The Resilience of the Restrictive Rules on Self-Defence
Marc Weller (ed.), The Oxford Handbook on the Use of Force in International Law (Oxford: OUP) 2013, Forthcoming
16 Pages Posted: 6 Sep 2012
Date Written: 2012
The pendulum of international security law in recent years seems firmly to have swung towards the less restrictive side, both in scholarship and state practice. On the other hand, however, the ICJ’s post-2001 jurisprudence and other state practice have reaffirmed the restrictive reading. Trivially, but crucially, the UN Charter has not been amended. The law - at least Charter law, but perhaps also customary law - seems resilient to change, but perceptions of the law seem to have changed. What has happened and what are the dynamics at play? What is ‘resilience’ when it comes to the ius ad bellum? How can law be resilient vis-à-vis changing circumstance, opinions, interpretation and state practice?
In the following it is proposed to proceed in two steps. Section 2 will cast a glance on the indicators for and against resilience in an as-yet un-theoretical and somewhat phenomenological ‘pathology’ of post-2001 developments. By contrast, Section 3 will engage in a theoretical analysis of what ‘resilience’ can and cannot be and how the law and its perceptions change - or remain static.
Keywords: Self-defence, use of force, UN Charter, subsequent practice, customary international law, interpretation, treaty interpretation
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