CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ INTERNATIONAL LAW ON THE USE OF FORCE… positivist, i.e. legally and textually oriented approach. 4 But how is it possible that scholars come to different results even in cases which are almost perfectly clear in terms of applicable rules and their interpretation? How to explain positions of certain US scholars justifying the intervention in Iraq? And is the different position of Russian (international) legal community on annexation of Crimea 5 really (legally) unacceptable? The last mentioned high-profile controversy constitutes a great example, as has been demonstrated e.g. by A. Roberts, pointing out that the Western and Russian international lawyers “accepted different accounts of the facts, put forward different understandings of the law, and reached diametrically opposed conclusions on both the legality and legitimacy of what transpired.” 6 The diverging views can have different causes and can be explained by a variety of arguments. It is natural for international lawyers to live and produce their work in their own ‘international bubble’, which is shaped by their education and by external factors or incentives, such as censorship, pressure for alignment with official State policy or different level of academic freedom. The issue is of course much more complex, since the typology and amount of such factors is immense. What remains as a fact is that substantial (scientific) conclusions are significantly influenced also by how scholars think about international law, i.e. the question of the methodology used. The importance of methodological debate is obvious: a method used in a research process directly influences and predetermines the conclusions 7 and constitutes the first step which needs to be done to ensure high quality scholarship. Clarification of the method is therefore a prerequisite for proper understanding of any formulated outcome, giving and justifying the research with scientific legitimacy. This simple and almost obsolete statement however causes serious headache especially to researchers in the field of international law on the use force. This area not only constitutes the cornerstone of international legal order, but is also 4 For an overview of the approaches in the context of international law on the use of force cf. CORTEN, Olivier. Use of Force in International Law. Introduction [online]. In: Oxford Bibliographies in International Law . Available at: http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0005. xml [2018-07-07]. 5 The editors of the Heidelberg Journal of International Law , who brought together Western and Russian scholars to discuss the issue, highlighted in their introduction to the special issue on Crimea: “Hardly any “Western” politician or scholar deems Russia’s political course justifiable and justified under the precepts of international law. Inversely, from what we can perceive from the outside, Russian politicians and scholars seem confident to be able to properly justify the incorporation of Crimea within the framework of the existing international legal order. The crisis is matched by the absence of a serious legal dialogue among international legal scholars of both camps.” Cf. MARXSEN, Ch., PETERS, A., HARTWIG, M.: Introduction, Symposium: The Incorporation of Crimea by the Russian Federation in the Light of International Law. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht [ Heidelberg Journal of International Law ]. 2015, vol. 75, pp. 3-5. 6 ROBERTS, A.: Crimea and the South China Sea: Connections and Disconnects Among Chinese, Russian and Western International Lawyers. In: ROBERTS, A. et al. (eds.) Comparative International Law . Oxford: OUP, 2018, pp. 111-139. 7 In the specific context of prohibition of the use of force Corten even notes that (based on a comprehensive analysis of the doctrine) the debate is more about methodology than substance. Cf. CORTEN, O.: The Controversies over customary prohibition of the use of force: a methodological debate. European Journal of International Law . 2006, vol. 16, no. 5, pp. 803. An example demonstrating how methodology can have a direct influence on the very content and outcome of the legal research (extending radically the scope of self-defence in the same time) provides e.g. KAJTÁR, G.: Self-defence against Non-State Actors – Methodological Challenges. Annales Universitatis Scientiarum Budapestinensis de Rolando Eotvos Nominatae: Sectio Iuridica . 2013, vol. 54, pp. 307-332.

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