CYIL vol. 7 (2016)

JOSEF MRÁZEK

CYIL 7 ȍ2016Ȏ

e.g. under an “expanded doctrine of self-defence”, has no recourse in the UNCharter and

is controversial.

Various criteria for “legitimacy” were proposed to convey a principle for evaluating

uses of force that differs from “strict legality”. This article does not aim to contribute

crucially to the theoretical discourse on “legitimacy” in law. But the author refuses

categorically any idea as to the priority to be given to “legitimacy” over international

law norms. Feasibility of the state’s unilateral use of military force cannot from

the legal point be assessed by reference to the concept of legitimacy. But it is true

that “legitimacy” is often called in an effort to “justify” unilateral use of force,

disregarding legal restrains in both the UN Charter and international customary

law. The term “legitimacy” is explained e.g. as an alternative not only to morality

but also to law. Martti Koskenniemi wrote that legitimacy is a “mediate concept that

seems be rhetorically successful only so long as it cannot be pinned down to being

either a formal rule or an incident of some controversial theory of justice.”

There

is widespread scepticism as to the effectiveness of international law on the use of

force with regard to the gap between the prohibition of the use of military force and

real practice. The principle of the prohibition of force may contradict “legitimity”

and existing moral values. The crucial question for international lawyers to solve is

how far “divergences” from the prohibition of the use of force in the UN Charter

should not be seen as breaches of international law but as a customary modification

of this prohibition. There are a large number of legal problems and controversies

about the prohibition of the use of armed force and its developments in customary

international law. The principle of prohibition on the use of force has been considered

to be a peremptory norm of general international law (

ius cogens

), as a cornerstone of

the UN collective security system and as a basic rule of contemporary international

public order.

KOSKENNIEMI, MARTTI. Legitimacy, Rights and Ideology: Notes Towards a Critique of the New

Moral Internationalism.

Associations: Journal for Legal & Social Theory.

2003, p. 349;

AJIL.

2011,

Vol. 105, p. 394.