Merits, ICJ Rep 1950, 266, 276.
(23) Humanitarian law treaties codify rules and obligations that do not fit within the
patterns of bilateralism, see for detail Orakhelashvili, Peremptory Norms in International
Law, ch 4.
(24) Nicaragua, ICJ Rep 1986, 100–1, 103 (referring to GA Res 2625 (1970) on Principles
of International Law (also known as the Friendly Relations Declaration; and Res 3314
(1974), on the Definition of Aggression)). The House of Lords has affirmed the
Page 17 of 21

peremptory status of the prohibition of the use of force following Nicaragua, see R v.
Jones [2006] UKHL 16, para 18.
(25) Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 American
Journal of International Law 291, 304; Bruno Simma, ‘Universality of International Law
from the Perspective of a Practitioner’ (2009) 20 European Journal of International Law
265, 272.
(26) James A. Green, ‘Questioning the Peremptory Status of the Prohibition of the Use of
Force’ (2010–11) 32 Michigan Journal of International Law 215, 243.
(27) For a detailed analysis of the practice consisting of decisions of ICJ, ICTY, and
national courts to this effect, see Orakhelashvili, Peremptory Norms in International Law,
ch 5.
(28) Accordance with international law of the unilateral declaration of independence in

respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Rep 2010, 402, 437–8 (para 81).
For previous practice, see Orakhelashvili, Peremptory Norms in International Law, chs 7
and 11. For the relevance of these principles in the law of state responsibility, see James
Crawford, Fourth Report, Yearbook of the International Law Commission, 2001, vol II (1),
12 ff, and 2001 Articles on State Responsibility, Yearbook of the International Law
Commission, 2001, vol II (2), Arts 41–2 and Commentary.
(29) Case Concerning the Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), 19 Dec 2005, ICJ, General List No 116, paras 43–7.
(30) As can be seen from the reaction of the UN General Assembly to the US invasions in
Grenada 1983, Panama 1989, and to that by USSR in Afghanistan 1979. See Simon
Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law
(Oxford: Oxford University Press, 2001), 99–106.
(31) See also ILC Draft Articles on Unilateral Acts and Commentary; see more generally
Brad Roth, ‘The Illegality of “Pro-Democratic” Invasion Pacts’ in Gregory Fox and Brad
Roth (eds), Democratic Governance and International Law (Cambridge: Cambridge
University Press, 2000), 328; and Orakhelashvili, Peremptory Norms in International Law,
ch 6, focusing on the 1960 Cyprus Guarantee Treaty and other similar instances.
(32) Most practice in this respect, such as the cases of Grenada in the 1980s, Haiti,
Liberia, and Sierra Leone in the 1990s, has actually centred on the mandate given to
intervening forces by the UN or regional organizations such as the Economic Community
of West African States (ECOWAS), in conjunction with consent from the entities that
were, at the time of intervention, deemed to be legitimate governments of those states,
for a more detailed discussion, see Alexander Orakhelashvili, Collective Security (Oxford:
Oxford University Press, 2001), chs 5 and 7.
Page 18 of 21

(33) cf Oscar Schachter, ‘The Legality of Pro-Democratic Invasion’ (1984) 78 American
Journal of International Law 645.
(34) R. Y. Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of
International Law 82, 91–2. Lord Ashburton maintained in the note of 28 July 1841 that
‘self-defence is the first law of our nature’.
(35) cf Arthur Watts, ‘The Importance of International Law’ in Michael Byers (ed), The
Role of Law in International Politics (Oxford: Oxford University Press, 2000), 5, 8.
(36) Derek W. Bowett, ‘The Use of Force for the Protection of Nationals Abroad’ in
Antonio Cassese (ed), The Current Legal Regulation of the Use of Force (Dordrecht:
Martinus Nijhoff, 1986), 39, 40.
(37) In relation to the Stanleyville operation in 1964, see Bowett, ‘The Use of Force for
the Protection of Nationals Abroad’ in Cassese, The Current Legal Regulation of the Use
of Force, 45; GA Res 38 (1983), 44/240 (1989), respectively on operations against
Grenada and Panama.
(38) That anticipatory self-defence is not permitted, see Yoram Dinstein, War, Aggression
and Self-Defence (5th edn, Cambridge: Cambridge University Press, 2011), 199; and a
comprehensive study by Abdul Ghafur Hamid, ‘The Legality of Anticipatory Self-Defence
in the 21st Century World Order: A Reappraisal’ (2007) 54 Netherlands International Law
Review 441–90.
(39) As Dinstein usefully illustrates, the difference between anticipatory and pre-emptive
use of force is essentially that of semantics, Dinstein, War, Aggression and Self-Defence,
199.
(40) Security Council 4644th Meeting, SC Press Release SC/7564; S/2003/351; for detail
and analysis, see Orakhelashvili, Collective Security, ch 5.
(41) Ghafur Hamid, ‘The Legality of Anticipatory Self-Defence in the 21st Century World
Order’, 479; Sean Murphy, ‘Assessing the Legality of Invading Iraq’ (2004) 92 Georgetown
Law Journal 173; see for detailed analysis of the pre-emption argument, Marc Weller, Iraq
and the Use of Force in International Law (Oxford: Oxford University Press, 2010), 134 ff.
(42) Eric Myjer and Nigel White, ‘The Twin Tower Attack: An Unlimited Right to Self-
Defence?’ (2002) 7 Journal of Conflict and Security Law 5, 7.
(43) Javaid Rehman and Saptarshi Ghosh, ‘International Law, US Foreign Policy and
Post-9/11 Islamic Fundamentalism: The Legal Status of the “War on Terror”’ (2008) 77
Nordic Journal of International Law 87, 94.
(44) Art 50, ILC’s Articles on State Responsibility, ILC Report 2001, UN GAOR, 56th Sess,
Supp No 10, A/56/10.
Page 19 of 21

(45) Dinstein, War, Aggression and Self-Defence, 245, 249–55.
(46) John Quigley, ‘The Afghanistan War and Self-Defense’ (2002–3) 37 Valparaiso
University Law Review 541, 554; see also Ghafur Hamid, ‘The Legality of Anticipatory
Self-Defence in the 21st Century World Order’, 477.
(47) Jurisdiction of the European Commission of the Danube, Advisory Opinion, Ser B, No
14, 8 Dec 1927, 36–7.
(48) Legal Consequences of the Construction of the Wall in the Occupied Palestinian
Territory, 9 July 2004, ICJ, Advisory Opinion, General List No 131, para 138; DRC v.
Uganda, 19 Dec 2005, General List No 116, para 146. For analysis see Alexander
Orakhelashvili, ‘Legal Stability and Claims of Change: The International Court’s
Treatment of Jus ad Bellum and Jus in Bello’ (2006) 75 Nordic Journal of International
Law 371.
(49) Elizabeth Wilmshurst et al, ‘The Chatham House Principles of International Law on
the Use of Force in Self-Defence’ (2006) 55 International and Comparative Law Quarterly
963; Michael Wood, ‘The Law on the Use of Force: Current Challenges’ (2007) 11
Singapore Yearbook of International Law 1; Daniel Bethlehem, ‘Self-Defense against an
Imminent or Actual Armed Attack by Nonstate Actors’ (2012) 106 American Journal of
International Law 769.
(50) Dinstein, War, Aggression and Self-Defence, 227. Art 1(c) of the Abuja Pact specifies,
in its relevant part, that aggression means ‘the use, intentionally and knowingly, of armed
force or any other hostile act by a State, a group of States, an organization of States or
non-State actor(s) or by any foreign or external entity, against the sovereignty, political
independence, territorial integrity and human security of the population of a State Party
to this Pact…’
(51) Yearbook of the United Nations, 1977, 210–14.
(52) ICJ Rep 1986, 103.
(53) Dinstein, War, Aggression and Self-Defence, 227, regards this as the ‘defining
moment’ to clarify that attacks by non-state actors are included. Wolff Heintschel von
Heinegg, ‘Legality of Maritime Interdiction Operations in Operation Enduring Freedom’
in Michael Bothe, Mary Ellen O’Connell, and Natalino Ronzitti (eds), Redefining
Sovereignty: the Use of Force after the End of Cold War (The Hague: Brill, 2005), 364,
385, suggests that Resolution 1373 ‘has made sufficiently clear’ that self-defence is not
restricted to armed attacks attributable to a state.
(54) ICJ Rep 2004, 230 (emphasis added).
(55) Foreign and Commonwealth Office, Policy Document, ‘UK Materials on International
Law’ (1986) British Yearbook of International Law 618–19.
Page 20 of 21

(56) Statement by the Rio Group, 26 Mar 1999, A/53/884, S/1999/347, 2; see also S/PV.
3988 (23 Mar 1999), for the positions of India and China.
(57) Statement by the Non-Aligned States (132 states), 24 Sept 1999, in Ian Brownlie,
Principles of Public International Law (Oxford: Oxford University Press, 2008), 744; and
the statement made in Havana, 10–14 Apr 2000, para 54.
(58) Legal Consequences of the Continuing Presence of South Africa in Namibia, ICJ Rep
1971, 36, para 69.
(59) World Summit Outcome Document, A/RES/60/1 (2005), para 138, refers to ‘collective
action, in a timely and decisive manner, through the Security Council, in accordance with
the Charter, including Chapter VII.’
Alexander Orakhelashvili
University of Birmingham
Page 21 of 21

Changing Jus Cogens

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Changing Jus Cogens

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Changing Jus Cogens Through State Practice?

The Case of the Prohibition

Oxford Handbooks Online

Print Publication Date: Jan 2015 Subject: Law, International Law

Abstract and Keywords

Subscriber: New York University; date: 15 March 2018

Subscriber: New York University; date: 15 March 2018

II. The Nature and Relevance of State

Consequently, ‘state practice’ is not self-fulfilling or self-explanatory. Its relevance derives

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A sufficient number of states must therefore be involved. The International Criminal

When state practice is identified to support an entitlement or claim, it should relate

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Subscriber: New York University; date: 15 March 2018

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III. The Jus Cogens Status of the

Prohibition of the Use of Force

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IV. State Practice and Exceptions to the

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Subscriber: New York University; date: 15 March 2018

Subscriber: New York University; date: 15 March 2018

Subscriber: New York University; date: 15 March 2018

Dinstein points to two examples from practice in favour of self-defence encompassing

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The notion of the ‘Responsibility to Protect’ relates to protecting vulnerable populations

Subscriber: New York University; date: 15 March 2018

Claims in favour of the extra-Charter exceptions have always been incoherent to

Subscriber: New York University; date: 15 March 2018

(2) cf Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public

(6) ICJ Rep 1986, 98.

(10) Pinochet [1999] 2 All ER 97 (HL).

(11) Gaddafi, 125 ILR 508 (Cour de Cassation).

Subscriber: New York University; date: 15 March 2018

(16) Germany v. Italy, paras 70–7.

(21) Furundžija, 10 Dec 1998, IT-95-17/I-T, paras 182–3.

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(28) Accordance with international law of the unilateral declaration of independence in

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Subscriber: New York University; date: 15 March 2018

(51) Yearbook of the United Nations, 1977, 210–14.

(52) ICJ Rep 1986, 103.

(54) ICJ Rep 2004, 230 (emphasis added).

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Subscriber: New York University; date: 15 March 2018

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