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Three Questions about “Informal Regulation”

  • Christian J. Tams (a1)
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In the grand debates of international law, the jus ad bellum is often proclaimed dead, and just as often praised as the “cornerstone” of the contemporary legal order. Both perspectives tend to ignore that the jus ad bellum is not static, but a body of law that states adjust over time. In an important contribution, Monica Hakimi proposes to look at one particular aspect of such adjustment, a concept she frames as “informal regulation” through Security Council action. This essay engages with Hakimi's approach. It inquires whether this approach is as “informal” as Hakimi suggests, and asks whether “informal regulation”—rather than constituting a new category of state activities to study—is not already part of conventional approaches to the jus ad bellum. Proceeding from Hakimi's analysis, the comment assesses whether there is room for “informal regulation” beyond the Security Council.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 Monica Hakimi, The Jus ad Bellum's Regulatory Form, 112 AJIL 151 (2018).

2 For past work on the topic, see, e.g., Christian J. Tams, The Use of Force Against Terrorists, 20 Eur. J. Int'l L. 359 (2009); Christian J. Tams & Antonios Tzanakopoulos, Use of Force, in International Legal Positivism in a Postmodern World (Jean d'Aspremont & Jorg Kammehofer eds., 2014); Christian J. Tams, Prospects for Humanitarian Uses of Force, in Realizing Utopia: The Future of International Law (Antonio Cassese ed., 2012).

3 Hakimi, supra note 1, at 156.

4 Id. at 158.

5 Id. at 152.

6 Id. at 168.

7 Id. at 182.

8 Id. at 159.

9 Id.

10 Id. at 166.

11 Id. at 159.

12 Id. at 174.

13 Id. at 175.

14 See Karine Bannelier & Theodore Christakis, Under the UN Security Council's Watchful Eyes: Military Intervention by Invitation in the Malian Conflict, 26 Leiden J. Int'l L. 855, 873 (2013).

15 Hakimi, supra note 1, at 173–74.

16 See, e.g., Int'l Law Comm'n, Draft Conclusions on the Identification of Customary International Law, UN Doc. A/71/10 (2016), Draft Conclusion 12 (“A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development.”). According to Draft Conclusion 6(2), state practice includes “conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference.” Id. at 77–78.

17 Int'l Law Comm'n, Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN Doc. A/71/10, at 123 (2016), Draft Conclusion 12 (“2. Subsequent agreements and subsequent practice under article 31, paragraph 3, or other subsequent practice under article 32, may arise from, or be expressed in, the practice of an international organization in the application of its constituent instrument. 3. Practice of an international organization in the application of its constituent instrument may contribute to the interpretation of that instrument when applying articles 31, paragraph 1, and 32.”).

18 Hakimi, supra note 1, at 180.

19 Id. at 165, n.73.

21 See, e.g., the views set out in the Second Summit Conference of Heads of State or Government of the Non-Aligned Movement, reproduced in UN Doc. A/5763 (Oct. 29, 1964).

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