CYIL 2011

JOSEF MRÁZEK CYIL 2 ȍ2011Ȏ reasons, international law of the use of force is at a crossroads and the international community will be challenged by new development. The way how international law responds to this challenge will be of fundamental importance to international security. At present, the tendency to enforce protection of “human rights and democracy” against tyranny at international level is greater than ever before. There is a large number of unilateral armed actions described as “preventive” or “pre-emptive” self defence, humanitarian interventions or “anti-terrorist war”. It seems, however, that the extensive approach to the use of armed force does not bring expected results. There is a danger that this approach could lead to the general acceptance of gradual relaxation on the use of armed force, undermining so the UN Charter. It can be argued that there are already precedents for extensive interpretation of self-defence as a customary law. Customary international law is based on two basic elements. Besides the practice of states as a constitutive element (usus longaevus) there must be opinio iuris as a legal conviction. In the Nicaragua case, the ICJ affirmed that practice was significant only to the extent that it was accompanied by legal justification.

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