CYIL 2012

JOSEF MRÁZEK CYIL 3 ȍ2012Ȏ in accordance with the Charter, including Charter CII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means ne inadequate and national authorities are manifestly failing to protect their populations…” 66 The NATO operation “Unified Protector” in Libya was empowered by UNSC resolution 1973 to take “all necessary measures to protect civilians and populated areas”. This operation was criticised by some countries (mainly by two members of the UNSC, Russia and China) for overstepping UNSC authorisation. This criticism was used by Russia and China in discussion in the UNSC about the possibility of military intervention in Syria. 67 This argument has been used also as reason for rejection of the draft resolutions proposed by the USA and its allies. Russia was worried, for example, by statements that compliance with Security Council resolution 1973 in Libya, which also imposed a no-fly zone, is in NATO’s interpretation a model for the future actions of NATO in “implementing the responsibility to protect”. 68 Any interpretation of “humanitarian intervention” should take into consideration that prohibition of the use of force embodied in Art. 2 (4) is a peremptory norm (jus cogens). This means it is “a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. 69 Implementation of the responsibility to protect still remains controversial. Most states and scholars would surely object to legalising unilateral humanitarian intervention which could be used as pretext for ulterior motives, such as to justify aggression. The states in any case would prefer “collective” interventions on behalf of the “international community”. The whole collective security system of the UN is based on the possibility of collective enforcement measures. There are circumstances which may exceptionally justify intervention in affairs of another state, but intervening states must act consistently with the prohibition of the use or threat of force laid down in the UN Charter and military action must be proportional and necessary. There are numerous previous legal opinions regarding the existence of non intervention in customary international law. The ICJ in the Nicaragua case confirmed its position expressed previously in the Corfu Channel case that “the alleged right of intervention as the manifestation of a policy of force has, in the past given rise to most serious abuses.” 70 Nevertheless, at the time being, the international community faces gradual changes in international law on the use of force through practice of states and 66 UN Doc. A/60/l.1 2005 World Summit Outocme, 20. Sept. 2005 (par. 139). 67 See http://www.ejiltalk.org/what_does_un_security_council_resolution_1973_permit/; SIPV. 6627, 4. Oct. 2011, p. 2. 68 UN Doc. S/PV. 6627. Russia stated: “The situation in Syria canot be considered in the Council separate from Libyan experiance. The international community is alarmed by statement that compliance with Security Council resolution on Libya in the NATO interpretation is a model for the future actions of NATO in implementing the responsibility to protect (p. 4). 69 Viena Convention on the Law of Treaties, May 23, 1969, Art. 53. 70 ICJ Reports 1986, p. 97 (para. 202).

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