CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ INTERNATIONAL LAW ON THE USE OF FORCE… rules against the use of force, he has decided that his personal moral beliefs are superior to those of the community.” 62 With all respect and understanding to the value-oriented approach, authors of the present contribution go along with the position presented by the restrictive school. Once again, this choice has its recourse in the case-law of the ICJ. For the first time, the ICJ expressed its position clearly and unequivocally in the SouthWest African case in 1966. 63 Twenty years later, the ICJ rejected justification for intervention to Nicaragua presented by the US stressing that their “authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy […] but these were statements of international policy, and not an assertion of rules of existing international law.” 64 To sum up, the value based approach based on arguments of morality, legitimacy or policy must be rejected unless it has sufficient expression in legal form. Role of practice in international conventional law Relevance of practice in international law as subsequent practice for the international conventional law has been widely discussed among scholars. 65 The crucial question is, whether it might have similar norm-generating function as that exercised in relation to customary international law. Indeed, the dividing line between the interpretation and the amendment or modification of a treaty is in practice sometimes “difficult, if not impossible, to fix”. 66 While there exists some support in international case-law 67 that, absent indications in the treaty to the contrary, the agreed subsequent practice of the parties theoretically may lead to modifications of a treaty, the actual occurrence of that effect is not to be presumed. Instead, States and courts prefer to make every effort to conceive of an agreed subsequent practice of the parties as an effort to interpret the treaty in a particular way – that is to say that evolutionary or extensive interpretation is preferred to modification of international treaty. This position is also supported by travaux préparatoires to the VCLT. 68 Therefore, with respect to treaties, subsequent practice should be used in the sense of Article 31(3)(b) of the VCLT (external systematic interpretation) and should be assigned only interpretative function. For the sake of completeness, it should be added that international treaty might be modified under procedure anticipated in each 62 O’CONNELL, M. E.: supra , p. 12. 63 South West Africa, Second Phase , Judgment, I.C.J. Reports 1966, p. 34, para. 49. The Court must now turn to certain questions of a wider character. Throughout this case it has been suggested, directly or indirectly, that humanitarian considerations are sufficient in themselves to generate legal rights and obligations, and that the Court can and should proceed accordingly. The Court does not think so. It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered. 64 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. 65 Cf. NOLTE, G. (ed.) Treaties and Subsequent Practice . Oxford: Oxford University Press, 2013, p. 432. 66 ILC, A/71/10, p. 176, para. 27. 67 ECHR, Al-Saadoon and Mufdhi v. the UK , 2010, para. 120. 68 Originally, the VCLT contained draft article 38 according to which a treaty may be modified by subsequent practice in the application of the treaty establishing the agreement of the parties to modify its provisions. Cf. ILC, A/CN.4/671, p. 52, para. 119. Majority of States expressed objections to this provision which was later removed from the final text of the VCLT. 5.

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