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MARTIN FAIX – ONDŘEJ SVAČEK CYIL 9 ȍ2018Ȏ should nonetheless be attached to the practice of specially affected States. 45 Nevertheless, this is not meant that “the evolution of international (customary) norm [is] dependent upon the practice of some particular states [e.g. P5 countries] merely because of their powerfulness”. 46 Authors of this contribution have various reasons why not to formally overestimate practice of those powerful States. Firstly, if taken literally, the ICJ’s dictum did not exclude other than specially affected States from custom-generating process. More importantly, in the North Sea Continental Shelf case the subject matter of the dispute related to law of the sea, i.e. ius dispositivum . With respect to law on the use of force, situation is nevertheless completely different due to its peremptory character and attached erga omnes effect, which means that all States, whole international community, might be considered to be specially affected. All States could be held to have a legal interest in protection of and respect for rules concerning the use of force. 47 Taken from the different perspective, the ICJ confirmed that the invocation of a new right or exception cannot tend to modify customary international law unless it is shared by other States – given the peremptory character of the prohibition, it should be a large majority of States. 48 It is obvious that any research on customary international law concerning use of force cannot limit itself only on practice of few particular States. This approach has two particular consequences. Firstly, since the practice of virtually all States is relevant and should be formally treated as equal, it is possible to focus on position of States from Central and Eastern Europe, namely countries forming the Visegrad Group. Secondly, from these same reasons, it is not possible to draw any conclusion simply from practice of certain States without a proper consideration of reaction (practice) of other States. It has been widely argued in doctrine that in the 21 st century it is imperative “to overcome excessiveWest-centrism in international law and global society.” 49 As simple as it gets, practice of Western governments must be assessed in the context of reaction coming from their non-Western counterparts. 50 At the same time, it is necessary to be realistic and beyond formally asserted equality of all States admit that powerful States will naturally have dominant position in formation of customary international law on the use of force, mostly because of its military capacity and readiness to actually use force in interstate relations. Importance of the powerful States should and must therefore be accented: it is expected that it will rightly be practice of these States which will bring about examples of material acts that will then induce verbal reactions from the third non-participating States. A bombardment of Syria by France, the UK and the US in April 2018 might be use as one of the most recent example. Dichotomy and relevance of material versus verbal acts has been already discussed in the previous part. 47 Barcelona Traction, Light and Power Company, Limited , Judgment, I.C.J. Reports 1970, p. 32, para. 33. 48 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) . Merits, Judgment, I.C.J. Reports 1986, p. 109, para. 207. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. Cf. CORTEN, O.: Breach and Evolution of Customary International Law on the Use of Force. In: CANNIZZARO, E., PALCHETTI, P.: Customary International Law on the Use of Force: Methodological Approach . Brill: Leiden, 2005, p. 139. 49 ONUMA, Y.: A Transcivilizational Perspective on International Law . Leiden: Nijhoff, 2010, p. 179. 50 Cf. FARER, T.: Humanitarian Intervention Before and After 9/11. In: HOLZGREFE, KEOHANE, R.: Humanitarian Intervention: Ethical, Legal, and Political Dilemmas . Cambridge: CUP, 2003, p. 80. 45 VAN STEENBERGHE, R.: The Law against War or Jus contra Bellum: A New Terminology for a Conservative View on the Use of Force? Leiden Journal of International Law . 2011, vol. 24, issue 3, p. 752. 46 Ibid , p. 752.

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