CYIL 2015

RALPH JANIK CYIL 6 ȍ2015Ȏ considerations, 3 just war theory also knew the goals of advancing civilisation and to wage war in order to spread Christianity. 4 It goes without saying that, as the sovereign ruler who decided upon initiating war had no superior authority above him and since for some it was at least possible to imagine a war that was – subjectively and even objectively – just on both sides, the idea of just war was inherently prone to abuse. 5 Starting with Grotius, who arguably showed little interest in identifying which side to a war was ‘right’ and ‘wrong’, international law thus gradually shifted away from this dichotomy, 6 and by the 19 th century the use force as ultima ratio in order to resolve disputes was perfectly legal, and the question of righteousness had thus become irrelevant. 7 During the First World War, often described as the inevitable consequence of this approach, the idea of returning to the basic assumptions of just war theory gained increasing importance. To many, the collective security system of the Covenant of the League of Nations embodied an institutionalization of this idea. 8 And even although the Treaty of Versailles and the League of Nations system ultimately failed to prevent the Second World War, the founding fathers once again turned to the idea of institutionalizing and prohibiting the resort to violence 9 and decided to avoid any legal loophole 10 when trying to formulate Article 2(4) in the most clear, general and all-encompassing 3 Robert John Auraujo, ‘Our Debt to De Vitoria: A Catholic Foundation of Human Rights’ (2012) 10/2 Ave Maria Law Review 313; Charles H. McKenna, ‘Francisco de Vitoria: Father of International Law’ (1932) 21/84 Irish Quarterly Review 635. 4 See e.g , Thomas Alfred Walker, A History of the Law of Nations (CUP, 1899), pp. 95-104. 5 See Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33/4 The American Journal of International Law 665, 674-83. 6 For this decline, see Stephen C. Neff, War and the Law of Nations. A General History (CUP, 2005), 95 102 or C. G. Roelofsen, ‘Grotius and the Development of International Relations Theory: “The Long Seventeenth Century” and the Elaboration of a European States System (1997) 17 Quinnipiac Law Review 35, 50-51. 7 See, among the many prominent writers of the late 19 th and early 20 th century, e.g. Henry Wheaton, Elements of InternationalLaw (Little, Brown, and Company, 1866), 368; John Westlake, International Law. Part II: War (CUP, 1913), 1; Franz von Liszt, Das Völkerrecht. Systematisch dargestellt (Julius Springer, 1915), 301; Lassa Oppenheim, International Law. A Treatise. Volume II, War and Neutrality (Longmans, Green, and Co, 1906), 55-56. 8 Neff ( supra n6),290-293and314-317. Cf. ,however,WilhelmG.Grewe, Epochen derVölkerrechtsgeschichte (Nomos, 1984), 788, who describes the two conflicting views on the extent to which the system of collective security indeed marks a return to Grotius and the idea of just war. 9 As a reminder, the Preamble to the Charter emphasizes the founding fathers’ ambition ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.’ 10 For instance, under the hitherto arguably most crucial and significant step on the prohibition of war, the 1928 Kellogg-Briand Pact, its parties declared‚ that they condemn recourse to war for the solution of international controversies‘ and include, and renounce it, as an instrument of national policy in their relations with one another’ and thus arguably left open the possibility to legally resort to force short of war; see Derek Bowett, Self-Defence in International Law (Manchester University Press, 1958), 136.

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