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MA Cand. The article examines the recent debate between the experts of the Asian-African Legal Consultative Organization and the International Law Commission on the identification of Customary International Law in light of the marginal role that the Third World has played in customary law-making. During the decolonization period, recently independent states and their scholars were quite resistant towards customary law.

Antonopoulos, Constantine The unilateral use of force by states in international law. PhD thesis, University of Nottingham. The purpose of this study is an inquiry into the present state of customary international law on the use of armed force by individual States. It deals with the historical evolution of the law towards the current rule of the prohibition of the use of force, the content of this prohibition and the purported exceptions to it that are invoked in the practice of States as justifications of lawful resort to force. The present author does not deal with the use of force under the authority of competent organs of the United Nations and regional organisations, as well as questions of individual criminal responsibility for resort to armed force.

EJIL:Talk!

MA Cand. The article examines the recent debate between the experts of the Asian-African Legal Consultative Organization and the International Law Commission on the identification of Customary International Law in light of the marginal role that the Third World has played in customary law-making. During the decolonization period, recently independent states and their scholars were quite resistant towards customary law.

This cautious stance is justified by the central role of power in the formation of customary rules. Though the doctrine of sources underwent significant reforms during this chapter, recent developments such as the acceleration of custom, the greater role of international organizations and the persistent objector doctrine have not been able to alter this undemocratic bias.

Therefore, one should be aware of these limitations when engaging CIL from a Third World perspective. A recent issue of this Journal has brought an important discussion regarding the stance of Asian and African experts on the identification of Customary International Law CIL. In this article, we try to make a broader assessment of the relations between CIL and the Third World. In Section II, we examine the stance of recently independent states and their publicists towards customary law during the decolonization period, between the s and s.

Already at that time, there was a strong suspicion towards CIL as a source of international law, especially because of its Eurocentric roots, its conservative nature and its incompatibility with an increasingly heterogeneous international society.

Therefore, alternative approaches emerged, with an emphasis on multilateral decisions taken in international organizations. It seems widely recognized that states are treated unequally when it comes to the formation of customary norms and the reasons to justify this inequality can be ultimately traced to the distribution of power in the international order.

Section IV evaluates how international legal theory has generally responded to the challenges posed by the transformation of international society since the second half of the twentieth century and the impact of these developments on the Third World. We examine proposals for the acceleration of customary law, the increased importance of international organizations and the persistent objector doctrine.

By way of conclusion, Section V tries to evidence the limits of CIL, in both its traditional and modern approaches, to the constitution of a democratic law-making process in international law. It is clear, therefore, that despite the importance of the engagement of Third World states and experts in the work of the ILC, there are several limits for the democratization of international law through CIL.

It has become common sense to characterize new states and their publicists as particularly defensive regarding their recently acquired sovereignty. It seems almost a corollary of this critical attitude that one should criticize not only particular norms, but also the very methods and techniques through which this law comes into being, with a special emphasis on CIL.

A second reason to question CIL is that it is biased towards the preservation of the status quo. A third argument is the difficulty to reconcile this source with an increasingly heterogeneous international society. It can be argued that the shared cultural background of western states made it reasonable to believe that dozens of sovereign entities could develop common practices and beliefs regarding international law.

This assumption should be reconsidered in light of the almost two hundred states with very different interests and cultures that now form international society.

Therefore, it is legitimate to assume that the establishment of new customary rules or the derogation of old ones is a very difficult process. In this context of resistance, some Third World writers advocated for a larger role for decisions taken in international organizations, particularly resolutions of the UN General Assembly, where developing states rapidly became the majority and could, therefore, exercise a larger influence than their relative power in the international system.

We will come back to this issue on Section IV. But first, let us consider if these early writers of the Third World tradition in international law had a point—that is, if the scholarship and practice on CIL are indeed biased in favour of powerful states and against the needs and interests of marginalized peoples.

In other words, it is important to identify if there are structural elements in CIL that could keep reproducing the interests of Great Powers, even after the formal end of colonial rule. This sort of statement is anything but isolated in scholarly writings regarding the sources of international law. Many authors acknowledge that states carry different weight in the formation of CIL, though only some of them recognize that this is an influence of power.

The ILC Draft Conclusions on the identification of customary law quite rightly recognize that, in order to be considered general, a practice must not only be widespread, but also representative.

A State need not be big and powerful to be specially affected, as one can tell from the emergence of the archipelagic State regime. In any case, there seems to be a general recognition of the need for clarification on this issue. Our hypothesis is that legal practice usually attributes more weight to the practices and opinio juris of the most powerful states.

In this way, in many respects, CIL reveals itself as a privileged language for the translation of power into norms in the international order. An analysis of legal scholarship and practice points to the fact that this different treatment is, directly or indirectly, a matter of power. Further, courts tend to focus primarily on Western state practice.

This phenomenon through which power is inscribed in international law can be explained by four factors. The first issue is the different degree of publicity and availability of evidences attesting the practice of states. Effectively, scholars, courts and lawyers generally can more easily obtain documents proving the practice of western states than of the Third World.

It is rather a social construction influenced, in great extent, by factors such as unequal media coverage, and the fact that the main journals and yearbooks on international practice are located in the developed world. Even initiatives to collect, systematize and publish the practice of individual Third World states regarding international law remain marginal, 37 often because of the lack of economic resources.

Such politics, in the way it is practiced today, widens the gap between developing and developed states and affects the very underpinnings of international society. A related barrier for researchers of Third World practice is language. Indeed, it is quite expensive for these states to translate their documents regarding practice and opinio juris in languages other than their native tongue. Apart from that, legal scholarship—which several times helps in the task of identifying emerging customary international rules—is also dominated by a couple of languages that are not mastered by a great number of international legal scholars.

For many international lawyers from the Third World to be taken seriously by the mainstream of international legal academia, they must have the same linguistic competences of their mainly Anglophones counterparts. Apart from the difficulty in obtaining documents relating to the Third World, a different explanation for this unequal weight is the cost of action.

Powerful states are in a better position to afford the costs of acting or stating opinions relating to the very complex and diversified network of relations in the world system. Third World states, on the other hand, lack the resources to act in the same way, effectively circumscribing their actions to matters that are intimately and immediately related to their closest interests.

This approach seems to recognize that states are not obliged to act or to react at all times regarding facts or actions by other states. This cautious approach reaffirms the principle that it is up to the party arguing for a particular rule to show that there is indeed general practice, and protects weaker states from arguments that they should have acted against some emerging practice in order to bar its formation.

Similarly, Byers argues that the interpreter should be sensible to this unequal distribution of resources to cope with the cost of action and defends that greater weight should be attributed to the practice of a state that adopts a course of action despite big costs to do so. A third reason for the larger role played by powerful states on CIL relates to issues of an essentially technical nature.

In matters related to technologic and scientific progress, it is reasonable to assume that developed states have a deeper knowledge and, therefore, a louder voice in the network of discussions and interactions that shape CIL.

Similarly, only developed states detain certain technologies and resources and, therefore, their opinion or practice could be the only ones available. This could be the case in certain matters related to space, the deep seabed or nuclear technology. This discussion could once again be translated in the language of specially affected states. One could say that the nuclear states are specially affected when it comes to the law on the use of nuclear resources. Nevertheless, one cannot overlook the fact that, if only a small number of states are at the forefront of technologic innovation, this is a reflection of the unequal distribution of power and resources in the international order.

Whatever the legal rhetoric, it is clear that this is a way to inscribe the distribution of power resources into law. Fourth, power clearly affects the work of international adjudicatory bodies. Decisions of international courts tend to reinforce the role of opinio juris to the point that the practice of states is not only downgraded in its importance, but almost obliterated in the process of identification of a customary rule. It is not uncommon for scholars to criticize international courts for a lack of rigor when dealing with aspects related to CIL.

More than ten years ago, Vladimir Degan identified a tendency of an extreme judicial activism by ad hoc international criminal tribunals in the field of CIL. It seems clear that, for the aforementioned reasons, the practice of the most powerful states carry a heavier weight in CIL to the detriment of the Third World. In this way, CIL can be characterized as an undemocratic law-making process. The issues of publicity of acts, language, resources and technological development are, above all, manifestations of power, not only by states, but encompassing also international courts.

Having established that, in the following section we consider recent developments in scholarship and practice to see if there are ways to curb this democratic gap in CIL. The last half-century has witnessed several changes or new approaches to the scholarly and practical treatment of CIL.

Some of these innovations could seem to address the concerns about the impact of CIL on the Third World. With different arguments, writers have called for an acceleration of customary law, with a prominence of opinio juris over practice, which could respond to criticisms about the slow process of customary law-making. Similarly, it is usually considered that resolutions adopted in international organizations now carry a heavier weight for the interpretation of creation of CIL, which could also be seen as a victory of the propositions of early Third World writers.

In this section we assess if these new approaches and techniques on CIL respond to the critiques of the Third World or, on the other hand, if they preserve the undemocratic nature that tends to favour the most powerful states.

The passage of a specific lapse of time was never considered a requisite for the formation of customary norms. In any case, by the end of the twentieth century, several writers noted that the customary law-making process became faster. This can be attested by concepts such as coutume sauvage , 51 new international customary law, 52 or even instant custom. When considered in principle, this acceleration could be seen as a way to properly respond to the critique by Third World writers that traditional CIL crystalized the status quo that could only be challenged by a slow and difficult process.

Indeed, some of these approaches explicitly consider the position of Third World states. It is worth questioning, however, if this so-called acceleration actually answers to these demands. Luigi Condorelli, for example, attributes a fundamental role for CIL in the debate on the so-called fragmentation of international law.

At the same time, he recognizes the possibility of acceleration of custom without further inquiring about its detrimental consequences to a number of international subjects. He also accepts, apparently in an approving way, that courts such as the ICJ pay much more attention in its case-law to the opinio iuris element than the practice of states.

Universalism as an intellectual category can hardly be presupposed; one should verify the keeping of its promise on a daily basis.

Therefore, it becomes evident that this acceleration does not necessarily take into consideration the interests of the Third World nor does it question the biased character of CIL. This kind of approach may indeed facilitate allegations of powerful states about the need for an urgent change in the established rules, so as to answer to their own needs.

In other words, this can be a shortcut for Great Powers to overcome eventual resistance to certain rules of their interest. A second development of the matter is the greater importance attributed to decisions taken in multilateral organizations for the formation of CIL.

The recognition of the importance of resolutions by the General Assembly and similar bodies is not horizontal, but selective. International legal scholarship has developed a set of criteria so as to analyse the degree of influence of multilateral resolutions in the development of CIL.

The degree of consensus is a particularly interesting requisite. Ellis stresses that it must be assessed not in a purely quantitative manner but also in qualitative terms, in a way that would evaluate the weight of states that supported or opposed a certain decision in order to consider if it qualifies as an evidence of a custom.

Effectively, he argues for the centrality of the United States in any discussion about outer space or the exploration of the sea-bed, since the US is one of the few states with the technology to explore these areas. As already noted in Section III, it would be quite artificial to consider the monopoly over technological resources as anything but a matter of power.

Other writers are more explicit on this issue, and make it clear that the main criterion to assess the weight of UN General Assembly Resolutions should be the support of the Great Powers. Therefore, one can see how it all comes back to the unequal weight of states, this time in an indirect manner, not by a consideration of state practice directly, but the support to multilateral decisions as evidence of CIL.

Once again, quite differently from what Third World authors called for in the s and s, the use of these resolutions did not become a remedy for the undemocratic nature of international law, and may even, depending on how their legal significance is interpreted, have the opposite effect.

Another development in international law with complex consequences for the discussion about CIL and the Third World concerns the persistent objector doctrine.

Though this doctrine is now taken for granted, studies show that it was only recently developed. It is generally accepted that the ICJ recognized it in the s.

Narratives of Force: The Presence of the Writer in International Legal Scholarship

We are very grateful to Professor Claus Kress for this essay on the international legal framework governing the use of force. His analysis is a true tour de force that we believe will add significantly to the work of experts, students of international law, policymakers, journalists, and others who confront these issues. Recent events in the same geographic region awaken the memory of this question. It would be decidedly too complimentary to claim that the US government made a serious attempt to justify its use of force under international law in its statement in the UN Security Council. Nor do the laconic factual assertions in the letter from the Turkish government to the President of the UN Security Council regarding its military operation in Kurdish-controlled areas of Syria, which commenced in , give the impression that Turkey placed any significant emphasis on the prohibition of the use of force in its deployment decision.

If there is to be humanitarian intervention, there should be a coherent humanitarian justification coupled with a proper procedural and substantive legal regime to underwrite it. Humanitarian intervention is a means to prevent or stop a gross violation of human rights in a state, where such state is either incapable or unwilling to protect its own people, or is actively persecuting them. More recently, the military intervention in Libya, though frowned upon by several states in the international community, can be said to be lawful since it was authorized by the Security Council in Resolution , in ostensible exercise of its powers under Chapter VII of the UN Charter. You can look at it. And when you do, you discover that virtually every use of military force is described as humanitarian intervention.

On the Principle of Non-Use of Force in Current International Law

Some jurists regard it as a law while some other jurists argue in negative and hold that International law is not a true law. Through this article an attempt has been made to explain the true nature of International law by separately describing both the views in a very lucid manner The term International Law is synonymous with the term law of nations.

Humanitarian Intervention: A Legal Analysis

Every society, irrespective of its population, makes a legal framework law under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this.

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4 Comments

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