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75 Nordic J. Int'l L. 371 (2006)
Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and Jus in Bello

handle is hein.journals/nordic75 and id is 381 raw text is: Nordic Journal of International Law, 75: 371-407, 2006.             371
© 2006 Koninklijke Brill NV Printed in the Netherlands.
Legal Stability and Claims of Change: The International Court's
Treatment of Jus ad Bellum and Jus in Betio
ALEXANDER ORAKHELASHVILI*
Abstract. The post-Cold War era has witnessed a number of international conflicts
and attendant claims that the law related to the use of force and armed conflicts has
experienced significant changes in consequence of those events and processes. This
has been argued extensively in terms of the conflicts of Iraq, Yugoslavia, or
Afghanistan. The proof of legal change is, however, difficult to establish as it is sub-
ject to a high standard of proof and at the same time legal changes can damage the
consistency and credibility of the system. As the International Court's consistent
jurisprudence demonstrates, the argument of alleged legal changes in the legal
regime governing armed conflicts is not based on consistent reasoning. This is
explained by example in the Court's treatment of a number of fields, such as consent
to the use of force, proof of the facts of the use of force, the law of self-defence and
the law of belligerent occupation. The Court's consistent jurisprudence not only
undermines the argument of legal change but also demonstrates that the legal posi-
tion in this field maintains its separate existence in relation to power and politics. The
strict application of legal norms is an inevitable requirement for a transparent legal
system.
1. Introduction
Since the emergence of the current framework of jus ad bellum with the
entry into force of the United Nations Charter, considerations of its stability,
coherence and consistency have remained paramount. Under this framework
combining the regulation by the Charter and customary international law,
States are allowed to use force only in self-defence under Article 51 of the
Charter, or with the authorisation of the UN Security Council under Chapter
VII. In the Cold War period, there were a number of instances where States
used force, with the attendant claims of a change in the legal position to legit-
imise the relevant uses of force. Despite these claims, the entitlement of
States to resort to force has remained limited to the two instances expressly
mentioned in the Charter. With the end of the Cold War and its impact on the
* LLM cum laude (Leiden); PhD (Cantab.); Fellow, Jesus College, Oxford; this is the revised version
of the presentation given at the Oxford Public International Law Discussion Group Seminar in February
2006.

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