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ČESTMÍR ČEPELKA CYIL 6 ȍ2015Ȏ
the importance of the rights involved, all States can be held to have a legal interest
in their protection; they are obligations erga omnes. 15 All States are then entitled to
invoke responsibility for breaches of obligations to the international community as
a whole.16
The legal consequences of such infringement concern only a small number of norms
which are then qualified as peremptory. These norms seek to ensure the existence of
States and their inhabitants as well as the most basic human values.
2.1 The prohibition of resorting to force
Key significance belongs to the prohibition of resorting to force, because it has
replaced freedom of action (so-called), which lasted for ages. The leading role belongs
to this norm because, thanks to it, further rules juris cogentis also came into existence.
The prohibition to have recourse to force is, as well, the single peremptory norm
that has a written form of presentation, that in Article 2(4) of the United Nations
Charter.17 And it is this said Charter that specifies legal consequences in case of
a breach of the rule in question, namely according to its Chapter VII (Action with
respect to threats to the peace, breaches of the peace, and acts of aggression).18
But the relevant provision concerning necessary armed forces (Art. 43) as
well as the stipulation regarding the Military Staff Committee to advise and assist
the Security Council on all questions relating to the Security Council’s military
requirements (Art. 47) have never been implemented. This is owing to the so-called
Cold War, which lasted until the dissolution of the Soviet Union (1991).19
At the end of the above mentioned “cold-war period” there was also the sole
occurrence of coercion of an aggressor. This concerns Iraq, because of its invasion of
Kuwait (2–4 August 1990).20 The relevant resolution authorizes Member States to
use all necessary means to restore international peace and security in the area.21 The
15 Which is the Latin equivalent to “towards everyone/all”.
16 This erga omnes relation is a typical feature only for jus cogens. Mostly and normally obligations are owed
by States to each other, and each is only individually entitled to invoke a breach as a basis for State
responsibility. The bilateralism of international law thus means that international law obligates States
reciprocally in their relations inter se.
17 Article 2 (4) – “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
18 According to this Chapter the Security Council may even accede to military actions, as follows from
the subsequent wording of Article 42: “Should the Security Council consider that measures (not
involving the use of armed forces) provided for in Article 41 would be inadequate or have proved to
be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations”.
19 See also
20 See S/RES/660 (1990); see also
21 See S/RES/678 (1990) of 29 November 1990, para 2.