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ČESTMÍR ČEPELKA
CYIL 4 ȍ2013Ȏ
It is generally known that the prohibition of the use or threat of force in international
relations is a peremptory rule (
jus cogens
) not permitting any derogation.
Since the Second World War the thinking of States has changed, and according
to newly-established customary law all recognize that the use of armed force by a State
in order to repel an aggression is to be considered as lawful notwithstanding the general
prohibition on the use of such force. In other words, the using of self-defence as a form
of self-help is an enforcement of the cessation of this aggression, especially if it is
continuing. The exercise of the right of self-defence shall be immediately reported to the
UN Security Council and shall not in any way affect the authority and responsibility
of the Council under the UN Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
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5. Conclusions
The aim of this contribution is to draw the doctrine’s attention to another
possibility of how to accomplish undertake the existing draft articles on Responsibility
of States for internationally wrongful acts. And in this way, consequently, to surmount
today’s dilemma: to obtain the conclusion of an appropriate convention, or to be
satisfied with a simple recommending declaration of the UN General Assembly. After
all, the signing of a convention would be the most suitable way to conclude an
effort that has been going on for nearly 50 years. Moreover, a binding instrument is
the only way of providing security to States and establishing concrete mechanisms
for resolving differences that may arise in practice. Although the result of the work
of the International Law Commission on the topic of State responsibility should
take the form of a binding instrument, there are very many problems that necessary
adjustments, as well as further refinement and improvement, will remove.
As far as the declaration is concerned, it could hardly develop a new customary
law of State responsibility. This because the notion of countermeasures or (non-
forcible) reprisals as described by the ILC is inconsistent with legal thinking,
because this instrument was only treated in the past under circumstances precluding
wrongfulness. Nowadays it is a law-enforcement device which should induce
a wrongdoing State to comply with its secondary obligations arising from its
responsibility – these obligations being otherwise so unfulfilled. The notion of self-
defence is, according to the Commission, an exception to the prohibited use of force,
this rule being a primary one and therefore outside the scope of State responsibility.
But, it is generally recognized that self-defence serves as a law-enforcement device,
hence a secondary rule.
In view of all this and towards the promised possibility of how to escape from the
above stated dilemma: remain faithful to the concept of international responsibility.
The term “international responsibility” covers the new legal relations which arise
under customary international law by reason of the internationally wrongful act of
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Cf. Art 51 of the Charter of the United Nations.