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Legal Theory and Methodology

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The UN Security Council Members' Responsibility to Protect

Part of the book series: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht ((BEITRÄGE,volume 274))

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Abstract

Any inquiry into the substance of international law rests on a given understanding of the sources of the international legal system and the processes for its analysis, or, as Shabtai Rosenne puts it, of where to find the law and how to read it. As a general matter of international legal theory, however, these questions are far from being conclusively answered, but continue to fill entire volumes of academic debate.

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Notes

  1. 1.

    Cf. Shabtai Rosenne, Practice and Methods of International Law (London: Oceana, 1984) at ix (labelling his a “Where-to-find-your-law-and-how-to-read-it book”). On the “need to ensure that the relevant norms are solidly grounded in international law” see also Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 82; on the importance of rules of interpretation cf. also the straightforward formulation by Ulf Linderfalk, “Is the hierarchical structure of Articles 31 and 32 of the Vienna Convention real or not? Interpreting the rules of interpretation” (2007) 54 NILR 133 at 134: “The result of an interpretation process is correct when it can be successfully defended as being in accordance with the provisions of Vienna Convention Articles 31-33. The result is incorrect when it cannot be so defended”.

  2. 2.

    See e.g. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006); specifically for international custom, see e.g. Brian D. Lepard, Customary international law: a new theory with practical applications (Cambridge: Cambridge University Press, 2010).

  3. 3.

    See International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Skotnikov J., Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13705.pdf> 366 at 379.

  4. 4.

    On this separation entertained by most modern lawyers between international legal theory on the one hand and doctrinal views about substantive legal rules on the other, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 1-4.

  5. 5.

    See Article 38(1)(a) and (b) ICJ Statute. Article 38(1)(c) ICJ Statute identifies general principles of international law as another source of law. Judicial decisions and scholarly pronouncements, mentioned in Article 38(1)(d), are subsidiary means for the analysis of these sources.

  6. 6.

    See e.g. Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 515.

  7. 7.

    See e.g. Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 198.

  8. 8.

    See notably Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 270-276.

  9. 9.

    See International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment, [1996] I.C.J. Rep.595, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/7349.pdf> at para. 47 (2); id., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13685.pdf> at paras. 147-149.

  10. 10.

    Cf. the review of relevant scholarly opinion in Chapter 4, especially Parts 4.1.1.2 and 4.2.1.1.1 below.

  11. 11.

    See Siobhán Wills, “The ‘Responsibility to Protect’ by Peace Support Forces under International Human Rights Law” (2006) 13:4 International Peacekeeping 477.

  12. 12.

    See e.g. Louise Arbour, “The responsibility to protect as a duty of care in international law and practice” (2008) 34 Review of International Studies 445 at 449-450 (arguing that the states have a duty to prevent genocide “under the Genocide Convention and its norms, which have been incorporated into international customary law”).

  13. 13.

    See e.g. Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 212-220 (for an evaluation of the World Summit outcome and declarations made by states on the occasion of the summit and thereafter).

  14. 14.

    An exception in this regard is the reference to general principles in the context of humanitarian intervention by Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 273, 276.

  15. 15.

    See e.g. the commentaries on the Bosnian Genocide Case by Andrea Gattini, “Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment” (2007) 18:4 E.J.I.L. 695; Karin Oellers-Frahm, “IGH: Bosnien-Herzegowina gegen Jugoslawien” (2007) 4 Vereinte Nationen 163; Frank Meyer, “Die Verantwortlichkeit von Vertragsstaaten nach der Völkermordkonvention: Besprechung zum Urteil des Internationalen Gerichtshofs vom 26. Februar 2007 in der Sache ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)’” (2007) 5 HRR-Strafrecht 218.

  16. 16.

    Cf. e.g. Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Clarendon, 1997) at 96 (discussing the erga omnes character of obligations relating to genocide); David Luban, “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report” (2006-2007) 7 Chi. J. Int’l L. 303 at 305, n. 20 (rejecting the view that the qualification of a crime as genocide triggered a legal obligation to act for third states in the introductory section to his discussion of the terminology used in the Darfur context).

  17. 17.

    See Part 2.3.4.

  18. 18.

    See e.g. Heribert Franz Köck, “Die humanitäre Intervention” in: Gustav Gustenau, ed., Humanitäre militärische Intervention zwischen Legalität und Legitimität (Baden-Baden: Nomos, 2000) 25 at 45-57 (addressing both state practice and some basic features of the UN Charter but ultimately advocating a duty of humanitarian intervention because it was necessary for a compelling international legal order rather than by virtue of specific rules of treaty or customary law). Kirsten Schmalenbach, “Recht und Gerechtigkeit im Völkerrecht” (2005) 60 JuristenZeitung 637, renounces attempts to construe the principles of the UN Charter in a way that would allow for humanitarian intervention, examines and ultimately rejects as incompatible with the international legal system a right of resistance as has been accepted by the German Federal Constitutional Court against norms that are incompatible with demands of justice, and finally denies the prospect that a duty of humanitarian intervention may crystallize under international law.

  19. 19.

    See on the history of opinions on the duty to intervene under naturalist theories generally Heribert Franz Köck, “Die humanitäre Intervention” in: Gustav Gustenau, ed., Humanitäre militärische Intervention zwischen Legalität und Legitimität (Baden-Baden: Nomos, 2000) 25 at 31-34.

  20. 20.

    Lepard’s “fresh legal approach based on fundamental ethical principles in international law and world religions” is exceptional in the weight that is given to value considerations. This approach centers on the assumption that international legal analysis, especially in the area of humanitarian intervention, raises many potential conflicts between legal norms which ultimately reflect conflicts between ethical principles underpinning those norms and cannot be resolved by the traditional methodologies of legal interpretation, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 3-5, 28-35. Accordingly, Lepard identifies ethical principles relevant to the issue of humanitarian intervention which he then grants a decisive role in his legal analysis, ibid., chap. 2-3. He thus links his enquiry into the legal obligations of the Security Council and its members to the question of similar ethical responsibilities and the effect that they have on the determination of the Security Council’s legal obligations, ibid., at 28-29. In this approach, ethical principles play a decisive role for legal analysis and contribute in several ways to its outcome, including on the obligations of the Security Council and its members. For instance, Lepard understands the category of general principles of law to comprise “general principles of moral law”, including “a general principle of moral law requiring governments, international organizations, and other actors to take some reasonable measures within their abilities to prevent or curb widespread and flagrant violations of essential human rights, including genocide, crimes against humanity, and rampant or systematic war crimes or torture”, which is binding on the Security Council, ibid., at 273, 276. Also, ethical considerations may reinforce a certain interpretation of treaty provisions, such as Article I of the Genocide Convention, and confirm the customary status of a rule, such as of the duty to prevent genocide, which would be doubtful under a traditional analysis of the sources of positive international law, ibid., at 272-273.

  21. 21.

    Cf. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 3-4 (noting that most doctrinal analyses confront opposing views and that an attempt to solve such conflicts may call for an inquiry into the underlying theoretical positions); see also Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 884 (observing that only by taking into account the entire “panoply” of elements that shape the interpretative process will it be possible to comprehend how a certain analyst arrived at the proper, or the desired, result).

  22. 22.

    See John B. Bellinger III & William J. Haynes, Letter from John Bellinger III, Legal Adviser, U.S. Dept. of State and William J. Haynes, General Counsel, U.S. Depart. of Defense, to Dr. Jakob Kellenberger, President, International Committee of the Red Cross Regarding Customary International Law Study (3 November 2006), [2007] 46 ILM 514 at 514-516. As Bellinger and Haynes explicitly state, “[a]lthough it is appropriate for commentators to advance their views concerning particular areas of customary international law, it is ultimately the methodology and the underlying evidence on which commentators rely […] that must be assessed in evaluating their conclusions”, ibid. at 514-516.

  23. 23.

    Cf. e.g. Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 3 (“The principal task of the interpretation of legal rules and regimes is to provide for transparency, predictability and consistency of international legal regulation, which is the only way of motivating States, and other international legal actors, to be interested in observing international law”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 3 (observing that, as legal propositions are constantly disregarded in international practice, only an appraisal of the specific nature of law as opposed to “other aspects of social life among States” may explain why they are relevant nonetheless).

  24. 24.

    But see Heribert Franz Köck, “Die humanitäre Intervention” in: Gustav Gustenau, ed., Humanitäre militärische Intervention zwischen Legalität und Legitimität (Baden-Baden: Nomos, 2000) 25 at 38-39 (suggesting that the issue of humanitarian intervention cannot be settled by initially appraising more basic theories of natural law or legal positivism and subsequently deriving an answer from the preferred approach, since the international community is so pluralistic in nature that any attempt to define a theoretical basis that will be universally accepted is vain).

  25. 25.

    See already International Law Commission, Special Rapporteur Sir Humphrey Waldock, Third Report on the Law of Treaties, UN Doc. A/CN.4/167 and Add.1-3, (1964) Yearbook of the International Law Commission, Vol. II, 5, Commentary to Articles 70-73 at para. 6. In literature, this quotation has willingly been endorsed, see only Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 32 at para. 6; Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 59.

  26. 26.

    See Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 881-885.

  27. 27.

    Ibid., at 883.

  28. 28.

    Ibid.

  29. 29.

    Ibid., at 881-883.

  30. 30.

    Ibid., at 881.

  31. 31.

    Ibid. These concepts are linked to one another, as taking into account the consequences of an interpretation is concerned with the impact that it has on the realization of these values, cf. ibid., at 881-882 (treating the two processes as twin concepts).

  32. 32.

    Thus Bruno Simma and Philip Alston have subscribed to John Humphrey’s assessment that “human rights lawyers are notoriously wishful thinkers”, see Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 84.

  33. 33.

    Cf. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 883-884.

  34. 34.

    See e.g. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 884; Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 1; Christian Dominicé, “Methodology of International Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 354 at 355. Yet it should also be noted that recourse to a certain method is not always necessarily linked to one specific theory of law. Rather, it may survive the demise of one theory and continue for some time to be applied despite changed understandings of the nature of international law, see Roberto Ago, “Positivism”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 1072 at 1075 (observing that positivist methods for determining the legal quality of rules had come to operate irrespective of the premises of positivism and remained influential even when some of the premises of strict positivist theories had started to be questioned).

  35. 35.

    Cf. for this observation Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 303-306 (noting that a theory according to which a norm is legally binding due to its reflecting some idea of natural justice requires nothing more than a content analysis and that therefore no proper doctrine of sources had in fact been developed by early writers).

  36. 36.

    See on the history of natural and positivist concepts of international law e.g. John H. Currie, Craig Forcese & Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007) at 5-19; cf. also Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 307 (observing that the dichotomy of naturalism and positivism is one of the defining features that organized standard debates).

  37. 37.

    See Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 60-62; cf. on this basic principle of legal positivism also Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 45-46; Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 299-301.

  38. 38.

    See e.g. Roberto Ago, “Positivism”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 1072 at 1073 (summarizing the positivist view as one according to which law must be positive, i.e. created (“gesetztes Recht”) by a competent authority through the proper procedure, the “formal source” of the rule).

  39. 39.

    Ibid.

  40. 40.

    See Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 2-3.

  41. 41.

    Cf. on this Roberto Ago, “Positivism”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 1072 at 1073; Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 1-3.

  42. 42.

    See H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71:4 Harvard. L. Rev. 593, especially at 594, 606; cf. also generally on this J.L. Holzgrefe, “The humanitarian intervention debate” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 15 at 35; Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 47.

  43. 43.

    For the proposition that ethical considerations play no role in the determination proper of international law, see Joseph Raz, The concept of a legal system, 2nd ed. (Oxford: Oxford University Press, 1980) at 214; cf. also generally on this J.L. Holzgrefe, “The humanitarian intervention debate” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 15 at 35; Steven R. Ratner & Anne-Marie Slaughter, “Appraising the Methods of International Law: A Prospectus for Readers” in Steven R. Ratner & Anne-Marie Slaughter, eds., The Methods of International Law (Buffalo: William S. Hein & Co., 2005) 1 at 5; Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 47. That natural law has contributed, and may in fact still contribute, to international law has been acknowledged, for instance, by Louis Henkin, who emphasizes, however, that the content of natural law only becomes part of international law if it is “recognized or accepted by States and the State system”, see Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 46.

  44. 44.

    On this “principle of consent“ and the role of treaties, custom, and general principles as the “sources of law in the sense that they constitute the ways in which rules or principles became international law”, see Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 45-47 [emphasis omitted].

  45. 45.

    See Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 884.

  46. 46.

    Ibid.

  47. 47.

    Cf. Alexander Orakhelashvili, “Natural Law and Justice”, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at para. 1 (“The concept of natural law refers to norms and principles deducible from nature, reason, or the idea of justice”); cf. also Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 303-304 and n. 1 (indicating that a naturalist understanding of international law meant essentially that “[f]inding the law became a matter of content analysis: whether the potential standard corresponds to God’s will or natural reason” and hence required no distinct sources theory).

  48. 48.

    For an overview of the history of natural law from ancient Greek philosophy via the texts of medieval Christian writers to the theories of enlightenment philosophers see José Puente Egido, “Natural Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 515 at 516-517. See also Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 40-41 (with references for both religious and secular variants of natural law doctrine).

  49. 49.

    Cf. on this fundamental distinction between natural law theories and legal positivism J.L. Holzgrefe, “The humanitarian intervention debate” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 15 at 35-36 (pointing to the vigorous opposition to the positivist separability thesis “by naturalists of all stripes”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 303-304 and n. 1, quoted in note 47 supra.

  50. 50.

    On the inductive methodology of legal positivism, see Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 60-62. Martti Koskenniemi works with the distinction between “ascending arguments about ‘consent’” and “descending ones about ‘justice’”, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 306 and more generally at 307-333.

  51. 51.

    Robert Kolb notes that international law has remained untouched by hermeneutical developments in both domestic legal systems and in general theory of law and hence continues to be dominated by a narrow version of positivism, see Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 1-2. Fernando R. Tesón criticizes that “[p]ositivism reigns in international law in a way in which it does not in other legal disciplines”, see Fernando R. Tesón, Humanitarian intervention: an inquiry into law and morality, 3rd ed. (Ardsley, NY: Transnational, 2005) at 416.

  52. 52.

    See Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 46.

  53. 53.

    Namely in the Bosnian Genocide Case, the Court’s judgment on preliminary objections denies territorial limits on the duty to prevent and punish genocide following a reference to its 1951 opinion in the Reservations Case, in which it had noted that genocide was inter alia contrary to moral law, see International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [1996] I.C.J. Rep. 595, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/7349.pdf> at 615-616; cf. on this point already Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 248-249. Cf. more generally on the “value-oriented approach” of the Court in characterizing obligations as erga omnes ibid ., at 249 and n. 91. In their joint declaration on the merits of the case, Judges Shi and Koroma explicitly acknowledged that their belief in the “intrinsic humanitarian value of the conclusion reached by the Court” had been a reason for them to subscribe to the findings on the duty to prevent, despite misgivings which they had on the interpretation by the majority of other aspects of Article I Genocide Convention, see International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Shi and Koroma JJ., Joint Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13695.pdf> 279 at para. 5. Conversely, Judge Tanaka included his natural law concept of human rights in the notion of “general principles of law recognized by civilized nations” in Article 38(1)(c) ICJ Statute and searched for “elastic” forms of recognition, in domestic legislation but also in the resolutions and declarations of international organizations, see South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6, Tanaka J., dissenting opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/47/4969.pdf> 250 at 299-300.

  54. 54.

    See John H. Currie, Craig Forcese & Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007) at 9-11.

  55. 55.

    Cf. Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 60-62 (noting however critically that “the idea of an inductive, factual positive science of international law may be characterized more as myth than as reality”).

  56. 56.

    Cf. on the threat of subjectivism already Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 43-44 and 70-71 and the authorities cited therein.

  57. 57.

    On this issue of legal uncertainties in a naturalist framework, see e.g. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 884 (submitting that the pursuit of legal certainty militates in favour of placing positive elements at the centre of the interpretative process); José Puente Egido, “Natural Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 515 at 515 (noting that classical Greek philosophers had never provided a precise definition of the concept of “nature” and that this debate continues to the present day).

  58. 58.

    I have discussed the possibility of ensuring a sufficient degree of objectivity in ethical arguments elsewhere, see Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 80-84. By testing ethical propositions against the views expressed by state representatives, a convergence could be achieved between value-based reflections on the one hand and consent-based observations on the other that ultimately differs only in degree from the arguments made by scholars and judges in practice.

  59. 59.

    See Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 533 (submitting that “[t]he close linkage between the lawmaking system and its subjects should minimize the likelihood that those subjects will be motivated to violate the law. Their participation in the law-making process makes it likely that the law will reflect their collective interests”).

  60. 60.

    Cf. e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 301 (suggesting that state practice as a constituent element of customary law, while no normative reason itself, still serves a purpose, although “a more modest one”, in that it prevents the stipulation of “abstract, utopian norms”, reconciles legal propositions with social reality and thereby ensures that law has a conduct-guiding effect in practice).

  61. 61.

    See most pointedly the summary of the first “standard objection” against a purely consensualist theory by Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 309-310: “First, to say that law is identical with consent argues too much because anything that States will at any moment would then be law to them. This not only creates tremendous difficulties of law-ascertainment but it would be a fully apologist doctrine: If there is no distance between ‘will’ and ‘law’, then there is no justification to impose a standard on a non-consenting State. Limits on State freedom which are merely willed and capable of being altered at any change of will are no normative limits at all. Pure consensualism distorts the law’s instrumental purpose as it merely enregisters existing status quo. Behind a relativist and tolerant disguise it betrays an inherent inability of criticizing odious instances of State practice” [footnote omitted]. See also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 297-301 (noting the “contra-factuality” of law as a system which not merely describes the realities that it finds but prescribes certain forms of behaviour); José Puente Egido, “Natural Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 515 at 519 (pinpointing as the “insurmountable contradiction” of positivism from a methodological point of view that “[p]ure experiment and mere observation do not permit the formulation of general rules” but would rather limit positivism to a “mere description of social reality”); Heribert Franz Köck, “Die humanitäre Intervention” in: Gustav Gustenau, ed., Humanitäre militärische Intervention zwischen Legalität und Legitimität (Baden-Baden: Nomos, 2000) 25 at 42 (indicating that a positivist view of international law will regularly be the basis of those arguments which states unwilling to cooperate submit to deny the existence of a relevant legal duty, making positivism “a screen for a lack of political will”).

  62. 62.

    Cf. on the difficulties of reconciling law as a prescriptive system with a descriptive methodology e.g. already Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 300-301 (proposing as a consequence a major role for general principles of law in value-related areas, such as the field of human rights, ibid. at 302-310).

  63. 63.

    See the general rule pacta tertiis nec nocent nec prosunt in Article 34 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, online: United Nations <https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf>.

  64. 64.

    See e.g. Jan Wouters & Cedric Ryngaert, “Impact on the Process of the Formation of Customary International Law” in: Menno T. Kamminga & Martin Scheinin, eds., The Impact of Human Rights Law on General International Law (Oxford: Oxford University Press, 2009) 111 at 119 (noting “serious difficulties” with a classical positivist approach when it comes to the protection and promotion of human rights, given the often inconsistent state practice in this regard, and advocating subsequently a modern version of positivism). Cf. also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 284 (responding to Koskenniemi’s criticism of a positivist approach to human rights by calling for a debate on the challenges for legal doctrine with a view to taking human rights seriously).

  65. 65.

    For the proposition that state consent, which is in reality the consent of the states’ leaders only, is merely of “instrumental value” but cannot confer legitimacy on international norms as long as those leaders “cannot reasonably be viewed as agents of the people they claim to represent” cf. already Allen Buchanan, “Reforming the international law of humanitarian intervention” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 130 at 152; cf. also more broadly the proposition by Niels Petersen that behaviour is no normative reason but only “a means to reconcile law and reality”, see Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 301.

  66. 66.

    Cf. e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 301 (on the usefulness of the state practice requirement of customary international law as a means of reconciling law and reality).

  67. 67.

    The circularity of the consent principle has already been noted by J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 5th ed. (Oxford: Oxford University Press, 1955) at 54 (“To say that the rule pacta servanda sunt is itself founded on consent is to argue in a circle”); see almost verbatim still Andrew Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations, 7th ed. (Oxford: Oxford University Press, 2012) at 51. Even Louis Henkin acknowledges that “[i]nevitably, the normative character of a treaty depends on an antecedent, underlying ‘constitutional’ principle, rooted perhaps in natural law, the principle pacta sunt servanda, agreements are to be observed”, see Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 47. On this inconsistency in the positivist allegiance to the state consent principle, see already Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 195-196. Cf. also J.L. Holzgrefe, “The humanitarian intervention debate” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 15 at 36 (arguing that legal positivists need to have recourse to naturalist arguments in order to justify their assumption that state consent is the proper basis of international norms).

  68. 68.

    Cf. e.g. Fernando R. Tesón, Humanitarian intervention: an inquiry into law and morality, 3rd ed. (Ardsley, NY: Transnational, 2005) at 12-16 (on the need to select the precedents that support the claim to the existence of a rule of customary law) and 193-196, 216-217 (on the need to rank the various purposes set out in Article 1 of the UN Charter); Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 29-30, 99 (on the need to reconcile competing legal norms); Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 545-546 (on the proof of opinio juris and state practice); Heribert Franz Köck, “Die humanitäre Intervention” in: Gustav Gustenau, ed., Humanitäre militärische Intervention zwischen Legalität und Legitimität (Baden-Baden: Nomos, 2000) 25 at 36 (on conflicts between competing principles of positive law and tensions amongst the various principles of the United Nations).

  69. 69.

    See Fernando R. Tesón, Humanitarian intervention: an inquiry into law and morality, 3rd ed. (Ardsley, NY: Transnational, 2005) at 12-16.

  70. 70.

    See Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 3-4.

  71. 71.

    See Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 244-245; cf. also International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226, Koroma J., Dissenting Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/95/7523.pdf> 556 at 575-576; International Court of Justice, South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6, Tanaka J., Dissenting Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/47/4969.pdf> 250 at 294-299 (referring to the ICJ’s approach in its 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide as support for his explicitly naturalist understanding of general principles of law).

  72. 72.

    Cf. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 881, 884.

  73. 73.

    Cf. ibid., at 884.

  74. 74.

    Cf. the references in note 53 above.

  75. 75.

    See especially the argument submitted by Judge Tanaka in the South West Africa Case that human rights existed irrespective of the will of states as part of natural law, International Court of Justice, South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6, Tanaka J., dissenting opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/47/4969.pdf> 250 at 294-299; cf. also Jan Wouters & Cedric Ryngaert, “Impact on the Process of the Formation of Customary International Law” in: Menno T. Kamminga & Martin Scheinin, eds., The Impact of Human Rights Law on General International Law (Oxford: Oxford University Press, 2009) 111 at 124 (noting that Judge Tanaka represented an “openly natural law approach” in the jurisprudence of the ICJ).

  76. 76.

    See on this already Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 315.

  77. 77.

    Cf. the comparison by Jan Wouters and Cedric Ryngaert of the “openly natural law approach to general principles of law” by Judge Tanaka in the 1966 South West Africa Cases on the one hand and the positivist approach by Alston and Simma on the other hand: Jan Wouters and Cedric Ryngaert, “Impact on the Process of the Formation of Customary International Law” in: Menno T. Kamminga & Martin Scheinin, eds., The Impact of Human Rights Law on General International Law (Oxford: Oxford University Press, 2009) 111 at 124.

  78. 78.

    On the international legal order, and indeed any legal order, as a “man-made construction” see especially Christian Tomuschat, “Obligations Arising for States Without or Against their Will” (1993) 241 Recueil des Cours 195 at 233-235.

  79. 79.

    Ibid ., at 234.

  80. 80.

    Cf. in this direction also Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 884 (proposing that positive elements remain at the heart of the interpretative process but are complemented by considerations of values and result which may have a decisive effect).

  81. 81.

    Ultimately, what matters are the methods to be applied rather than the label that may or may not most appropriately describe the underlying legal theory, cf. also Christian Dominicé, “Methodology of International Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 354 at 356 (proposing that terminology designating the different theories should be avoided and only such referring specifically to methods be used).

  82. 82.

    I admit that the approach chosen in this thesis may be more conservative in this regard than my previous work on the law and ethics of the responsibility to protect, cf. Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 59-73.

  83. 83.

    See Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 46.

  84. 84.

    See Giovanni Distefano, “La pratique subséquente des états parties à un traité” (1994) 40 Annuaire Français de Droit International 41 at 45 (quoting the principle of eius est interpretare legem cuius condere).

  85. 85.

    See Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1422 (defining authentic interpretation as “binding or legally conclusive interpretation [by a competent decision-maker] which no longer can be challenged as erroneous”); Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 15-16. Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 358 (noting that authoritative interpretation, since its result is read into the treaty itself, presumably displaces any other outcome that could be arrived at pursuant to the principles of interpretation and could thus have the same effect as an amendment).

  86. 86.

    See Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheim’s International Law, 9th ed., Vol. I: Peace (Parts 2 to 4) (Harlow: Longman, 1992) at § 630; against the applicability of the rules in Articles 31 and 32 VCLT to authentic interpretation by the parties see also Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 11.

  87. 87.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 16.

  88. 88.

    Cf. e.g. Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 23 (denying the existence of an “exact borderline between interpreting and changing treaty law” and noting that judges have a duty to at least seek this borderline and respect it, whereas state representatives have more flexibility in this regard).

  89. 89.

    On the prerequisites and different degrees of impact of subsequent agreements and practice, see below, Part 2.3.1.4.

  90. 90.

    Cf. e.g. Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 13 (noting that the rules on treaty interpretation in Articles 31 and 32 VCLT as well as corresponding customary law are neither precise nor unambiguous); Duncan French, “Treaty Interpretation and the Incorporation of Extraneous Legal Rules” (2006) 55 ICLQ 281 at 281 (for whom the provisions of the VCLT provide nothing more than “basic rules of interpretation” that are “no more than a starting point” and leave treaty interpretation “a deeply obscure and subjective process”); Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101 at 101 (finding that “[t]he issue of treaty interpretation has always been one of the most difficult questions in treaty law, which the 1969 Vienna Convention on the Law of Treaties did not settle in a satisfactory manner” as “[t]here is still a host of unresolved questions concerning the basic principles of treaty interpretation (such as the role of travaux préparatoires and intentions of the parties) […]”); David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 7 (acknowledging the interpretation of treaties to be, “[d]ue to its complex nature and the many issues involved, […] one of the most debated topics in international law”); Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 64 (attributing the VCLT with an “eclectic approach” that has not given precedence to either a literal, a systematic or a functional interpretation).

  91. 91.

    For the limited scope of the Vienna Convention on the Law of Treaties, covering only agreements between states and only those made in a written form, see Articles 1, 2(1)(a) VCLT.

  92. 92.

    Cf. the narrow definition of “treaty” as comprising only written agreements in Article 2(1)(a) VCLT; see also Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1419 (for the character of Articles 31 and 32 VCLT as binding treaty law).

  93. 93.

    On the customary law status of the rules reflected in Articles 31 and 32 VCLT, see e.g. International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13685.pdf> at para. 160; for numerous further references to ICJ pronouncements in this regard, see Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012), n. 636; in doctrine cf. e.g. Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 61; David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 12. But see Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 37-39 and Article 32 at para. 13 (suggesting that customary rules of interpretation akin but not identical to those codified in Articles 31 and 32 VCLT are just emerging).

  94. 94.

    See Articles 31(1), (2), (3)(a) – (b), 32 VCLT.

  95. 95.

    See Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 245.

  96. 96.

    See Article 31(3)(c) VCLT; see also Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 32 at paras. 24-25.

  97. 97.

    On this rule of interpretation already prior to the adoption of the VCLT, cf. International Court of Justice, Case concerning the right of passage over Indian territory (Preliminary Objection), Judgment, [1957] I.C.J. Rep. 125, online: International Court of Justice <http://www.icj-cij.org/docket/files/32/2231.pdf> at 142; cf. also Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheim’s International Law, 9th ed., Vol. I: Peace (Parts 2 to 4) (Harlow: Longman, 1992) at § 632.

  98. 98.

    See Article 31(1) VCLT.

  99. 99.

    See Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 20.

  100. 100.

    On these different methods of treaty interpretation, see generally ibid., at paras. 6-10.

  101. 101.

    On the dominant objective or textual approach to treaty interpretation, centring upon the text of the treaty, and critically on the subjective approach with its focus on the identification of the historical will of the contracting states, even where it conflicts with the wording of the treaty, see ibid., at paras. 4-5 (noting that the subjective approach finds its theoretical underpinnings in the will of state doctrine).

  102. 102.

    See International Law Commission, Draft articles on the law of treaties with commentaries, (1966) Yearbook of the International Law Commission, Vol. II, 187, Article 27-28 at para. 8; see e.g. also Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 29; Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 12.

  103. 103.

    See e.g. International Court of Justice, Competence of Assembly regarding admission to the United Nations, Advisory Opinion, [1950] I.C.J. Rep. 4, online: International Court of Justice <http://www.icj-cij.org/docket/files/9/1883.pdf> at 8; Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1420.

  104. 104.

    See International Court of Justice, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, [1962] I.C.J. Rep. 319, online: International Court of Justice <http://www.icj-cij.org/docket/files/46/4887.pdf> at 336 (reserving the flexibility to depart from a clear wording which leads to a result that is incompatible with the spirit, purpose and context of the relevant clause or treaty); cf. on this jurisprudence also Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 15.

  105. 105.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 29.

  106. 106.

    See International Court of Justice, Competence of Assembly regarding admission to the United Nations, Advisory Opinion, [1950] I.C.J. Rep. 4, online: International Court of Justice <http://www.icj-cij.org/docket/files/9/1883.pdf> at 8; Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at paras. 6-7.

  107. 107.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 32 at para. 3. Relevant circumstances surrounding the treaty’s conclusion may be political, social or cultural factors, ibid., at para. 4. Aside from these explicitly mentioned supplementary means, others that are not listed in Article 32 VCLT include interpretative declarations by treaty parties as well as agreements and practice among a subgroup of them which do not rise to the level of an authentic interpretation, as well as a State’s internal documents on the drafting process which were not communicated to other states, ibid., at para. 5.

  108. 108.

    See International Law Commission, Draft articles on the law of treaties with commentaries, (1966) Yearbook of the International Law Commission, Vol. II, 187, Article 27-28 at paras. 18-19. But see Mark E. Villiger’s argument drawn from the wording of Article 32 VCLT, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 32 at para. 7 (equating the English term “supplementary” with the French “complémentaire” rather than with any form of subsidiarity).

  109. 109.

    Cf. Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 5 (finding support for a liberal recourse to the “supplementary means” of Article 32 VCLT in the statements of eight delegations, as opposed to 15 delegations that favoured a restrictive use of them).

  110. 110.

    Ibid., Article 32 at para. 13.

  111. 111.

    Cf. even more generally Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 32 at para. 7-11 (noting that it was difficult to imagine situations where the conditions for recourse to the means of Article 32 would not be met and concluding therefore that “[t]he only restriction in Article 32 is that its means may not be invoked first, at the outset of the interpretation”, ibid. at para. 11). But see also generally on the relationship between the preparatory works mentioned in Article 32 VCLT and the primary means of interpretation according to Article 31 VCLT Ulf Linderfalk, “Is the hierarchical structure of Articles 31 and 32 of the Vienna Convention real or not? Interpreting the rules of interpretation” (2007) 54 NILR 133 (with a comprehensive counter-argument to the “pro-preparatory-work position” and its claims for a more prominent role for the travaux préparatoires).

  112. 112.

    Cf. e.g. Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 10 (arguing that an objective approach to treaty interpretation requires the object and purpose of a treaty to be derived from the text of the treaty itself rather than to be based on speculation and pure supposition).

  113. 113.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 38, 40.

  114. 114.

    I will leave for further discussion below the fact that in many cases commentators rely heavily, if not primarily or even exclusively, on judicial precedents or the works of (other) scholars, rather than engaging in an original treaty interpretation themselves (on this prevalence of the subsidiary means of international legal analysis as mentioned in Article 38(1)(d) ICJ Statute see below, Part 2.3.4).

  115. 115.

    A rather comprehensive analysis of the different available elements can be found in the separate opinion of Judge ad hoc Lauterpacht to the ICJ’s judgment of 11 July 1996 in the Bosnian Genocide Case, see International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, [1993] I.C.J. Rep.325, Lauterpacht J., separate opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/7323.pdf> 407 at paras. 110-115. An example of a treaty analysis in the academic discourse that is relatively comprehensive in terms of the tools of interpretation used is Lepard’s discussion of Articles 24 and 39 of the UN Charter, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 257-258, 270-271.

  116. 116.

    Cf. e.g. International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, [1993] I.C.J. Rep.325, Lauterpacht J., separate opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/7323.pdf> 407 (referring repeatedly to the plain wording of Article I of the Genocide Convention as establishing a duty to prevent genocide in principle, ibid. at paras. 110-113, while finding himself unable, in the light of the limited subsequent practice and in the absence of a full treatment of the subject by the parties, to determine the reach of its extraterritorial scope, ibid. at para. 115); cf. also Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 257, 270-271 (for reliance on the plain language of Articles 24 and 39 UN Charter).

  117. 117.

    See e.g. the separate opinions by several of the judges of the International Court of Justice in the Bosnian Genocide Case, especially International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Tomka J., Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13699.pdf> 310 at paras. 37, 41, 51, 54, 57-59, 65 (criticizing the majority’s analysis of the duty of states not to commit genocide themselves under Article I of the Genocide Convention for not having provided any support from the travaux préparatoires, and referring extensively to the drafting process of the convention in different parts of his separate opinion); see also International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Ranjeva J., Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13693.pdf> 276 at para. 3.

  118. 118.

    See e.g. Susan C. Breau, Humanitarian Intervention: The United Nations and Collective Responsibility (London: Cameron May, 2005), c. 5 (on the Security Council practice on Article 39 UN Charter).

  119. 119.

    Cf. e.g. the rather introductory reference by the ICJ in the Bosnian Genocide Case to the overall system of prevention and punishment in the Genocide Convention, International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13685.pdf> at para. 159, and subsequently to the object and purpose of the convention, ibid. at paras. 161-162. For an exceptionally detailed discussion of the purposes of the Genocide Convention in the context of the duty to prevent genocide, see Joshua M. Kagan, “The Obligation to Use Force to Stop Acts of Genocide: An Overview of Legal Precedents, Customary Norms, and State Responsibility” (2005-2006) 7 San Diego Int’l L.J. 461 at 483-484.

  120. 120.

    See e.g. International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Ranjeva J., Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13693.pdf> 276 at para. 4 (basing the binding force of the duty to prevent genocide in the value that is attributed to this obligation by the law rather than in the particular commitment of the states); International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Shi and Koroma JJ., Joint Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13695.pdf> 279 at para. 5 (pointing to “the intrinsic humanitarian value of the conclusion reached” as their reason to vote in favour of the Court’s finding concerning the prevention of genocide in Srebrenica). In the academic literature on Article I of the Genocide Convention, see especially Brian D. Lepard, who resorts to ethical considerations to strengthen his finding of a conventional duty to prevent genocide, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 272.

  121. 121.

    A notable exception is Brian D. Lepard, who firmly entrenches his discussion of the law of humanitarian intervention in a proper legal methodology developed for this purpose, namely what he labels a “fresh legal approach based on fundamental ethical principles in international law and world religions”, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002). Cf. also International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Shi and Koroma JJ., Joint Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13695.pdf> 279 at para. 4 (explicitly focussing on the original shared understandings). But see William A. Schabas, who explicitly contests that the travaux préparatoires were the decisive means of interpretation and attributes his earlier primary reliance on them to the absence of any other material, see William A. Schabas, Genocide in international law: the crime of crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009) at xiv.

  122. 122.

    See International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Skotnikov J., Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13705.pdf> 366 at 379 (criticizing the majority’s equation of the duty to prevent with the notion of due diligence as being a “commendable appeal to the nations of the world to do all they can to prevent genocide but […] not a proper interpretation of the Convention according to customary international law, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties” and “a political statement which is clearly outside the specific scope of the Genocide Convention”).

  123. 123.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 32, 39 (with references to relevant decisions by different international and domestic courts as well as to government documents). The prevalence of the terms of an international treaty is also confirmed, he suggests, by the fact that their interpretation is rarely reported as an issue in domestic practice, ibid., at para. 33.

  124. 124.

    See on this ibid., at paras. 37-39, 41 (arguing that, given the focus of state and international jurisprudential practice on the wording of a treaty, an emerging norm of customary law would not reflect the single-combined-process approach of the ILC but potentially rather a textual approach).

  125. 125.

    Mark E. Villiger himself only suggests an “emerging customary law” and raises doubts, in view of the rather inconsistent practice, that it will settle in the near future, ibid., at paras. 38-39.

  126. 126.

    See International Law Commission, Draft articles on the law of treaties with commentaries, (1966) Yearbook of the International Law Commission, Vol. II, 187, Article 27-28 at para. 9; Rudolf Bernhardt, “Interpretation in International Law”, in id., ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1420 (for the prevailing opinion on this); Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 15 (for the ICJ’s jurisprudence on this); Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 9, 30-31; Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 64.

  127. 127.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 10.

  128. 128.

    See Article 31(1) VCLT.

  129. 129.

    Cf. e.g. Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 234 and n. 7 (citing jurisprudential pronouncements by the ICJ and its judges on the generous interpretation which is prompted by the elementary considerations of morality and humanity that are endorsed, for instance, in the Genocide Convention, and the broad interpretative approach of the European Court of Human Rights which focuses on effectively safeguarding the human rights guarantees of the European Convention on Human Rights and Fundamental Freedoms) and at 249 (noting that, in the ICJ’s 1996 decision on preliminary objections, the Court had found a duty to exercise universal jurisdiction merely on the basis of the nature of the obligation to punish genocide).

  130. 130.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 11; Jan Klabbers, “Some Problems Regarding the Object and Purpose of Treaties” (1997) 8 The Finnish Yearbook of International Law 138 at 148 (advocating an understanding of the notion “object and purpose” as a “comprehensive blanket term”).

  131. 131.

    Cf. e.g. Fernando R. Tesón, Humanitarian intervention: an inquiry into law and morality, 3rd ed. (Ardsley, NY: Transnational, 2005) at 193-196 (raising the problem of different, potentially conflicting purposes of the UN Charter, namely the maintenance of international peace and the promotion of human rights).

  132. 132.

    See Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 13 (noting that traditionally the object and purpose is indicated in the preamble or a general provision at the beginning of the treaty, but that all the means of interpretation in Articles 31 and 32 VCLT may ultimately be resorted to for its identification); cf. also Jan Klabbers, “Some Problems Regarding the Object and Purpose of Treaties” (1997) 8 The Finnish Yearbook of International Law 138 at 155-159 (noting that the matter of how to identify the object and purpose of a treaty is habitually left unaddressed in works on international legal methodology whereas international case law exhibits some preferences, notably for recourse to preambular provisions and the title, but also to the preceding resolutions of the General Assembly, and criticizing that occasionally even “elements extraneous to the document under consideration” are relied upon).

  133. 133.

    Cf. Jan Klabbers, “Some Problems Regarding the Object and Purpose of Treaties” (1997) 8 The Finnish Yearbook of International Law 138 at 156 (with reference to the ICJ’s opinion on reservations to the Genocide Convention, noting however that the Court eschewed “the Convention’s travaux préparatoires properly speaking” but only used the preceding work as far as it consisted in resolutions on the topic of genocide prevention).

  134. 134.

    See Jan Klabbers, “Some Problems Regarding the Object and Purpose of Treaties” (1997) 8 The Finnish Yearbook of International Law 138 at 160.

  135. 135.

    See e.g. Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 16 (pointing to the customary basis of the principle of effectiveness and noting that, notwithstanding the lack of an express incorporation into Article 31 VCLT, a proper application of this provision in good faith will lead to results that correspond with the principle of effectiveness); Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 12 (basing the principle of effectiveness in consideration of “the treaty’s object and purpose together with good faith”). Cf. also David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 10, 22 on the two different, and potentially even contradictory, aspects of a teleological interpretation: the principle of “effet utile”, which demands that every single provision be interpreted in a way so that it is not made redundant, and the principle of effectiveness, which requires each provision to be read with a view to promoting the object and purpose of the treaty as a whole (noting Article 43 of the UN Charter as an example of a case in which these two principles may compete); Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 62 (citing as two variants of the effectiveness principle that both treaties and individual provisions must have effect).

  136. 136.

    See e.g. David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 21 (endorsing the point of view that “the interpreter adhering to the teleological principle is ‘usually confronted not with a choice of either giving no effect or limited effect to a treaty, but rather with the problem of deciding how effective the treaty should be made.’” [emphasis omitted]).

  137. 137.

    See generally on the different schools of treaty interpretation David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 10-12.

  138. 138.

    On this principle of “maximum effectiveness”, see e.g. ibid., at 10-11.

  139. 139.

    See on this extreme form of a teleological or functional method e.g. Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 1.

  140. 140.

    See generally on the “textual or literal meaning school” David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 11-12.

  141. 141.

    For the essence of the subjective school, see H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties”, (1949) 26 The British Year Book of International Law 48 at 73: “[…]what is properly assumed to be the primary object of interpretation, namely, the revealing of the intention of the parties. The intention of the parties – express or implied – is the law”); see generally on the subjective school of treaty interpretation David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 11.

  142. 142.

    Cf. also Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 60-61 (noting that the dispute between a subjective theory, focussing on the will of the parties, and an objective approach that is primarily concerned with the text of the treaty “is still up-to-date”).

  143. 143.

    See on the amendment proposed by the US and the impact that its rejection has had on the understanding of Article 31 VCLT Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 5, 34, 41.

  144. 144.

    Cf. ibid., Article 31 at para. 4 (on the drafting history of Articles 31 and 32 VCLT and the ILC approach).

  145. 145.

    Ibid., Article 31 at paras. 7-8 (demanding consideration of the context and in particular of the object and purpose of the treaty).

  146. 146.

    See Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 64 (arguing however that “it is logical to give preference to a literal interpretation”); David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 12-13. Cf. also Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) at 334, n. 89 (“It is frequently noted that Article 31 of the Vienna Convention is of the nature of a compromise: it refers to virtually all thinkable interpretative methods.”)

  147. 147.

    See International Law Commission, Special Rapporteur Sir Humphrey Waldock, Third Report on the Law of Treaties, UN Doc. A/CN.4/167 and Add.1-3, (1964) Yearbook of the International Law Commission, Vol. II, 5, Commentary to Articles 70-73 at para. 7. See also David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 13-14. David Schweigman has found that the ICJ, while by and large basing its interpretation on the ordinary meaning of the terms of a treaty, has not been consistent in this approach, but has also resorted to the intentional and teleological methods, i.e. in effect to any of the approaches outlined above, ibid., at 22. Indeed, the ICJ has repeatedly made clear that the rule according to which treaty terms must be given their natural and ordinary meaning is not absolute but must yield where it would result in a meaning “incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained”, see International Court of Justice, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, [1962] I.C.J. Rep. 319, online: International Court of Justice <http://www.icj-cij.org/docket/files/46/4887.pdf> at 336; International Court of Justice, Arbitral Award of 31 July 1989, Judgment, [1991] I.C.J. Rep. 53, online: International Court of Justice <http://www.icj-cij.org/docket/files/82/6863.pdf> at 69-70 (see on this line of jurisprudence also Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 15). In international legal scholarship, Michael Byers and Simon Chesterman have observed a preference for the purposive approach in the works of an increasing number of authors, see Michael Byers & Simon Chesterman, “Changing the rules about rules? Unilateral humanitarian intervention and the future of international law” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 177 at 185. Rudolf Bernhardt similarly notes the important role that teleological interpretation plays in jurisprudential practice, see Rudolf Bernhardt, “Interpretation in International Law”, in: id., ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1420.

  148. 148.

    See Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 59-60.

  149. 149.

    This is the approach suggested by the New Haven variant of a teleological approach, see generally David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 10, n. 30.

  150. 150.

    For the danger that obligations may be introduced through the back door, see Jan Klabbers, “Some Problems Regarding the Object and Purpose of Treaties” (1997) 8 The Finnish Yearbook of International Law 138 at 159 (regarding an approach that identifies the object and purpose by recourse also to elements that are extraneous to the document under consideration); for the risk of functional interpretation turning into “legislation”, see also Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at 14 (noting that the wording of a treaty must therefore provide the limit to a teleological interpretation).

  151. 151.

    Cf. e.g. Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1420 (noting that teleological interpretation in the restricted sense of giving preference to a meaning that contributes to an object and purpose which is clearly indicated in the text is without doubt necessary, whereas a broader teleological approach giving a treaty text “the most extensive possible meaning and effect is neither recognized nor acceptable”); cf. also Jan Klabbers, “Some Problems Regarding the Object and Purpose of Treaties” (1997) 8 The Finnish Yearbook of International Law 138 at 159 (expressing misgivings about identifying the object and purpose of a treaty by means of extraneous elements).

  152. 152.

    See e.g. Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 66-68 (endorsing the view that “it is inadmissible to modify clear treaty provisions justifying it by the object and purpose of the treaty”, which would be a revision rather than an interpretation of the treaty). A different question, which will be dealt with in the next section, is, however, whether even such a clear meaning may undergo changes over the course of time, due to modified understandings by the parties themselves. Cf. also the statement by the ICJ in the advisory opinion on the Interpretation of Peace Treaties that the rule of effectiveness must not lead to an interpretation which would be contrary to the letter and spirit of the treaty, see International Court of Justice, Interpretation of Peace Treaties (second phase), Advisory Opinion, [1950] I.C.J. Rep. 221, online: International Court of Justice <http://www.icj-cij.org/docket/files/8/1875.pdf> at 229; see on this Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1420.

  153. 153.

    Cf. e.g. the reservation by the ICJ in its advisory opinion on the Interpretation of Peace Treaties of 1950, in which the Court emphasized the limits set to the rule of effectiveness by the “letter and spirit” of the treaty, see International Court of Justice, Interpretation of Peace Treaties (second phase), Advisory Opinion, [1950] I.C.J. Rep. 221, online: International Court of Justice <http://www.icj-cij.org/docket/files/8/1875.pdf> at 229; cf. also Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 67-68 (rejecting a teleological approach that would give a treaty the broadest meaning and effect).

  154. 154.

    On the lack of resources, cf. e.g. Nico Krisch, “Article 42”, in Bruno Simma et al., eds., The Charter of the United Nations: A Commentary, 3rd ed., Vol. II (Oxford: Oxford University Press, 2012) 1330 at para. 8 (noting that agreements on forces to be placed at the Security Council’s disposal under Article 43 UN Charter were never concluded); id., “Chapter VII Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, in Bruno Simma et al., eds., The Charter of the United Nations: A Commentary, 3rd ed., Vol. II (Oxford: Oxford University Press, 2012) 1237 at para. 7 (identifying this failure to conclude agreements under Article 43 UN Charter as part of the reason why military measures were largely impossible during the Cold War).

  155. 155.

    Cf. for a similar circumscription of the problem also Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 12 (referring moreover to the notion of treaties as “living instruments” the meaning of which changes as state and society evolve). The terms “evolutive interpretation” and “dynamic interpretation” are used interchangeably, see e.g. Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101. Bernhardt suggests that the term “evolutive” should be preferred as it captures the idea that the interpretation follows, or at least should follow, developments in state and society, see Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 12, n. 3. The issue raised here is whether the terms of a treaty must be given that meaning which would have been attributed to them at the time of the treaty’s conclusion, as the “principle of contemporaneity” would purport, see on this Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 62.

  156. 156.

    Agreements between the parties or any other instrument accepted by them upon the conclusion of the treaty as being related to it, which are to be taken into account as part of the contextual interpretation according to Article 31(2) VCLT, can even amount to an authentic interpretation in the above-defined sense, cf. introduction to Part 2.3.1; cf. also Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 15-16. Agreements and interpretative declarations that fail to reach the required threshold of a uniform interpretation by all the parties may still be relevant as supplementary means of interpretation, ibid., Article 32 at para. 5.

  157. 157.

    See International Law Commission, Draft articles on the law of treaties with commentaries, (1966) Yearbook of the International Law Commission, Vol. II, 187 at 222, para. 16 (explaining the reason for omitting the qualifier “in force at the time of its conclusion” from the paragraph which referred to the rules of international law that were to be taken into account as a means of interpretation); cf. also the Commission’s recent broad reference to this earlier statement in the commentary to its provisionally adopted draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, id., Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 24-25.

  158. 158.

    See International Law Commission, Report of the International Law Commission, Sixtieth session (5 May-6 June and 7 July-8 August 2008), GAOR, 63rd Session, UN Doc. A/63/10 (2008) at para. 353.

  159. 159.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 9-48; id., Report of the International Law Commission, Sixty-sixth session (5 May-6 June and 7 July-8 August 2014), GAOR, 69th Session, UN Doc. A/69/10 (2014) at 166-217; id., Report of the International Law Commission, Sixty-seventh session (4 May-5 June and 6 July-7 August 2015), GAOR, 70th Session, UN Doc. A/70/10 (2015) at 84-103.

  160. 160.

    See Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 14 (arguing that the preparatory work of treaties had always had “a doubtful place” in interpretation since the records were often ambiguous, for instance when it comes to determining whether a declaration made by one delegation only reflected that state’s view or was also shared by others); Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (New York: F.A. Praeger, 1950) at xiv (pointing to the complex procedure in which multilateral conventions are negotiated and ratified, and suggesting that it was doubtful whether something like a “will of the legislator” existed in this case); see also David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 16-17 (with further references).

  161. 161.

    See Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 14.

  162. 162.

    See notably International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13685.pdf> at paras. 163-165; International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Ranjeva J., Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13693.pdf> 276 at para. 3; International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Kreća J. ad hoc, Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13709.pdf> 457, e.g. at paras. 114-115, 120, 127, 132 (noting however also the merely “confirmatory and supportive role of travaux in the interpretation of treaties”, ibid. at para. 135); International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Owada J., Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13697.pdf> 285 at paras. 61-71; International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Mahiou J. ad hoc, Dissenting Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13707.pdf> 381 at paras. 41-45.

  163. 163.

    See International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Shi and Koroma JJ., Joint Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13695.pdf> 279 at para. 4.

  164. 164.

    See e.g. International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16, online: International Court of Justice <http://www.icj-cij.org/docket/files/53/5595.pdf> at para. 53 (acknowledging the “primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion”, but qualifying the concepts under consideration as “not static, but [..] by definition evolutionary”, and submitting moreover that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”); International Court of Justice, Aegean Sea Continental Shelf, Judgment, [1978] I.C.J. Rep. 3, online: International Court of Justice <http://www.icj-cij.org/docket/files/62/6245.pdf> at para. 80.

  165. 165.

    For example, Siobhán Wills admits that the drafters of the 1949 Geneva Conventions may never have intended to imply any legal obligation beyond that of respecting the Conventions and ensuring that their civilian and military authorities complied with it, but notes an evolution in the interpretation of Article 1 of the Conventions as to establish third-party obligations as well, see Siobhán Wills, Protecting civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009) at 102, 110. Another proponent of an analysis that goes beyond the travaux préparatoires is William A. Schabas. In the first edition of his monograph on genocide, which had been published in 2000, he found that the drafting history of the Genocide Convention had paid scarce attention and “only addressed tangentially” the question of a duty to prevent, see William A. Schabas, Genocide in international law: the crime of crimes, 1st ed. (Cambridge: Cambridge University Press, 2000) at 491, 498. Nine years later, in the second edition, Schabas was explicit in that he had not relied primarily on the travaux préparatoires because he considered them the decisive element of treaty interpretation, but only for want of other material, see William A. Schabas, Genocide in international law: the crime of crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009) at xiv. He now particularly relied on recent developments, such as the responsibility to protect doctrine, but also on the ICJ decision in the Bosnian Genocide Case, ibid., at 524.

  166. 166.

    Cf. on this point e.g. Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101 at 102, 114-115, 117, 121-153 (with an overview of the interpretative choices of the European Court of Human Rights in this context). Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 12, 16 (noting that whereas all treaties are living instruments and the problem is hence “[n]ot the existence, but the extent of the evolutive or dynamic element in treaty interpretation”, it gains primarily, though not exclusively, importance in the context of multilateral conventions that lay down general rules to be respected by all state authorities over longer periods of time, namely in the human rights field).

  167. 167.

    See Katarina Månsson, “UN Peace Operations and Security Council Resolutions: A Tool for Measuring the Status of International Human Rights Law?” (2008) 26:1 Netherlands Quarterly of Human Rights 79 at 82.

  168. 168.

    Cf. Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101at 102 (“there is no matter more daunting and complicated than the dynamic interpretation of treaties. This subject, a matter of various publications, still remains confusing and unclear”).

  169. 169.

    On this historical approach to treaty interpretation focussing on the original party intentions, cf. David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 9 (with references).

  170. 170.

    See e.g. Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 15-16, 20-23 (noting that authentic interpretation by the parties through their subsequent practice may ultimately even result in a modification of the treaty).

  171. 171.

    For some authors, such an identification of a basis in the original agreement is in fact a requirement for an evolutive interpretation. For Wolff Heintschel von Heinegg, a dynamic interpretation is only admissible for those terms which are both in the view of the parties and according to general understanding open to evolution, see id., “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 21. For limited recourse to evolutive interpretation depending on the terms of the treaty see also Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 377-379 (with references to judicial precedents).

  172. 172.

    Cf. Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 245 (suggesting that the wording of Article I of the Genocide Convention might have been left deliberately vague so as to allow for an evolution of its meaning in the light of subsequent developments).

  173. 173.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 24-25, provisionally adopted draft conclusion 3 and commentary thereto at para. 4.

  174. 174.

    Cf. Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 14-15.

  175. 175.

    See Jan Klabbers, “International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation” (2003) 50 Netherlands International Law Review 267 at 280 (noting that “[t]o insist on a significant role for historical interpretation is to deny a voice to roughly three quarters of today’s states, simply for not existing independently at the time of the drafting of a great number of treaties”); Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 66.

  176. 176.

    See only International Court of Justice, Kasikili/Sedudu Island (Botswana/Namibia), Judgment, [1999] I.C.J. Rep. 1045, online: International Court of Justice <http://www.icj-cij.org/docket/files/98/7577.pdf> at paras. 48-50 (attributing to Article 31(3) VCLT the quality of customary international law and listing many precedents in which the ICJ had examined the subsequent practice of the parties to a treaty under consideration). See generally on this Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheim’s International Law, 9th ed., Vol. I: Peace (Parts 2 to 4) (Harlow: Longman, 1992) at § 632 n. 20 (citing numerous decisions by international tribunals which have referred to subsequent practice as a means of interpretation); Anthony Aust, Modern Treaty Law and Practice, 3rd ed. (Cambridge: Cambridge University Press, 2007) at 214-215 (noting that reference to subsequent practice in the application of a treaty is well established in international jurisprudence); Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 22 (noting that the subsequent practice of the parties is well established as a means of interpretation in the practice of the Court); Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1421 (noting the important weight that modern tendencies attribute to the practice of states as codified in Article 31(3)(a) and (b) VCLT as well as the recognition that this form of evolutive interpretation had found in court decisions).

  177. 177.

    See International Law Commission, Report of the International Law Commission, Sixty-sixth session (5 May-6 June and 7 July-8 August 2014), GAOR, 69th Session, UN Doc. A/69/10 (2014) at 179, provisionally adopted draft conclusion 7(1).

  178. 178.

    But see the rather cautious approach to this matter by the ILC in its provisionally adopted draft conclusion 7, according to which it has not generally been recognized that a subsequent practice of the parties may amend or modify a treaty, despite some support for this view in international case law, see International Law Commission, Report of the International Law Commission, Sixty-sixth session (5 May-6 June and 7 July-8 August 2014), GAOR, 69th Session, UN Doc. A/69/10 (2014) at 179 and 186-192, provisionally adopted draft conclusion 7(3) and the commentary thereto, at paras. 18-35.

  179. 179.

    Cf. e.g. the jurisprudence of the International Court of Justice on the use of generic terms which follow the evolution of international law, International Court of Justice, Aegean Sea Continental Shelf (Greece v. Turkey), [1978] I.C.J. Rep. 3, Judgment, online: International Court of Justice <http://www.icj-cij.org/docket/files/62/6245.pdf> at paras. 77-80; International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), [1971] I.C.J. Rep. 16, Advisory Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/53/5595.pdf> at paras. 51-53; see on this jurisprudence Vera Gowlland-Debbas, “The Right to Life and Genocide: The Court and an International Public Policy” in Laurence Boisson de Chazournes & Philippe Sands, eds., International Law, the International Court of Justice and nuclear weapons (Cambridge: Cambridge University Press, 1999) 315 at 329.

  180. 180.

    Cf. Article 30(3) and (4)(a) VCLT. An interpretation of the relevant treaty norm in light of international law as it stands at the time of interpretation finds also support in international jurisprudence, see e.g. International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16, online: International Court of Justice <http://www.icj-cij.org/docket/files/53/5595.pdf> at para. 53. The need to take into account changed social conditions has especially been recognized in the decisions of the European Court of Human Rights, see Rudolf Bernhardt, “Interpretation in International Law”, in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1421. On the significance of developments in international law following the conclusion of a treaty see in doctrine e.g. Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheim’s International Law, 9th ed., Vol. I: Peace (Parts 2 to 4) (Harlow: Longman, 1992) at § 633.

  181. 181.

    On the link between teleological and evolutive interpretation and the emergent purpose doctrine, see generally Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101 at 113-117. Bernhardt argues that the object and purpose of those treaties which are to create long-lasting relations may from the outset require that changing circumstances will be taken into account in the interpretation of the treaty, see Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 16-18, 23-24 (suggesting with reference to the jurisprudence of the European Court of Human Rights that evolutive interpretation “normally corresponds to the object and purpose of the treaty”).

  182. 182.

    See on this “inter-temporal problem” also with regard to the object and purpose of a treaty Ulf Linderfalk, “Doing the Right Thing for the Right Reason – Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties” (2008) 10 International Community Law Review 109 at 137-140; see also Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101 at 112.

  183. 183.

    See G.G. Fitzmaurice, “The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points” (1951) 28 The British Year Book of International Law 1 at 8, n. 2 (conceiving what he calls “the theory of ‘emergent purpose’”); id., “The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Treaty Points” (1957) 33 The British Year Book of International Law 302 at 308; cf. also generally on the “emergent purpose approach” Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 68.

  184. 184.

    Cf. also Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 260 (noting a “discernable trend in the interpretation of binding treaty norms that considers principles and ‘international values’ of the day”).

  185. 185.

    On different, more or less rigorous tests of party intentions concerning a dynamic interpretation see Malgosia Fitzmaurice, “Dynamic (Evolutive) Interpretation of Treaties” (2008) 21 Hague Yearbook of International Law 101 at 118-120.

  186. 186.

    This approach is in line with current trends in the general doctrine of treaty interpretation, see e.g. Rudolf Bernhardt, “Interpretation in International Law”, in: id., ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1419, 1421 (noting that the original intentions of the parties upon drafting the treaty are no longer the primary consideration but have become increasingly less prominent in the treaty interpretation process as subsequent practice has come to be more and more widely recognized); id., “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 14-15 (for a secondary importance only of the original intentions of the contracting parties). Several authors argue that the travaux préparatoires have no prominent place in treaty interpretation today, see e.g. Laurence Boisson de Chazournes & Luigi Condorelli, “Common Article 1 of the Geneva Conventions revisited: Protecting collective interests” (2000) 837 International Review of the Red Cross 67 at 69 (dismissing an argument built on the travaux préparatoires of the 1949 Geneva Conventions as “a minor consideration, since the historical interpretation of an international instrument can never prove decisive in identifying the current status of a legal norm”). This understanding is also reflected in the approach taken by scholars and judges who have inquired in more detail into the interpretation of certain treaties on atrocity crimes, such as Schabas, who has given some consideration to the travaux préparatoires of the Genocide Convention in the first edition of his monograph on genocide in international law, see William A. Schabas, Genocide in international law: the crime of crimes, 1st ed. (Cambridge: Cambridge University Press, 2000) at 448-452, and also in the second edition, see William A. Schabas, Genocide in international law: the crime of crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009) at 520 and 534-539, in which he explicitly notes, however, that his primary reliance on the travaux in the first edition had been due to a lack of other evidence to be analysed and not because they were decisive for the interpretation, ibid. at xiv.

  187. 187.

    See generally and in detail International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 31-41, provisionally adopted draft conclusion 4 and commentaries thereto.

  188. 188.

    Cf. International Law Commission, Report of the International Law Commission, Sixty-sixth session (5 May-6 June and 7 July-8 August 2014), GAOR, 69th Session, UN Doc. A/69/10 (2014) at 169, provisionally adopted draft conclusions 8(1)-(2) and 9(1).

  189. 189.

    For the term “conventional community” see Georges Abi-Saab, “The Security Council Legibus Solutus? On the Legislative Forays of the Council”, in Laurence Boisson de Chazournes & Marcelo G. Kohen, International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-Debbas (Leiden: Martinus Nijhoff, 2010) 23 at 33.

  190. 190.

    Article 31(3) VCLT: “There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) […]”.

  191. 191.

    See e.g. Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 355; International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 32, para. 7, and at 34, para. 11.

  192. 192.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 33-34, paras. 9-10.

  193. 193.

    Cf. Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 355; cf. International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 33-34, at para. 9.

  194. 194.

    Cf. International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 33-34, paras. 9-10 (observing a difference between the two concepts only in so far as the common understanding of the states parties can be identified from a subsequent agreement as such, which hence constitutes an authentic means of interpretation ipso facto, whereas subsequent practice consists in individual acts that need to be considered in their combination to demonstrate a common position concerning the meaning of the treaty).

  195. 195.

    Cf. International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013), at 31-32, provisionally adopted draft conclusion 4(1)-(2) and commentary thereto, at para. 5; Richard K. Gardiner, Treaty interpretation (Oxford: Oxford University Press, 2008) at 216-222; Anthony Aust, Modern Treaty Law and Practice, 3rd ed. (Cambridge: Cambridge University Press, 2013) at 213; Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheim’s International Law, 9th ed., Vol. I: Peace (Parts 2 to 4) (Harlow: Longman, 1992) at § 630; Alfred Verdross & Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd ed. (Berlin: Duncker & Humblot, 1984) at para. 778 fn. 7.

  196. 196.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 31 and 33-35, provisionally adopted draft article 4(1) and the commentary thereto, at paras. 9-10 and 12-13.

  197. 197.

    Ibid., at 32, paras. 5-6.

  198. 198.

    See Richard K. Gardiner, Treaty interpretation (Oxford: Oxford University Press, 2008) at 219, 222.

  199. 199.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 34, para. 12.

  200. 200.

    Cf. Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 355.

  201. 201.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 34, para. 11 [footnote omitted].

  202. 202.

    Ibid., at 35, para. 16.

  203. 203.

    See Richard K. Gardiner, Treaty interpretation (Oxford: Oxford University Press, 2008) at 226.

  204. 204.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 35-36, para. 17.

  205. 205.

    See Richard K. Gardiner, Treaty interpretation (Oxford: Oxford University Press, 2008) at 227. According to the list which has been adopted by James Crawford almost literally from Ian Brownlie’s own editions of Principles of International Law, “[t]he material sources of custom are manifold and include: diplomatic correspondence, policy statements, press releases, the opinions of government legal advisers, official manuals on legal questions (e.g. manuals of military law), executive decisions and practices, orders to military forces (e.g. rules of engagement), comments by governments on ILC drafts and accompanying commentary, legislation, international and national judicial decisions, recitals in treaties and other international instruments (especially when in ‘all states’ form), an extensive pattern of treaties in the same terms, the practice of international organs, and resolutions relating to legal questions in UN organs, notably the General Assembly”, see James Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012) at 24; Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008) at 6-7 [references omitted].

  206. 206.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 34-36, paras. 13-14 (on subsequent agreements) and 17-19 (on subsequent practice). On the required link between a subsequent practice and the treaty in question, see e.g. also Wolfram Karl, Vertrag und spätere Praxis im Völkerrecht (Treaty and Subsequent Practice in International Law): Zum Einfluß der Praxis auf Inhalt und Bestand völkerrechtlicher Verträge (Berlin: Springer, 1983) at 118; Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 14.

  207. 207.

    See Article 31(3)(a) VCLT.

  208. 208.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 34-35, para. 13.

  209. 209.

    See Article 31(3)(b) VCLT; International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 35-36, paras. 17-19.

  210. 210.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 36, para. 19.

  211. 211.

    Ibid.

  212. 212.

    Ibid., at 34, para. 12, and at 35, para. 5.

  213. 213.

    Ibid., at 34, para. 12, and at 35, para. 15.

  214. 214.

    See International Law Commission, Report of the International Law Commission, Sixty-sixth session (5 May-6 June and 7 July-8 August 2014), GAOR, 69th Session, UN Doc. A/69/10 (2014) at 197, provisionally adopted draft conclusion 9(2)(2).

  215. 215.

    Cf. already International Law Commission, Draft articles on the law of treaties with commentaries, (1966) Yearbook of the International Law Commission, Vol. II, 187, Commentary to Article 27 at para. 15 (explaining that the deletion of the word “all” from an earlier draft was “to avoid any possible misconception that every party must individually have engaged in the practice where it suffices that it should have accepted the practice”); see also Alexander Orakhelashvili, The interpretation of acts and rules in public international law (Oxford: Oxford University Press, 2008) at 355; Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 15, 19; Anthony Aust, Modern Treaty Law and Practice, 3rd ed. (Cambridge: Cambridge University Press, 2013) at 214-216.

  216. 216.

    See WTO Appellate Body Report, Japan – Alcoholic Beverages II, WT/DS/8/AB/R, WT DS10/AB/R and WT/DS11/AB/R, 4 October 1996, online: World Trade Organization <https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds8_e.htm> at 12-13.

  217. 217.

    See Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (1999) 42 GYIL 11 at 22 (asserting that unanimity was not required and a simple majority not sufficient); cf. also International Law Commission, Report of the International Law Commission, Sixty-sixth session (5 May-6 June and 7 July-8 August 2014), GAOR, 69th Session, UN Doc. A/69/10 (2014) at 197, provisionally adopted draft conclusion 9(2)(1) (noting that the number of parties to a treaty that have to actively engage in a subsequent practice under Article 31(1)(b) VCLT may vary).

  218. 218.

    See Wolfram Karl, Vertrag und spätere Praxis im Völkerrecht (Treaty and Subsequent Practice in International Law): Zum Einfluß der Praxis auf Inhalt und Bestand völkerrechtlicher Verträge (Berlin: Springer, 1983) at 40 (employing the term “quasi-authentic interpretation” for the case in which the agreement between the parties is established with reference to their subsequent practice); cf. also Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 15, 22.

  219. 219.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 31, 34 and 37, provisionally adopted draft conclusion 4(3) and commentaries thereto, at paras. 12, 22 and 23; Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at paras. 15, 22 and Article 32 at para. 5; Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008) (granting the subsequent practice by individual parties “some probative value”); Agnieszka Szpak, “A Few Reflections on the Interpretation of Treaties in Public International Law” (2005) 18 Hague Yearbook of International Law 59 at 65-66.

  220. 220.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 34 and 37, paras. 12, 22 and 23.

  221. 221.

    See already above, text accompanying note 111.

  222. 222.

    Cf. e.g. the restrictive approach of Gardiner, for whom statements and records of a position on treaty interpretation may only count as subsequent practice in the application of the treaty if they are either “linked to something actually done” or constitute “an official act or committed policy that is or will be implemented”, Richard K. Gardiner, Treaty interpretation (Oxford: Oxford University Press, 2008) at 227.

  223. 223.

    See below, Part 2.3.2.2, and especially text accompanying notes 266 to 268.

  224. 224.

    Brian D. Lepard, for instance, even upholds a duty under Article I of the Genocide Convention to take preventive action despite finding that “many states have simply ignored” this duty, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 272 (relying again on ethical considerations to reinforce his legal claim about the conventional duty to prevent genocide).

  225. 225.

    Aust mentions, for instance, the 1996 UN General Assembly Declaration on measures to eliminate international terrorism, according to which terrorist acts are contrary to the purposes and principles of the UN, see UN General Assembly, Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, GA Res. 51/210, UN GAOR, 51st Sess., 88th Plen. Mtg., UN Doc. A/Res/51/210 (17 December 1996), Annex, at op. para. 2. As Aust observes, this declaration contains an agreement on the interpretation of the UN Charter and at the same time of the 1951 Refugees Convention, which makes reference to the purposes and principles of the UN Charter in Article 1(F)(c), see Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (entered into force 22 April 1954); see Anthony Aust, Modern Treaty Law and Practice, 3rd ed. (Cambridge: Cambridge University Press, 2013) at 213. Cf. also Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 261 (suggesting that an authentic interpretation of Article I of the Genocide Convention could namely be brought about by a General Assembly resolution or statements in the Security Council which express a serious commitment by members states to take specific measures to prevent genocide).

  226. 226.

    See International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), GAOR, 68th Session, UN Doc. A/68/10 (2013) at 41, provisionally adopted draft conclusion 5(1).

  227. 227.

    Cf. for the necessary distinction between the practice of the organization and that of its members already Georg Ress, “Auslegung” in Bruno Simma, ed., Charta der Vereinten Nationen: Kommentar (München: C.H. Beck, 1991) at paras. 28-33.

  228. 228.

    Cf. Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008) at 634 (suggesting that those states that had been outvoted might not be bound by the practice established on the basis of the majority decision); cf. also Georg Ress, “Auslegung” in Bruno Simma, ed., Charta der Vereinten Nationen: Kommentar (München: C.H. Beck, 1991) at para. 32 (acknowledging that the practice of the UN organs may not be counted as an agreed practice of the membership if it is governed by the majority rule and has been opposed by a minority that is not entirely insignificant).

  229. 229.

    Cf. also International Law Commission, Report of the International Law Commission, Sixty-fifth session (6 May-7 June and 8 July-9 August 2013), UN GAOR, 68th Session, UN Doc. A/68/10 (2013) at 41 and 45, provisionally adopted draft conclusion 5(2) and commentaries thereto, at paras. 13-14.

  230. 230.

    Cf. specifically for the interpretation of the constituent instruments of an international organization International Law Commission, Report of the International Law Commission, Sixty-seventh session (4 May-5 June and 6 July-7 August 2015), GAOR, 70th Session, UN Doc. A/70/10 (2015) at 88-89 and 94, provisionally adopted draft conclusion 11(2) and commentary thereto, at para. 15.

  231. 231.

    Cf. ibid., at 88-89 and 98-102, provisionally adopted draft conclusion 11(3) and commentary thereto, at paras. 26-37 (with reference to international case law, including by the ICJ).

  232. 232.

    Cf. ibid., at 100, para. 32 and n. 354 (noting that the ILC might reconsider provisionally adopted draft conclusion 4(3) dealing with “other subsequent practice” as a supplementary means of interpretation in order to clarify whether this category should comprise the practice of an international organization as such).

  233. 233.

    For a differentiation according to the type of the treaty or the interests which it enshrines, cf. e.g. Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), Article 31 at para. 40 (noting that the general rule of treaty interpretation according to Article 31 VCLT grants considerable flexibility to the interpreting agency, enabling it inter alia “to adapt the various means of interpretation to the type of treaty (bi- and multilateral treaties, human rights treaties, etc.)”); Rudolf Bernhardt, “Interpretation in International Law”, in: id., ed., Encyclopedia of Public International Law, Volume II (1995), 1416 at 1421 (submitting that the recognized rules of treaty interpretation allow for the necessary differentiations, such as between law-making treaties and bilateral treaties establishing reciprocal obligations, namely as regards the relevance of the object and purpose); cf. also International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, [1993] I.C.J. Rep.325, Lauterpacht J., separate opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/7323.pdf> 407 at para. 3 (pointing to the urgency and gravity of the case at hand which should “exclude any narrow or overly technical approach to the problems involved”); Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 236-237, 243-248 (criticizing that Lauterpacht J. had not followed through with this commitment and had shied away from a more flexible approach that would have been warranted in dealing with a treaty of a humanitarian character such as the Genocide Convention).

  234. 234.

    See e.g. Wolff Heintschel von Heinegg, “Die völkerrechtlichen Verträge als Hauptrechtsquelle des Völkerrechts”, in: Knut Ipsen, ed., Völkerrecht, 6th ed. (München: Beck, 2014), § 12 at para. 12 (noting that it is a logic dictate to begin with the ordinary meaning of a wording, which then is to be placed in its systematic context and in the light of the treaty’s purpose).

  235. 235.

    On the usefulness of the travaux préparatoires as a starting point for interpretation cf. also David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague: Kluwer Law International, 2001) at 19.

  236. 236.

    On the need for interpretation created by the compromise nature of an agreement, see ibid., at 8.

  237. 237.

    Cf. e.g. ibid., at 21. This observation corresponds to Robert Kolb’s hermeneutical scheme, in which the canons of interpretation represent only one category of positive elements alongside e.g. the treaty text. They do not, however, dispose of the need to complement the interpretative guidelines with other aspects, such as a recognition of relevant values or account of the respective outcome of different constructions of the treaty meaning, see Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 881-884. The existence of a discretionary element in treaty interpretation had already been acknowledged by Special Rapporteur Waldock, see International Law Commission, Special Rapporteur Sir Humphrey Waldock, Third Report on the Law of Treaties, UN Doc. A/CN.4/167 and Add.1-3, (1964) Yearbook of the International Law Commission, Vol. II, 5, Commentary to Articles 70-73 at para. 6.

  238. 238.

    Cf. in detail Part. 4.4. below.

  239. 239.

    Cf. Tullio Treves, “Customary International Law”, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at para. 40 (noting that “customary international law rules normally apply to all States”). Yet, in principle, it is also possible that customary rules are created within a “restricted community of States”, namely in the form of regional customary law, ibid. Also, states objecting persistently to the emergence of a rule of customary international law during its formative process may remain unbound by it pursuant to the persistent objector rule, cf. Olufemi Elias, “Persistent Objector”, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at para. 1.

  240. 240.

    See e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 276.

  241. 241.

    See only Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at paras. 211-215, with further references. For Pellet, dividing the definition of custom into the “material” element of practice and the “psychological” element of opinio juris provides “an extremely useful tool” for identifying customary rules, even though he notes that this division had not always rigorously been applied by the ICJ nor been envisaged by the Advisory Committee of Jurists, which had drafted Article 38 of the Statute of the Permanent Court of International Justice, the predecessor of Article 38 of the ICJ Statute, in 1920, ibid. at para. 212.

  242. 242.

    See e.g. Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 223-224; Carsten Stahn, “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?” (2007) 101 American Journal of International Law 99 at 101.

  243. 243.

    See e.g. Max Matthews, “Tracking the Emergence of a New International Norm: The Responsibility to Protect and the Crisis in Darfur” (2008) 31 Boston College International & Comparative Law Review 137 at 152 (submitting that “Security Council resolutions show that the U.N. is implementing R2P to a certain extent” and that “[b]y calling for an international military force to end the violence in Darfur in resolutions that explicitly invoke R2P, the Security Council is adding further credence to the principle’s legal weight”); Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 223-224 (submitting that the acceptance of R2P in the UN bodies since 2005 has established a duty for states with particularly close ties to the state in crisis to ensure that the crisis is dealt with by the Security Council and that possible and reasonable measures are taken to prevent atrocities in neighbouring states).

  244. 244.

    See especially Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 207-209, 214-220.

  245. 245.

    See e.g. Verlage, who takes into account the reluctance of Western States in practice to intervene militarily where their own interests are not concerned, ibid., at 212; Lepard, who considers the practice of “a half century of adherence to the [Genocide] Convention by a large majority of U.N. member states” as sufficient to establish a customary legal duty to prevent genocide. Note that Lepard reaches this result against the backdrop of fundamental ethical principles and openly admits that there may be doubts about the customary law status of the duty to prevent genocide under “traditional sources analysis”, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 272-273. But see Fernando R. Tesón, Humanitarian intervention: an inquiry into law and morality, 3rd ed. (Ardsley, NY: Transnational, 2005), c. 7-8 (allotting one chapter each to the practice of unilateral and collective humanitarian intervention); Susan C. Breau, Humanitarian Intervention: The United Nations and Collective Responsibility (London: Cameron May, 2005), c. 5; Max Matthews, “Tracking the Emergence of a New International Norm: The Responsibility to Protect and the Crisis in Darfur” (2008) 31 Boston College International & Comparative Law Review 137 (analysing specifically the significance of the international response to the crisis in Darfur for the crystallization of R2P into a binding legal norm).

  246. 246.

    See e.g. the comparatively broad analysis of material sources on duties to protect by Verlage, who examines the language used in the World Summit Outcome Document, its subsequent endorsement in Security Council resolutions, as well as declarations made by individual states, and also alludes, although in a rather cursory fashion, to the actual practice of Western states, Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 205-224.

  247. 247.

    For an introduction to the traditional approach to customary international law with references to scholarship and practice as well as to its advantages see Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 88-89.

  248. 248.

    See on the role of multilateral fora in contemporary international law-making Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 543-550.

  249. 249.

    See on this point Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 88 (noting that “practice had priority over opinio juris; deeds were what counted, not just words”). Simma and Alston, ibid., as well as Niels Petersen note that authors such as Guggenheim and Kelsen had temporarily even proposed to rely exclusively on state practice and to drop opinio juris as a constituent element of international custom, Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 278 and n. 7.

  250. 250.

    See for this observation e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 280 (pointing to a current in legal scholarship for which state practice is no more than an auxiliary means in determining the existence of jus cogens as the one element on which the customary law process is concentrated). A differentiated approach has been proposed by Tesón, who considers it a “positivist mistake” to attempt to explain norms which embody “fundamental moral principles” by analysing state practice, while he accepts this method for those rules which do not enshrine such fundamental principles and simply serve to coordinate interstate relations, see Fernando R. Tesón, “Two Mistakes about Democracy” (1998) 92 American Society of International Law: Proceedings of the Annual Meeting 126 at 127-129.

  251. 251.

    On this “dubious metamorphosis” of state practice, see Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992)12 The Australian Year Book of International Law 82 at 89-90. For the broadened scope of relevant practice, see also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 278; for a more extensive review of the historical role of state practice under different theories of customary international law, ibid. at 294-301.

  252. 252.

    See Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 99-100.

  253. 253.

    Cf. Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 334-336; see on Schachter’s “line of argument in favor of a customary law of human rights based on the Universal Declaration” also Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 92-93.

  254. 254.

    Cf. on this trend Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 89-90.

  255. 255.

    See on this approach ibid., at 89-90.

  256. 256.

    See on this point e.g. ibid., at 88; Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 278; cf. also Christian Dominicé, “Methodology of International Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume III (1997), 354 at 357-358 (acknowledging however the need to complement this inductive process with other considerations, including ethical reasoning).

  257. 257.

    On this evolution in customary international law analysis, see e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 278-284.

  258. 258.

    See Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 89-90.

  259. 259.

    See e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 300-301 (linking the traditional inductive form of customary law analysis to the sociological positivism of Auguste Comte).

  260. 260.

    See e.g. for a critical appraisal of the ICJ’s judgment in the Nicaragua Case Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 96-97. Cf. also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 280 (noting the “declining importance of state practice as a constituent element” in the jurisprudence of the ICJ, such as in the Nicaragua Case; cf. also his observation that, by lack of a an adequate method to prove the elements of international custom, customary law arguments have always suffered from “a considerable degree of arbitrariness”, ibid. at 277, and that “references to state practice are often a mere formality” and certain norms of customary law, especially of human rights law, are accepted despite systematic violations by many states, ibid. at 279-280). As Pellet critically notes, even where both elements have been required, the Court has played General Assembly resolutions as “judicial jokers” to evidence both opinio juris and state practice, see Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at para. 238. With a view to scholarship, see e.g. Simma and Alston, who criticize that many US lawyers have not felt any particular need to engage in much serious debate about prerequisites of customary international law, Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 86-87. For some authors, declarations of multilateral fora count as state practice or opinio juris, see Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 543-550 (with further references for this view in n. 64, and suggesting that “[i]n theory […] one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum could be sufficient to establish new international law.”).

  261. 261.

    Cf. e.g. Frederic L. Kirgis Jr., “Custom on a Sliding Scale” (1987) 81 American Journal of International Law 146 at 147-148; Fernando R. Tesón, “Two Mistakes about Democracy” (1998) 92 American Society of International Law: Proceedings of the Annual Meeting 126 at 127-129.

  262. 262.

    See on this point with examples of international practice Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 548-550.

  263. 263.

    Ibid., at 545-546.

  264. 264.

    See Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 334, 338; see also Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 92. These difficulties arise specifically where a purported norm is prohibitive, requiring abstention from acts rather than positive action, cf. e.g. the discussion by Simma and Alston of how to identify jus cogens norms requiring abstention, ibid., at 103-104. To the extent that a rule requires positive action, by contrast, the determination of whether the required general practice exists may be clearer.

  265. 265.

    On the need to adapt the doctrine of customary law to the increased number and diversity of states participating in the law-making process, see e.g. Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 543, 550; Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 254.

  266. 266.

    See Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 83, 107 (criticizing the “dubious operation” of a “progressive, streamlined theory of customary law, more or less stripped of the traditional practice requirement” which allows analysts “to find a customary law of human rights wherever one is needed”).

  267. 267.

    See Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 282-283 (with further references to those authors who stress the notion of international custom and the definition of customary law in Article 38(1)(b) of the ICJ Statute); for a differentiated view cf. Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 545-547 (suggesting that the answer as to whether the work of a multilateral forum needs to find a confirmation also in opinio juris and/or state practice originating outside this forum depends on the particular facts of each given case, with “one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum” theoretically being sufficient for the establishment of new law).

  268. 268.

    See Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 83, 98, 102-110.

  269. 269.

    But see the commentary by Alain Pellet, who criticizes the tendency of the ICJ to count General Assembly resolutions twice and instead suggests that two different forms of practice must be distinguished, a general practice as the one element of customary law and practice which confirms the opinio juris as the other element, with resolutions of international organizations falling into the latter category, see Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at 219, 226-227, 238 (more precisely, in fact, Pellet considers the attitude of the individual states towards such instruments as the actual practice which may confirm an opinio juris, ibid. at 227, 231, 238). For this criticism see also Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 96-97.

  270. 270.

    Cf. on the concept of general principles of law in more detail below in Part 2.3.3.

  271. 271.

    See on this point e.g. Brian D. Lepard, Customary international law: a new theory with practical applications (Cambridge: Cambridge University Press, 2010) at 9, 22-23, 112-121 (with further references); see also Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 52-52, 61-62.

  272. 272.

    Cf. only Jack L. Goldsmith & Eric A. Posner, “A Theory of Customary International Law” (1999) 66 U. Chicago L. Rev. 1113 at 118; American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States, vol. 1 (St. Paul, MN: American Law Institute, 1987) at 30 (finding this circularity “most troublesome”); Brian D. Lepard, Customary international law: a new theory with practical applications (Cambridge: Cambridge University Press, 2010) at 9 (submitting that “the definition requires, in some sense, that their belief in its legally binding character is erroneous”). This issue of how customary law can ever begin has also been recognized as a difficult conceptual question by Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 50.

  273. 273.

    See Louis Henkin, “International Law: Politics, Values and Functions: General Course on Public International Law” (1990) 216 Recueil des Cours 9 at 49 (“There are also numerous gray areas where at a particular time of inquiry it is uncertain whether practice has jelled into norm, but more time may resolve such uncertainties”).

  274. 274.

    Even where the Latin phrase “opinio juris sive necessitatis” is reproduced in full, its second element is regularly disregarded, cf. e.g. International Court of Justice, North Sea Continental Shelf, Judgment, [1969] I.C.J. Rep. 3, online: International Court of Justice <http://www.icj-cij.org/docket/files/52/5561.pdf> at para. 77 (“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.”); International Court of Justice, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] I.C.J. Rep. 14, online: International Court of Justice <http://www.icj-cij.org/docket/files/70/6503.pdf> at para. 207; American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States, vol. 1 (St. Paul, MN: American Law Institute, 1987) at 25 (elaborating only on the sense of obligation in its comments on the sources of law: “c. Opinio Juris. For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law”); Tullio Treves, “Customary International Law”, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at para. 8 (describing the subjective element of customary international law as “the belief that such behaviour depends on a legal obligation (opinio juris sive necessitatis)”). Elsewhere, the subjective or psychological element of customary international law is simply referred to as “opinio juris” ab initio, see e.g. International Court of Justice, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, [1985] I.C.J. Rep. 13, online: International Court of Justice <http://www.icj-cij.org/docket/files/68/6415.pdf> at para. 27 (“It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States”). Paul De Visscher, “Cours général de droit international public” (1972) 136 Recueil des Cours 1 at 70.

  275. 275.

    See Brian D. Lepard, Customary international law: a new theory with practical applications (Cambridge: Cambridge University Press, 2010), chap. 7 (citing some authorities in international doctrine and jurisprudence for such a revision, ibid. at 118-119).

  276. 276.

    See e.g. International Court of Justice, Colombian-Peruvian asylum case, Judgment, [1950] I.C.J. Rep. 266, online: International Court of Justice <http://www.icj-cij.org/docket/files/7/1849.pdf> at 276-277; International Court of Justice, Case concerning Right of Passage over Indian Territory, Merits, Judgment, [1960] I.C.J. Rep. 6, online: International Court of Justice <http://www.icj-cij.org/docket/files/32/4521.pdf> at 40; see also generally Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at para. 221.

  277. 277.

    See Allen Buchanan, “Reforming the international law of humanitarian intervention” in J.L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003) 130 at 134 (noting that “how widespread the new pattern of state behavior must be before a new norm can be said to have ‘crystallized’ is not only disputed but probably not capable of a definitive answer”).

  278. 278.

    See e.g. Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 536.

  279. 279.

    Cf. e.g. Olufemi Elias, “Persistent Objector” in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at paras. 1-3.

  280. 280.

    See International Court of Justice, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] I.C.J. Rep. 14, online: International Court of Justice <http://www.icj-cij.org/docket/files/70/6503.pdf> at para. 186; Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 338; Antonio Cassese, International Law, 2nd ed. (Oxford: Oxford University Press, 2005) at 157; see also Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 64.

  281. 281.

    See Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law” (1985) 178 Recueil des Cours 9 at 338.

  282. 282.

    Cf. ibid., at 335-338 (refusing to minimize the importance of negative practice in the human rights field as such but emphasizing the need for the legal analyst to make “judgments on the basis of the apparent intensity and seriousness of the condemnation of State conduct in particular cases and in more generalized resolutions”).

  283. 283.

    See Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 545-546 (noting considerable flexibility as regards the required generality of state practice).

  284. 284.

    Ibid., at 545-547 (suggesting an assessment based on the particularities of each given case).

  285. 285.

    See on this effect of values tipping the balance in favour of recognizing a norm as part of customary law Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 272-273.

  286. 286.

    Article 38(1)(c) ICJ Statute.

  287. 287.

    See Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002) at 106.

  288. 288.

    On different and in particular critical views on the usage of the term “civilized nations” in Article 38(1)(c) of the ICJ Statute and on modern currents reading it out of the provision, see James Sloan, “Civilized Nations” in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at paras. 31-33.

  289. 289.

    Concerns over the incompleteness of treaty law and international custom were the driving force behind the drafters’ decision to include general principles as a source of law in Article 38 ICJ Statute, see Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 516.

  290. 290.

    Cf. e.g. Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at paras. 254-266; Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 102 (admitting that “the dominant view understands this concept [of general principles of law recognized by civilized nations] in a narrow sense, as referring to legal principles developed in foro domestico.”).

  291. 291.

    For an overview of the strand of opinion demanding that general principles of law be based in national legal systems and for references to prominent proponents of this view, see Béla Vitanyi, “Les positions doctrinales concernant le sens de la notion de ‘principes généraux de droit reconnus par les nations civilisées’” (1982) 82 Revue Générale de Droit International Public 48 at 69-102. See on this approach and its argumentative basis also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 306-307 (with references).

  292. 292.

    See Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at paras. 42-48; Giorgio Gaja, “General Principles of Law” in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law, Vol. IV (Oxford: Oxford University Press, 2012) 370 at paras. 4-5.

  293. 293.

    See Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 516.

  294. 294.

    Pellet admits that the Committee of Jurists did not agree on the meaning of “general principles of law recognized by civilized nations” in 1920, even though he finds support for his narrower understanding of general principles as being derived from the forum domesticum in the explanations by Lord Phillimore, on whose proposal the final version of Article 38 (1) ICJ Statute was based, see Alain Pellet, “Article 38” in: Andreas Zimmermann, Christian Tomuschat & Karin Oellers-Frahm, eds., The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006) at 250, 260.

  295. 295.

    See Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 516; Giorgio Gaja, “General Principles of Law” in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law, Vol. IV (Oxford: Oxford University Press, 2012) 370 at para. 3. But see Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at para. 260 (quoting Lord Phillimore, the author of the proposal that was finally adopted in 1920, with an explicit reference to principles accepted in foro domestico).

  296. 296.

    See Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 517; Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at para. 254.

  297. 297.

    See e.g. Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 102 (noting that many writers have argued against the necessity to limit general principles to those developed in foro domestico; the authors themselves also subscribe to the view that general principles of law can be recognized internationally first and “then percolate down into domestic fora”); Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 284-286, 294, 307-310 (arguing that general principles of international law may, without contradiction to the doctrine of sources as outlined in Article 38(1) of the ICJ Statute, be understood today to be established also through multilateral resolutions such as those of the UN General Assembly). See also Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 517 (arguing that even though the original understanding of Article 38(1)(c) ICJ Statute may have been limited to principles recognized in national law, the “necessities of the international judiciary” allow for a broader understanding, including principles that originate on the international plane).

  298. 298.

    See for this observation e.g. Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 536. Pellet observes that the PCIJ had never expressly referred to Article 38(1)(c) of its statute, whereas the ICJ had made such explicit reference to Article 38(1)(c) ICJ Statute in a mere four cases, see Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at 253, n. 718 and 719 (noting at the same time that implicitly the courts had nonetheless resorted to general principles).

  299. 299.

    Cf. Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 536. Cf. also Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at 259 (with references to the different notions that the Court has applied to circumscribe such principles, ibid., n. 736-739), 266. For Pellet, the composition of the Court, which is pursuant to Article 9 ICJ Statute to represent “the principal legal systems of the world” however naturally results in an intuitive comparison of the principles of law recognized by these legal systems, ibid. at 266. Judge Tanaka indeed subscribes to a natural law view of general principles of law in his dissenting opinion in the South West Africa Cases, distinguishing clearly between law-making consent on the one hand and the recognition required by Article 38(1)(c) ICJ Statute on the other, which was “of a very elastic nature” and accounted for the existence of legal principles independently from the will of states, see South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6, Tanaka J., dissenting opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/47/4969.pdf> 250 at 294-300.

  300. 300.

    For this practice of the ICJ of simply asserting customary rules without inquiring into state practice or opinio juris see Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at para. 235.

  301. 301.

    See for this evaluation of the decisions in the Corfu Channel Case, the Barcelona Traction Case, the advisory opinion on Reservations to the Genocide Convention, the Tehran Hostages Case and the Nicaragua Case Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 105-106.

  302. 302.

    See also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 306 (finding implicit recognition of principles not supported by state practice, for instance, in the deductive reasoning of the ICJ in the Nuclear Tests Case). See also Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 522.

  303. 303.

    Mosler suggests that up to four categories of general principles of law may be or have indeed been distinguished: principles generally recognized in domestic law, general principles originating in international legal relations, principles that are a necessary prerequisite to any legal society and, as a sub-class of this latter category or as a distinct notion, principles of legal logic, Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 511-515. According to his outline of these different categories, humanitarian values may both be an inherent principle of any legal society, namely to the extent that the protection of human dignity is at stake, or enter the realm of international law through acceptance on the international plane, ibid. at 524-525. In the latter case, they are not the product of positive law-making, but emerge from the conduct of states in their international relations and hence still require an evaluation of international practice, ibid. at 513, 517. As regards those principles that are held to be indispensible for the functioning of a legal system, there is continuing debate about their ultimate foundation, either in natural law or in some form of general consensus, which could be expressed, inter alia, in resolutions of world-wide international bodies, ibid. at 514.

  304. 304.

    See especially South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6, Tanaka J., dissenting opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/47/4969.pdf> 250 at 298; cf. also on this Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 291-292.

  305. 305.

    Cf. also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 293 (underlining that legal principles cannot be established merely on the basis of moral considerations but should be rationalized by reference to formal indicators).

  306. 306.

    See Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 102; see also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 292 (noting that, while general principles “were meant to serve as a counterbalance to legal positivism”, the requirement that they had to be recognized by civilized nations had been introduced “[i]n order to rationalize the legal discourse”).

  307. 307.

    For the possibility of establishing the required acceptance or recognition on the international rather than the domestic plane, see Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82.

  308. 308.

    See e.g. ibid., at 102 (subscribing to the view that “the concept of a ‘recognised’ general principle seems to conform more closely than the concept of custom to the situation where a norm invested with strong inherent authority is widely accepted even though widely violated”); cf. also Jonathan I. Charney, “Universal International Law” (1993) 87 A.J.I.L. 529 at 546-547 (suggesting that “general international law” [emphasis omitted] may be a more appropriate label to describe the law-making process based on multilateral fora than customary international law, all the while finding a connection between this label and Article 38(1)(b) of the ICJ Statute). Cf. also Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 284-293, 302-310 (stressing the distinction between “principles” and “rules”, with the former being often more general, relating to values and objectives rather than to specific conduct, and hence suitable for determination on the basis of recognition that is expressed in resolutions of representative intergovernmental organs or in the preambles of multilateral treaties rather than in actual state practice).

  309. 309.

    See e.g. Niels Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation” (2007-2008) 23 Am. U. Int’l L. Rev. 275 at 308 (noting that the contemporary structure of the international legal order allows for determining state consensus not only through a comparison of domestic legal systems but also on the basis of the resolutions of international institutions); Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 515-516.

  310. 310.

    See Bruno Simma & Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 The Australian Year Book of International Law 82 at 104-105, 107 (noting a reconciliation of “the mainstream, positivist, theory of sources with earlier views expressed by international lawyers of the natural law school”).

  311. 311.

    Cf. Hermann Mosler, “General Principles of Law” in: Rudolf Bernhardt, ed., Encyclopedia of Public International Law, Volume II (1995), 511 at 513 (noting the “somewhat wider scope to determine their concrete form” which courts have when applying general principles rather than customary law).

  312. 312.

    See Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at paras. 304-305.

  313. 313.

    See e.g. Siobhán Wills, “The ‘Responsibility to Protect’ by Peace Support Forces under International Human Rights Law” (2006) 13:4 International Peacekeeping 477 (with extensive recourse to the jurisprudence of the ICJ, European Court of Human Rights and the UK Court of Appeal as well as to the work of the ICRC). Most evident is the significance of international jurisprudence in those scholarly contributions which specifically comment on the decisions of the ICJ and the impact which they have or potentially could have on the understanding of certain legal regimes, see e.g. the commentaries on the Bosnian Genocide Case and the ICJ’s reading of the Genocide Convention in this case by William A. Schabas, “Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes” (2007) 2:2 Genocide Studies and Prevention 101; Louise Arbour, “The responsibility to protect as a duty of care in international law and practice” (2008) 34 Review of International Studies 445. For heavy reliance on scholarly opinion cf. e.g. David Luban, “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report” (2006-2007) 7 Chi. J. Int’l L. 303 at 305 and n. 20 (supporting his position that the Genocide Convention “imposes no legal obligation to act” with the observation that “international lawyers generally assume that the legal obligation to prevent genocide has no wider extension than genocide within a state’s own territory”, with reference to the then current edition of Schabas’s monograph on Genocide in International Law and rather cursory arguments on the basis of Articles VI and VIII of the Genocide Convention). Verlage refers to scholarly propositions and the ICJ’s 2007 decision in the Bosnian Genocide Case in his discourse on a duty of intervention, noting expressly their character as subsidiary means under Article 38(1)(d) of the ICJ Statute, see Christopher Verlage, Responsibility to Protect (Tübingen: Mohr Siebeck, 2009) at 209-211, 222-223.

  314. 314.

    See on this point below, Part 4.2.1.1, especially at 4.2.1.1.3.

  315. 315.

    See e.g. Andrea Gattini, “Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment” (2007) 18:4 E.J.I.L. 695; Karin Oellers-Frahm, “IGH: Bosnien-Herzegowina gegen Jugoslawien” (2007) 4 Vereinte Nationen 163; Frank Meyer, “Die Verantwortlichkeit von Vertragsstaaten nach der Völkermordkonvention: Besprechung zum Urteil des Internationalen Gerichtshofs vom 26. Februar 2007 in der Sache ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)’” (2007) 5 HRR-Strafrecht 218.

  316. 316.

    See the extensive reproduction of Lauterpacht’s opinion and argument on the duty to prevent genocide in the first edition of Schabas’s Genocide in international law: the crime of crimes, 1st ed. (Cambridge: Cambridge University Press, 2000) at 493-495, alongside his own analysis of the drafting history of the Genocide Convention and subsequent international practice of humanitarian intervention, ibid. at 491-502, and the proposition in his 2007 article and equally in the 2009 second edition of Genocide in international law: the crime of crimes that the ICJ’s decision in the Bosnian Genocide Case had reinforced the concept of the responsibility to protect as set out in the Outcome Document and elevated it to the status of a treaty obligation that is actionable before the ICJ for those states that have ratified the Genocide Convention without reservation to the jurisdictional clause in Article IX thereof, see id., “Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes” (2007) 2:2 Genocide Studies and Prevention 101 at 115; id., Genocide in international law: the crime of crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009) at 520-525. For references to Schabas in the context of the duty to prevent, see e.g. International Court of Justice, International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Tomka J., Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13699.pdf> 310 at para. 66 (praising Schabas as “the leading author on genocide”); International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Kreća J. ad hoc, Separate Opinion, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13709.pdf> 457 at para. 115.

  317. 317.

    Cf. e.g. Luban, who touched upon the issue of the duty to prevent genocide, albeit only parenthetically, and based himself heavily on scholarly opinion, citing namely the work of William A. Schabas, see David Luban, “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report” (2006-2007) 7 Chi. J. Int’l L. 303 a 305, n. 20. His view subsequently informed the expert opinion given by Sabine von Schorlemer on duties to prevent genocide under the Genocide Convention to the Committee on Human Rights and Humanitarian Aid of the German Bundestag, see Sabine von Schorlemer, “Anhörung zum Thema ‘Internationale Staatenverantwortung’ (‘Responsibility to Protect’)”, 11 February 2009, online: Deutscher Bundestag, <http://webarchiv.bundestag.de/cgi/show.php?fileToLoad=1366&id=1136>.

  318. 318.

    A striking example is Louise Arbour’s path-breaking comment on the Bosnian Genocide Case, in which she identifies as “the key legal lesson in the Court’s opinion that the prevention of genocide is a [justiciable] legal obligation that one State effectively owes to the citizens of another State, outside its own territory” and suggests that, according to the logic of the judgment, an obligation may also be borne by other states parties to the Genocide Convention and even by the wider international community to utilize reasonably and consistently with international law all tools that are at their disposal, see Louise Arbour, “The responsibility to protect as a duty of care in international law and practice” (2008) 34 Review of International Studies 445 at 451-453. In light of the criteria spelt out by the ICJ and against the backdrop of the R2P doctrine, Arbour submits that inaction by the Security Council members and the use or threat of a veto to block action by other members to avert genocide or crimes against humanity could entail legal consequences for the respective member state, and that a veto cast by a state could constitute a violation of its contractual obligations under the Genocide Convention, ibid. at 453-455.

  319. 319.

    See already above, text accompanying note 27.

  320. 320.

    An example in point is the reliance by David Luban on William A. Schabas’s first edition of Genocide in International Law, which he cites for the proposition that “[t]here is no suggestion that states must act on their own to suppress genocide in other states”, see David Luban, “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report” (2006-2007) 7 Chi. J. Int’l L. 303 a 305, n. 20. In the second edition of his monograph, however, Schabas endorsed the ICJ’s finding in the Bosnian Genocide Case of a duty to prevent which has “both an individual and a collective dimension”, see William A. Schabas, Genocide in international law: the crime of crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009) at 533. A mere numerical evaluation of scholarly views would not take account of such an evolution in the leading opinion.

  321. 321.

    See e.g. Siobhán Wills, Protecting civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009) at 254-255 (noting the “unparalleled status” which the ICRC has “as the leading interpreter of international humanitarian law”).

  322. 322.

    See Jean S. Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary. Volume I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: International Committee of the Red Cross, 1952) at 7; Jean S. Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary. Volume II: Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva: International Committee of the Red Cross, 1960) at 1; Jean S. Pictet, ed., Les Conventions de Genève de 12 août 1949: Commentaire. Volume III: La Convention de Genève relative au traitement des prisonniers de guerre (Geneva: International Committee of the Red Cross, 1958) at 5; Jean S. Pictet, ed., Les Conventions de Genève de 12 août 1949: Commentaire. Volume IV: La Convention de Genève relative à la protection des personnes civiles en temps de guerre (Geneva: International Committee of the Red Cross, 1958) at 5. But see also the critique by Frits Kalshoven, “The undertaking to respect and ensure respect in all circumstances: from tiny seed to ripening fruit” (1999) 2 Yearbook of International Humanitarian Law 3 at 49 (noting that the commentary on the 1977 Additional Protocols contains no explicit submission to the interpretation by the state parties but, despite claiming that it did not disseminate the views of the ICRC, makes clear that the committee was “conscious of its role as a guardian of international humanitarian law”).

  323. 323.

    Cf. e.g. Louise Arbour’s discussion of the responsibility of third states, including namely the permanent members of the Security Council, to take action for the prevention of genocide pursuant to the criteria developed by the ICJ in the 2007 decision in the Bosnian Genocide Case: Louise Arbour, “The responsibility to protect as a duty of care in international law and practice” (2008) 34 Review of International Studies 445 at 451-455. Arbour’s argument on the possibility that third states, including namely the permanent members of the Security Council, could incur legal liability for a failure to use their influence to stop genocide is in turn taken up by Siobhán Wills, Protecting civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009) at 252.

  324. 324.

    On this “formative effect on custom” see e.g. Mark Toufayan, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))” (2004-2005) 40 Tex. Int’l L.J. 233 at 252, n. 104.

  325. 325.

    Cf. for the Bosnian Genocide Case the criticism of the majority’s conceptualization of the duty to prevent by Skotnikov J., International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43, Skotnikov J., Declaration, online: International Court of Justice <http://www.icj-cij.org/docket/files/91/13705.pdf> 366 at 379; cf. also Philippe Weckel, “L’Arrêt sur le génocide: le souffle de l’Avis de 1951 n’a pas transporté la Cour” (2007) 111 RGDIP 305 at 305 (noting the divide in the 2007 decision of the ICJ in the Bosnian Genocide Case and the need to continue the debate in the doctrinal discourse); Sandesh Sivakumaran & Santiago Villalpando, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro): An Introduction” (2008) 21 Leiden Journal of International Law 63 at 64 (submitting that it was important that the Court’s judgment in the Bosnian Genocide Case “be subjected to detailed critique, from outside the Court as well as within”, as “[a]ny judgment, even those stemming from as eminent an institution as the International Court of Justice, should be analysed, criticized, or affirmed, with due regard for the body in question”).

  326. 326.

    See Alain Pellet, “Article 38” in: Zimmermann, Andreas/Tomuschat, Christian/Oellers-Frahm, Karin & Tams, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012) at paras. 307, 309.

  327. 327.

    Examples for the distinct methodologies can specifically be found in the context of humanitarian intervention, namely in the works of Fernando R. Tesón and Brian D. Lepard. Both authors grant ethical principles a role as a background theory in their legal analyses. While Tesón devises, in the first part of his work, a moral-philosophical theory of humanitarian intervention, discussing competing philosophical arguments and concepts, see Fernando R. Tesón, Humanitarian intervention: an inquiry into law and morality, 3rd ed. (Ardsley, NY: Transnational, 2005), c. 2-5, Lepard extrapolates principles that have been incorporated in international law or different religious texts, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University, 2002), c.2. See also on these approaches Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 76-80.

  328. 328.

    Cf. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 881 and 884.

  329. 329.

    See Andreas S. Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Hamburg: Kovač, 2011) at 108-114.

  330. 330.

    See on this Part 4.4.4 below and the authorities cited therein.

  331. 331.

    See UN Charter, Preamble at para. 1(2).

  332. 332.

    See UN Charter, Article 2(1), (4) and (7).

  333. 333.

    See Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) at 882-883 (suggesting that ultimately and more basically a decision may have to be made between interests of the international community as a whole, the “utilitas publica”, or the interest of the individual state, understood as an entity that constitutes an end of its own,“utilitas singulorum”).

  334. 334.

    Ibid. (finding that there is a choice of legal policy at the heart of the interpretative process, and noting that priorities have oscillated over the course of the centuries, with a rise of the concept of interests common to all states or even to the entirety of humanity in the twentieth century).

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Kolb, A.S. (2018). Legal Theory and Methodology. In: The UN Security Council Members' Responsibility to Protect. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 274. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-55644-3_2

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