CYIL vol. 7 (2016)

JOSEF MRÁZEK

CYIL 7 ȍ2016Ȏ

use of force against their territory, against their ships, planes, military forces etc. as

a “crime of aggression”. It might also be complicated to credibly recognize which acts

of aggression have a “serious” or ”substantial” impact on violation of Art. 2 (4). The

problem of the definition was and still is a matter of great controversy, even after

Kampala. The term “aggression” itself has a long history (even behind the LN) and

appeared as the

casus foederic

in many treaties of defensive alliances in the nineteenth

century. In San Francisco some delegates equated the term “aggression” with “armed

attack”.

Other questions might also be discussed: What does the notion of “self-help” or

“offensive self-help” in present international law mean? The Carolina case of 1837 is

often used as a “mantra” just for “self-help” and “self-defence” reasoning in international

customary law.

Is a “threat to peace” a sufficient legal or “legitime” ground for unilateral use

of armed force (armed intervention) without authorization of the UNSC? How

should one assess “doctrines” on “implicit” or

“ex-post facto”

UNSC authorization

of the use of armed force? Is it in this respect legally admissible to invoke even

“tacit” authorization? Under which conditions may resort to armed force without

authorization by the UNSC become “legitime” and be later “legally” justified? Can

some NATO armed actions be legally realized without UNSC authorization? Is

this Alliance organization already an organization of “collective security” or does it

remain still only an organization of “self-defence” according to Art. 51? What is

the legal reasoning of military actions against terrorist groups and other non-state

actors against the state who shelter them? There is a likewise revival of the “just

war” theories (see Obama’s declarations).

Who will now decide ultimately that

a war is “just” or “unjust” (

bellum iniustum

)? The medieval idea of

bellum justum

was

actually not a rule either of positive international law nor of natural law. The theory

of “just war” was developed by the theologian school of international law. Until the

beginning of the 20

century, the States were free to resort to war for any reason.

As a rule a war was considered to be “just” by brother parties to the war. Is it legal

to use armed force to protect one’s own nationals abroad without UNSC approval?

Recently a so-called “accumulated armed attack” theory has appeared. Does this theory

really find support in international law?

There are surely many questions which are to be solved to clarify the content of

the use of the armed force principle in international law, which seems to be losing

significance due to many violations of it, despite being “justified” by various legal

theories and doctrines. This article concentrates on some of those items which have

been summarized in the following five chapters:

President Obama’s Peace Prize Lecture.

AJIL.

2010, No. 1, pp. 127-129.