CYIL 2012

JOSEF MRÁZEK CYIL 3 ȍ2012Ȏ Nevertheless there is still disagreement on the exact interpretation of Art. 2 (4) and its relation to customary international law. Many US commentators, as Ch. Gray notes, argued that the interpretation of Art. 2 (4) depended on the effective functioning of the UN collective security system and that Art. 2 (4) “should be read to allow the use of force to further world public order or the principles and purposes of the UN.” 25 According to the ICJ judgment in the Nicaragua case “the principle of non intervention involves the right of every sovereign state to conduct its affairs without outside interference”. The Court observed that “it is part and parcel of customary international law” and that “the existence in the opinio juris of states of the principle of non-intervention is based by established and substantial practice”. 26 The judgement enumerated numerous declarations adopted by international organisations and conferences in which the principle of non-intervention was reflected. In the Court’s view “the principle forbids all states or groups of states to intervene directly or indirectly in internal or external affairs of other states.” The ICJ also mentioned a number of instances of foreign interventions for the benefit of forces opposed to the government of another state. In this connection, the Court observed that “for such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention.” In addition the Court found that “no such general right of intervention in support of an opposition within another state, exists in contemporary international law” and concluded that “acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.” 27 In 1949 in the Corfu Channel case the ICJ observed that “the alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to most serious abuses and such as cannot, whatever be the present defects in international organisation, find a place in international law… from the nature of things, it would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice itself.” 28 In support of “armed intervention” the ICJ approach was criticised by several international lawyers for narrow interpretation of the prohibition on the use of force, on the restrictive nature of acts constituting armed attack “triggering” the right of self defence. 29 Some international lawyers are speaking about new post-Cold War era of humanitarian intervention. 30 But it is also true that some lawyers expressed concern 25 Gray Ch., International Law and the Use of Force , Oxford 2004, p. 30. 26 ICJ Reports 1986, see note 24. 27 Ibid., pp. 98-101 (para. 205-209). 28 ICJ Reports 1949, the Corfu Channel case pp. 34-35. 29 Ruys T., Armed Attack and Art. 51 of the UN Charter, Evolutions in Customary Law and Practice, Oxford 2010. 30 Glennon M. J., The New Interventionism: The Search for a Just International Law, Foreign Affairs, May, June 1999, p. 2.; Oxford Anne, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law, Cambridge, New York 2003, p. 1.

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