CYIL vol. 9 (2018)

MARTIN FAIX – ONDŘEJ SVAČEK

CYIL 9 ȍ2018Ȏ

4.2 How to Evaluate Practice? One of the crucial question concerning evaluation of State practice is, which criteria should be employed as a referential framework for assessment whether in a particular situation the use of force was permissible or not. Two major trends can be identified in international legal scholarship. 55 On the one hand, scholars present extensive interpretations of the possibilities to use force, typically encompassing broad definition of self-defense (including anticipatory and preventive self-defense), a rejection of a UN monopoly to authorize military actions, and the admissibility of humanitarian interventions. These writings are generally grounded in a non- positivist approach to international law. Considerations of morality, legitimacy or politics are taken into account together with the emergence of values of democracy, rule of law, and human rights. 56 This perspective might be described as a “policy-oriented” 57 or “value-oriented”. 58 On the other hand, proponents of restrictive school prefer a positivist oriented method to assess use of force in international relations. Generally, these authors explicitly or implicitly argue that broadening the possibilities to use force in the name of policy considerations, morality or other values would be too dangerous, as it would open the door to arbitrariness and misuse by major powers. To take the recent example of campaign against Syria (April 2018) again, it is possible to contend that this action was legitimate, because its aim was prevention of further usage of chemical weapons. The evaluation of this situation might therefore be similar as that presented by the Independent International Commission on Kosovo which concluded that usage of force by NATO against Yugoslavia in 1999 was unlawful but legitimate. 59 Authors agree with opinion of M. E. O’Connell that reference to legitimacy always blurs the line between law and morality. 60 The function of law is drawing a line between legality and illegality, any legal conclusion to be persuasive must stem from foreseeable legal argumentation and interpretation. Any reliance on meta-legal arguments undermines coherence of legal analysis. International law is not an exception therefore whether the use of force is legal should and must be found in the international legal rules. As M. Koskenniemi notes: “Key to persuasiveness is that the argument is recognizable as a good legal argument and not, for example, a strong moral point, a plausible political position, or a convincing sociological description of something”. 61 Moreover, and very importantly, international legal framework itself is objectively reflective of international morality and values. Such a value which is firmly incorporated into international legal system is sovereignty. From this perspective, any breach of existing legal framework is based on subjectivism. “When a national leader decides to violation the international law 55 CORTEN, O.: 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]. 56 Ibid . 57 Corten, O.: supra 2006, p. 809. 58 Value-oriented approach is introduced in doctrine not only with respect to evaluation of State practice but also with respect to formation of customary international law itself. Cf. Cannizzaro, E.: supra , p. 248. 59 The Kosovo Report. Conflict, International Response and Lessons Learned. The Independent International Commission on Kosovo . Oxford: OUP, 2000, p. 167. 60 O’Connell, M. E.: supra , p. 10. 61 KOSKENNIEMI, M.: Methodology of International Law [online]. In: The Max Planck Encyclopedia of Public International Law . Available at: www.opil.ouplaw.com [2018-07-07].

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