CYIL vol. 9 (2018)

MARTIN FAIX – ONDŘEJ SVAČEK CYIL 9 ȍ2018Ȏ particular treaty. The leading source of international law on the use of force, the UN Charter, regulates such procedure in its Article 108. Rigid requirements of this provision make formal modification of the UN Charter virtually impossible. 69 Conclusion International lawyers and doctrine constitute an important and formally recognized source (Article 38 ICJ Statute) of knowledge what international law is and how it should be understood. The area of international law on the use of force shows however that it is of extreme importance to deal also with the questions of methodology, i.e. to deal with the issue how international lawyers think, since this directly influences the outcomes of their research. Authors of this contribution attempted to demonstrate the relevance on the aspect of practice as the element, which plays a crucial role in generating (but also in application) process of international law. Practice may take various form. Both, material and verbal form of conduct can constitute suitable practice, however only such conduct is relevant from which legal conviction or claim can be derived. This is true also when assessing whether silence or inaction constitute acquiescence. Acquiescence requires that silence is qualified, i.e. contains legal conviction, whereas stricter conditions should be applied when qualifying silence as acquiescence in cases concerning use of force in order to prevent jeopardizing of the fundaments of international legal system. Whether also other actors, especially international organizations, can contribute to relevant norm generating practice, is disputable. The ILC limited itself to a relatively unclear position that this is possible “in certain cases”. The answer certainly also depends on the understanding of the separate legal position and specificities of international organizations under international law, allowing for different conclusions. Authors of this contribution also concluded that value-oriented (deductive) approach should be rejected in favor of traditional inductive method of creation of customary international law. The presence of customary international law requires existence of previous extensive State practice accompanied by opinio iuris , any preconceived ideas (values) are per se not sufficient for new rule of customary international law to emerge. It follows that practice should be accorded a norm-generating function in relation to customary international law. In relation to international treaty law, practice should only have an interpretative function, despite certain examples of contradictory international judicial practice. With respect to qualifiers of State practice, it was concluded that, firstly, custom evolves gradually nevertheless its formation might be relatively rapid, but never instant. Secondly, the practice must be general that is to say it must be sufficiently widespread and representative, as well as consistent. The requirement of representativeness should be interpreted very broadly. If peremptory rules concerning use of force are at stake, all States might be considered specially affected. A research on customary international law concerning use of force cannot limit itself only on practice of few particular, mostly powerful States. The practice must derive from the most widespread sample possible. Finally, it was stressed that moral and other values and criteria such as legitimacy should be excluded in and from legal discourse. 69 Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council. 6.

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