Michael Byers and Simon Chesterman, 2003, Changing the rules about rules?

Unilateral humanitarian intervention and the future of international law, in J.L. Holzgrefe and Robert O. Keohane eds, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge: Cambridge University Press, pp.177 p.181 The last resolution before the intervention, Resolution 1203 of 24 October 1998, specifically affirms that, in the event of an emergency, action may be needed to ensure their [the OSCE Verification Missions] safety and freedom of movement. It makes no mention of humanitarian intervention and concludes by stating that the Council remains actively seized of the matter. It was thus made clear that any decision to engage in a humanitarian intervention was to be made by the Council alone, at a subsequent meeting.1

The second exception to the Article 2(4) prohibition is the right of self-defence. This right is contingent upon an armed attack on the state asserting the right, and limite to acts taken in self-defense that are both necessary and proportionate. Self-defence was not available as a justification for the Kosovo intervention because it was never suggested that Yugoslavia was planning to attack any NATO states. Nor did NATO consider the people of Kosovo capable of having their own right to self-defence, and inviting assistance on that basis. Kosovo was not itself a state, which is a basic requirement for self-defence under international law.2 Under traditional understandings of international law, the only way the Kosovo intervention could have been legal was if a right of unilateral humanitarian intervention had somehow achieved the status of jus cogens and thus overridden conflicting treaty provisions.3 In determining whether these legal developments had occurred as of 24 March 1999, one must first consider the practice of states in the decades preceding the intervention. Had the preponderance of state practice and accompanying opinion juris indicated a change towards a right of humanitarian intervention in the absence of Security Council authorization? Customary international law, in particular, is derived to a considerable extent from shared understandings of legal relevance and a collectivity of law-making design, not the behaviour

The previous resolution on Kosovo had been more specific, stating that the Council decided, should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region: SC Res. 1199 (1998), para. 16 (emphasis added) 2 On self-defence, see generally UN Charter Article 51; I. Brownlie, International Law and the Use of Force by States, Clarendon Press: Oxford, 1963; B. Simma ed., The Charter of the United Nations: A Commentary, Oxford: Oxford University Press, 1994, p.676 33 The prohibition of the use of force is itself frequently cited as a rule of jus cogens. In the Nicaragua case the ICJ quoted with approval the following statement by the UN International Law Commission: [T]he law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens. ICJ Reports, 1986, p. 14 at p. 100 (para. 190)

of actors whose conceptions of self and the good are somehow hermetically sealed from their relations with the outside world.4 Treaty provisions prevail over customary international law Kosovo, Paul Heinbecker in eds David M. Malone, The UN Security Council: From the Cold War to the 21st Century, 2004, London: Lynne Rienner Publishers

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See S. Toope, Emerging Patterns of Governance and International Law, in M. Byers eds., The Role of Law in International Politics (Oxford University Press:Oxford, 2000), p. 91; J. Goldsmith and E Posner, A Theory of Customary International Law, 66 University of Chicago Law Review (1999), 1113