CYIL 2012

JOSEF MRÁZEK CYIL 3 ȍ2012Ȏ to the UNGA entitled “In larger freedom” in 2005. 58 The concept of responsibility to protect civilians, including the use of force as a last resort, was also endorsed also by World Summit in September 2005. It is also necessary to mention the significant role of regional organisations. The Constitutive Act of the African Union of July 11, 2000 stipulates in Art. 4(h) “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” Such intervention must be authorised by “two-thirds of the members.” It seems that previous approval by the UNSC according to Art. 53 of the UN Charter is not required by this Constitutive Act. This stipulation is in contradiction with Art. 53(1), which stipulates that “no enforcement action shall be taken under regional arrangements or regional agencies without the authorisation of the Security Council…”. V. Conclusion Nowadays there is a growing tendency to overestimate the role of military power in foreign policy. It seems that after the Cold War the world is even returning back to the “Realpolitik” described by H. Morgenthau in 1940. 59 T. Franck, with regard to the law pertaining to recourse to force, mentioned the “confluence” of two different tendencies. One is the tendency to use power “to achieve recognition of its own legitimacy by ignoring the law” and the other is that “law can adopt through practice, that violations of law may be one form of practice that can have the effect of changing it”. In this connection he has spoken about the tendency of growing numbers of “realists” to believe that “only calculations of power and self interest, but not normativity”, enter “into states’ ‘rational choice’ of their actions.” He refused the “siren song” of a world order created through the “rational choice of a single superpower” and stressed the significance of “rational choice represented by adherence to the rule of law.” 60 The NATO armed action in Kosovo in 1999 (seventy-eight-day air bombardment) revived the old discussions on humanitarian intervention. The United Kingdom was the main proponent of humanitarian justification of this action. Humanitarian arguments were put forward for justification of the US and UK action against Iraq (in Operation Desert Storm in 1996). The USA, the UK and, to a lesser extent, France intervened in Iraq to protect civilians, subsequently proclaiming no-fly zones. In the past, after adoption of the UN Charter, states often did not invoke often the doctrine of humanitarian intervention and preferred to rely on the right of self-defence. It seems that most countries did not regard the NATO operation in 58 In larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary General, UN Doc. A/59/2005, see http://www.un.org/largerfreedim/contents.htm; UN Doc. A/63/677, Report of the Secretary General 12. January 2009, Implementing the responsibility to protect. 59 Morgenthau H.J., Positivism, Functionalism and International Law , 34 ASIL 1940, p. 260. 60 Franck T., The Power of Legitimacy and The Legitimacy of Power: International Law in Age of Power Disequilibrium, AJIL Vol. 100, No 1, p. 100-101.

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