CYIL vol. 9 (2018)

MARTIN FAIX – ONDŘEJ SVAČEK CYIL 9 ȍ2018Ȏ existing norm and thus act, stricto sensu , illegally until the point of time when new customary rule can be regarded as established. 15 Verbal acts thus seem to be a more suitable source or even a necessary part accompanying the mere action in order to count as relevant practice. However here another question appears: should also verbal acts short of legal argumentation be considered as relevant? To provide an example: Nikki Haley, the US Permanent Representative to the United Nations, delivered a statement 16 on April 14, 2018, after US bombing in Syria in response to the use of chemical weapons, in the UN Security Council. The statement contains international law aspects; however, it avoids raising any type of legal justification for the US action under international law on the use force. The ICJ itself made distinction between legal and extra- legal (factual, moral, political) considerations and stressed that only the former are relevant, i.e. are capable of giving rise to evolution of customary international law. For verbal acts to be relevant they must formulate a claim of a legal nature. Only such verbal acts are related with belief in acting in accordance with international law rather than with mere courtesy, convenience, or diplomatic concerns. It has to be noted that practice, even if undertaken with legal conviction, thus prima facie fulfilling the constituent requirements for existence of customary international law, may be compromised by extra-legal considerations to such an extent that it prevents creation of custom. The Colombian-Peruvian Political Asylum case provides an example. The ICJ stated in its judgment several bars, which prevented in the particular case existence of a customary norm, one of them being the fact that the relevant practice of Latin American states has been extensively “influenced by considerations of political expediency”. 17 Thus the abovementioned statement of Nikki Haley may help to interpret the political position of the United States, but to count as relevant practice (creative, or expressive, of customary international law) specifically in the area of use of force, it would have to contain legal arguments or positions relevant to the area of use of force. 18 To sum up, it appears that material acts, i.e. a sole conduct without any accompanying statement or any other suitable form of expression, through which the legal conviction of the State can be identified, cannot count as relevant practice. Even if legal elements in material and verbal acts can be identified, the legal conviction expressed therein must be relevant. The relevance must be assessed on case by case basis with due attention to the question whether the practice in question is being evaluated in the context of norm generation process or clarification of the scope and content of an existing legal norm. 15 For a different view cf. LEPARD, B.: Changing Customary International Law and the Role of International Organizations. In: Customary International Law: A New Theory with Practical Applications . ASIL Studies in International Legal Theory . Cambridge: Cambridge University Press, 2010, pp. 277-282. 16 HALLEY, N.: Remarks at an Emergency UN Security Council Meeting on Syria [online]. In: U.S. Mission to the United Nations . 14 April 2018. Available at: https://usun.state.gov/remarks/8389 [2018-07-07]. 17 The ICJ assessed the practice of States and concluded that “so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence”. Asylum (Columbia v. Peru), Judgment , I.C.J. Reports 1950, p. 277. 18 Wood, M., Sender, O.: supra .

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