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PROHIBITION OF THE USE OF FORCE AS JUS COGENS 167
NILR 2014
THE PROHIBITION OF THE USE OF FORCE AS JUS COGENS: EXPLAINING APPARENT DEROGATIONS
by Sondre Torp Helmersen*
1. Introduction and outline
2. The effects of jus cogens2.1 Introduction2.2 The main effect of jus cogens: prohibiting derogation2.3 Other effects of jus cogens
3. The prohibition is (presumably) jus cogens
4. Terminology: derogations, exceptions, and scope
5. Apparent derogations from the prohibition5.1 Introduction5.2 Self-defence: reflects a customary exception5.3 Consent: outside its scope5.4 UNCLOS provisions: outside its scope5.5 Article 42 UN Charter: requires explanation5.6 Other treaties: validity disputed5.7 Other exceptions: not derogations
6. Article 42 UN Charter: possible explanations6.1 Introduction6.2 Article 42 reflects a customary exception6.3 Treaties are outside the scope of the prohibition6.4 Authorised force is outside the scope of the prohibition6.5 The UNSC is outside the scope of the prohibition6.6 Only aggression is jus cogens6.6.1 Introduction6.6.2 Distinction between aggression and the use of force6.6.3 UNSC outside the scope of aggression6.6.4 Only aggression as jus cogens6.6.5 Conclusion
* PhD Research Fellow, University of Oslo, Department of Public and International Law, Faculty of Law. E-mail: [email protected]. I thank Erlend Leonhardsen, Professor Ulf Linderfalk, and anonymous reviewers for invaluable feedback on earlier drafts of the article.
Netherlands International Law Review, LXI: 167-193, 2014 2014 T.M.C. Asser Instituut and Contributorsdoi: 10.1017/S0165070X14001168
S.T. HELMERSEN
S.T. HELMERSEN
168 NILR 2014
6.7 Special jus cogens6.8 The Charter is above jus cogens6.9 The prohibition is not jus cogens
7. Conclusion
Abstract
The prohibition of the use of force is generally considered to be a jus cogens rule, which would mean that it does not permit any derogation, neither by consent nor by treaty. Yet multiple apparent derogations from the prohibition exist: Articles 42 and 51 of the UN Charter, Articles 105, 110 and 111 of the UNCLOS, and other treaties all permit uses of force, and ad hoc consent to use force is common. This article explains how this can be legally valid, by reference to the distinctions between derogations, exceptions, and scope.
1. INTRODUCTION AND OUTLINE
The prohibition of the use of force is often said to be a jus cogens rule, and jus cogens rules prohibit any derogation. The aim of this article is to explain how the customary international...