The Specially Affecting States Doctrine
112, 2 American Journal of International Law, 244 (2018)
10 Pages Posted: 19 Jun 2018 Last revised: 6 Sep 2018
The Specially Affected States Doctrine was articulated in the late 1960s, but the world has since undergone radical changes. Globalization has had far-reaching effects, and states are now codependent on each other in almost all fields. Over the years, the original justification for the SASD has become less and less relevant, and new justifications have emerged. In most areas of international humanitarian law, as in many other fields of international law, all states are affected by customary international law rules. But a special position may need to be accorded to states specially affecting of international law on the very particular issue. If there is to be a “specially affecting states” approach—itself a highly controversial proposition—then it must be specified and operated in the optimal way to adhere to its underlying justifications. Therefore, for a state to be considered “specially affecting” regarding a putative rule of international humanitarian law, it should either have a well-developed, reasoned, and rooted practice in that matter, or be the target of a rule—as in, be one of the states with a positive practical obligation to act or refrain upon the provisions of a rule. The status of a state as specially affecting should be considered on a case-by-case basis, and should not be a permanent and general situation, contrary to one construction that can be put on the United States Response to the ICRC study. Such an approach to the SASD is better fitted to modern realities, promotes optimal development of international law, and protects the legitimacy of customary international law. At the very least, it encourages states to explain their practices in legal detail and to back these explanations with research, data, and legal arguments.
Keywords: International Humanitarian law, Customary International Law
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