CYIL vol. 9 (2018)

MARTIN FAIX – ONDŘEJ SVAČEK

CYIL 9 ȍ2018Ȏ

1. Introduction This contribution was prepared for the edition of the Czech Yearbook of Public and Private International Law commemorating the hundredth anniversary of creation of independent Czechoslovakia. Without any exaggeration, use of force has a special role to play in history of Czechoslovakia. From the very beginning of its existence, young republic must have defended its territory against Poland and Republic of Councils in Hungary. These wars were fought in environment of traditional international law yet where the use of force was still not prohibited. Just 50 years later, in 1968, Czechoslovakia was invaded by the Soviet Union and other members of the Warsaw Pact to halt the pro-democratic reforms. The contribution which focuses on current (methodological) challenges concerning use of force in international law therefore perfectly fits to portfolio of topics which should be discussed when commemorating 100 years of Czechoslovakia. In 2010, in the foreword to O. Corten’s book on use of force, B. Simma drew a dark picture of the then state of international law on the use of force: “More and more, legal justification of the use of force within the system of the Charter is discarded even as a fig leaf, while an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force”. 1 Since then, the United Nations system of maintenance of peace and security has continued to be challenged extremely. Certainly, violations of international law occur every day. However, if cardinal principles of international law, i.e. ius cogens rules are encroached or violated, such situations trigger intensive debates on the consequences for the whole international community and international law. Thus, it is not surprising that international law finds itself at the outset of an extremely controversial debate on the further viability of the limits on unilateral military force established by the United Nations Charter. International lawyers and scholarly works play in general an important role of helping to analyze and assess such developments, determine what is international law, how it works and what is the content of the obligations arising from it. Finally, Article 38 (1)(d) of the ICJ Statute lists scholarly works as one of the formal sources of how international law is determined. 2 However, symptomatic for debates assessing relevance, scope but also consequences for international law of events such as the annexation of the Crimea, intervention in Libya or incidents during the Syrian conflict, is not only the variety of doctrinal approaches adopted, but a deep ambivalence among them. The huge divide among scholars in assessment of current legal framework concerning use of force in international law was denoted by Corten even as a “dialogue of the deaf ”, 3 which goes even beyond the two major trends to be distinguished in international legal scholarship, the extensive (often value based) approach, and restrictive 1 SIMMA, B.: Foreword. In: CORTEN, O.: The Law against War: The Prohibition on the Use of Force in Contemporary International Law . Hart Publishing: Oxford and Portland, 2010, p. viii. 2 Cf. Statute of the ICJ Art 38(1), referring to international conventions, international custom, and general principles of law as sources of law and judicial decisions and the teachings of the most highly qualified publicists of the various nations as a subsidiary means for the determination of rules of law. Although this article lists the sources that the ICJ is using for deciding cases, it is accepted that it reflects the sources of international law more generally. 3 CORTEN, O.: The Law against War: The Prohibition on the Use of Force in Contemporary International Law . Hart Publishing: Oxford and Portland, 2010, p. 27.

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