88 / 536
74
JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
the relationship between the UN Charter provisions of Art. 2 (4) and customary
international law on the use of force, with the problems of unilateral military use of
force, “authorization” of military actions by the UNSC, the definition of aggression
and the concept of self-defence.
It was argued in the past by some prominent lawyers that Art. 2 (4) would
allow unilateral use of military force, if not directed against territorial integrity, or
political independence or is not inconsistent in any other manner with the purposes
of the UN Charter. Many other theories or doctrines, supporting the practice
of some states, to some extent have already eroded international law on the use of
force. There are various ideas on the use of force, acknowledging that there might
be situations when imperative political and moral considerations dictate the states
to act “outside the law”. The Report of Iraq Inquiry (Sir Chillcot report) may be
cited as an example of the abuse of political decisions. Some lawyers insist that in
international law the Latin proverb “
ex inuiria ius orbitur
” is valid. A very substantial
question is what differences exists between customary prohibition on the use of
force and prohibition in the UN Charter or how international customs have so
far “modified” Art. 2 (4). Another important issue is the relationship between
the “legality” and “legitimacy” of armed actions. It seems, in the light of political
developments in today’s world, that prohibition on the use of force is losing its legal
and political strength and meaning.
The author deals critically with the definitions of “aggression”, armed attack and
self-defence, with the rescue of nationals abroad, with intervention on invitation,
self-defence and armed attack by non-state actors or with cyber operations relating
to the use of force. The article stresses the relevance of the UN Charter and is in
favour of rigid interpretation of Arts. 2 (4) and 51. The interplay of treaty law and
international customary law exists without any doubt. Art. 31 (3) (b) of the Vienna
Convention on the Law of Treaties recognizes state practice as a primary element
of treaty interpretation. The wording of the prohibition of the use of force in
the UNSC Charter leads to some divergent interpretations, often influenced by
the political, military and economic interests of the relevant states. The attempt of
the UNGA Special Committee on Enhancing the Effectiveness of the Principle of
Non-Use of Force in 1981 to work out the World Treaty on the Non-Use of Force
was not successful owing to the divergent opinions of the states.
80
Already in 1970
T.M. Franck had asked a question of “who killed Art. 2 (4) of the UN Charter?”
His reply was that the renunciation of the use of force by the individual state is
only reasonable when it is assured that the UNSC is able to take steps for the
prohibition to succeed. Otherwise, in his view, Art. 2 (4) has become void.
81
After
80
Doc. A/36/41, GAOR, Supp. No. 41.
81
FRANCK ,T. M. Who killed Art. 2 (4): or: The Changing Norms Governing the Use of Force by
States.
AJIL
. Vol. 64, 1970, n. 2, pp. 809-837.