Implications of the Diversity of the Rules on the Use of Force for Change in the Law

Abstract

Abstract This article analyses the structural conditions within the jus ad bellum that affect whether and how that law changes. In particular, it examines how the diversity of the rules that form the law relating to the use of force affects the development of rules permitting the use of force to protect human rights. After noting some areas where it has been argued that aspects of the law relating to use of force have changed as a result of evolving state practice, it identifies a number of obstacles to accepting the argument that changes to customary international law can affect the law on the use of force in the UN Charter. It is argued that, unlike with self-defence, changes to customary international law would not automatically lead to changes in the Charter prohibition of the use of force. Since any rule permitting humanitarian intervention would create a new exception to the Charter prohibition of the use of force and to a norm of jus cogens, that change cannot occur on the basis of custom alone. Changes to interpretations of the UN Charter and to a jus cogens norm will be required, and such changes must occur in line with the rules regarding how such norms change. Finally, the article considers one concrete possibility for a change to the jus ad bellum that would allow humanitarian intervention without UN Security Council approval: approval of such a use of force by the UN General Assembly under the ‘Uniting for Peace’ Resolution of 1950. Leaving aside the political and practical challenges of achieving such change, the section explores the conceptual challenges that would need to be overcome.