CYIL vol. 8 (2017)

PAVEL CABAN CYIL 8 ȍ2017Ȏ apply the Article 2(4) prohibition” with regard to the situation in Syria. 7 Could such a conclusion about the ”pattern of behavior of States” be based on the Commission’s draft conclusion 10, paragraph 3, i.e. could, according to the above draft conclusion, such a failure to react by other states with regard to the U. S. airstrikes serve as evidence of acceptance as law of such a practice? On the face of it, it seems that such a proposition could be plausible. If the U.S. airstrikes were indeed unlawful, it definitely may be assumed that the circumstances ”called for some reaction” by all states, since the rights (interests) of all states of the international community concerning one of the fundamental norms of international law, the prohibition against the use of force, were affected; in addition, without doubt, all states were in a position to react ( i.e. had knowledge of the practice and sufficient time and ability to act). Yet, as the commentator admits, ”most commentators contended that the operation [the U.S. airstrikes in question] was unlawful”. III. Turning back to the draft conclusion 10, paragraph 3, we can try to examine more closely what the legal meaning of the words “called for” (“provided that … the circumstances called for some reaction”) should be. Certainly it does not imply the existence of an obligation (under customary international law) of states to “react” to any practice which could potentially lead to formation of a new norm of customary international law: states simply cannot be deemed to protest over every single act with which they do not agree; the reasons why they do not react in a specific case may have nothing to do with the legal assessment of the practice and their (non-)reaction to such practice. 8 7 “ … it is insufficient simply to insist that the April strikes were unlawful and had no effect on the law. Even if we assume that states did not create a new exception to Article 2(4), we have to accept that states, as a group, declined to apply the Article 2(4) prohibition in Syria. They decided to deprive the prohibition both of its operational relevance and of its normative bite. That looks an awful lot like a decision to make the strikes lawful. Or at least, it means that the difference between calling them lawful and calling them unlawful is, as a practical matter, imperceptible. …”; HAKIMI, M., Macron’s Threat of Reprisals and the Jus ad Bellum; EJIL: Talk !; available at https://www.ejiltalk.org/macrons-threat-of-reprisals-and-the-jus-ad-bellum/ (visited on 20 June 2017). See further WELLER, M., Forcible Humanitarian Action in International Law; EJIL: Talk !; avalilable at https://www.ejiltalk. org/forcible-humanitarian-action-in-international-law-part-ii/ (visited on 20 June 2017). 8 BOS, M., “The Identification of Custom in International Law”, German Yearbook of International Law , 25 (1982), p. 37; cited in: Third report on identification of customary international law, op. cit. sub 4, p. 12, fn. 49): “… it should be emphasized that silence may not always be taken to mean acquiescence: for States cannot be deemed to live under an obligation of permanent protest against anything not pleasing them. …”; SHAW, M. N., International Law , 7th edition, Cambridge University Press, 2014, p. 64 (“ … States fail to protest for very many reasons. A state might not wish to give offence gratuitously or it might wish to reinforce political ties or other diplomatic and political considerations may be relevant. It could be that to protest over every single act with which a state does not agree would be an excessive requirement. It is, therefore, unrealistic to expect every state to react to every single act of every other state. …”). See further Mr. Vasquéz-Bermúdez, Commission’s summary records A/CN.4/SR.3253 (20 May 2015), p. 10 (“However, States were under no obligation to protest against, or agree with, every act performed by other States. There could be various reasons why States did not always protest against acts of other States which they considered to breach international law, even when they could be presumed to have generally expressed their condemnation of such acts. In those cases, silence could not be construed as opinio iuris accepting the conduct of another States as law.”); Mr. McRae, ibid ., p. 3 (“The formulation ‚provided that the circumstances call for some reaction‘ might be appropriate if there was a general rule that States had an obligation to object if they disagreed with the development of a customary rule of international law. But no such principle existed and draft conclusion 11 [current draft conclusion 10] seemed to be introducing it through the back door.”); Mr. Kittichaisaree, summary records A/CN.4/SR.3225 (17 July 2014), p. 10.

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