CYIL 2011

THE RIGHT TO USE FORCE IN SELFǧDEFENCE states remained firmly attached to a narrow conception of self-defence”. 67 In a well known declaration, the Russian Government stated that Russia would intervene in the former Soviet republics using force to protect their nationals. Similar Russian Government statement was given with regard to terrorist activities abroad directed against Russia. Various “rescue actions” were taken in the past without approval from the UNSC. “Humanitarian interventions” or military action taken to protect “human rights and democracy” still remain controversial and may even have negative political and legal effects. Art. 51 of the UN Charter assigns a decisive role to the UNSC. The right of self-defence is one of the most fundamental and, at the same time, the most controversial issue in international law. The same applies to the principle of the use of force which, in fact, is the other side of the same coin. Despite many lawyers’ effort and ICJ activities, the scope of lawful self-defence remains open to different interpretations. The decisions taken by the US and the UK to use military force against Iraq in 2003, and to carry out, back in 2001, military attacks in Afghanistan without the authorisation from the UNSC, raise the question of when the use of force can be justified, what are the limits of armed operations, what are the legal constraints on self-defence etc. Examination of the lawfulness of the Operation Iraqi Freedom and Operation Enduring Freedom still gives rise to detailed debate concerning their impact on international law and its extent. In his 2009 Nobel Prize Lecture, President Obama noted that new challenges required “to think in new ways about the nation of just war and imperatives of a just peace”. He repeatedly added that “force may sometimes be necessary” as “a recognition of history, the imperfection of man and the limits of reason”. He said that “force can be justified on humanitarian grounds” and “all responsible nations must embrace the role that militaries with a clear mandate can play to keep the peace…” The same should be applied to those “who violate international laws by brutalizing their own people” and therefore “there must be consequences …” The speech stressed clearly necessity to use military force whenever it is necessary for humanitarian reasons. Reference to medieval “just war”, however, may raise the question of who will decide that a war is “just” or “unjust” (bellum iniustum). The notion of medieval “just war” (bellum iustum) was originally developed by theologians. Under classical international law, self-defence was reason for a “just war and served very often as a justification for the use of force in measures short of war. Substantial extension of the right of self-defence beyond that provided in Art. 51 may lead to reappraisal of ius ad bellum and to removal of the existing restrains on the right of self-defence within the existing international law order. It means that the present UN collective security system may even be at risk. Enlargement of “legal” reasons enabling unilateral resort to armed force, might take us back to the 19th century, when no limits on waging the war were imposed. For the above

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67 Gray, Ch., fn. 1, at p. 135.