JPIL Vol 3 Issue 1 2009 - A2

Abstract

 

International norms are amended or abandoned on the basis of consensus between States. Consensus, itself, is reflected in State practice, but it is not always clear whether sufficient practice exists to create a new rule. An exception to an international rule, such as inter-State abductions which violate the rule of territorial sovereignty, can only be said to constitute a normative exception, rather than a non-normative act, where sufficient consensus exists. In both the Eichmann abduction and the NATO bombing of Yugoslavia, those States undertaking such action did not intend nor do they at present to depart from the general rule (i.e. territorial sovereignty). Instead, there is no evidence that they, or third States, wished to established a general normative exception, but only a particular to their individual circumstances exceptional rule that would not be subject to repetition by lesser powers. In order to validate our argument we make use of the interpretative communities theory, on the basis of which the permanent Security Council member States and their allies shared the same assumptions in the relevant Security Council resolutions. Therein, it was not claimed that the Eichmann abduction or the NATO campaign rested on a new rule, but rather inferred that these were one-off acts that although legitimate did not establish any sort of precedent.


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