Changing Jus Cogens Through State Practice? — The Case of the Prohibition of the Use of Force and Its Exceptions
Oxford Handbook on the Use of Force, M Weller, ed., OUP, Forthcoming
12 Pages Posted: 15 Jun 2012 Last revised: 16 Jun 2012
Date Written: June 15, 2012
This chapter to the forthcoming Oxford Handbook on the Use of Force (OUP) addresses the intensively debated points regarding the role and effect of jus cogens in the area of the use of force when contrary State practice tends to contribute to consolidating exceptions to the prohibition of the use of force, or to validating violations of that prohibition. First, this contribution examines what State practice is, how it works, and what its limits are. Secondly, the peremptory status of the prohibition of the use of force gets substantiated. Thirdly, various claimed exceptions to the UN Charter-based prohibition of the use of force – and to its customary counterpart – are examined in the light of State practice that presumably supports the emergence and consolidation of those exceptions. It is shown how the jus cogens status of the prohibition of the use of force, together with other relevant factors, prevents the acceptance of those exceptions within the international legal system.
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