Vol. XXXVIII / 1 - Studia Moralia

ONLY THE SOVEREIGN MAY DECLARE WAR AND NATO AS WELL 199
concept of knowledge in the positivist sense.
Accordingly, it recognizes objectivity as the criterion for
knowledge proper. But the validity of this criterion with regard
to representativity, 6 for example, is questionable as well. Thus
positive law fares no better than natural law which appeals to
“God” instead of objectivity. At the abstract level, the appeal to
the universality or objectivity of either natural or positive law is
useful for as long as it is emptied of all concrete content. Applied
to concrete situations, it assumes a concrete character which is
decisive in the decision on whether or not war is permissible. It
is thus the prevailing moral convictions at the time which are
decisive in endorsing the permissibility or otherwise of a
particular war. On this showing, it is not legality or lawfulness
which is a primary consideration. Morality is primary in the
sense that often positive law relies upon it to found and justify
its principles. This it does through specifically legal language.
Permissibility therefore speaks, in the first instance, to the
morality rather than the legality of war. Accordingly, posing
permissibility as a question of disjuncture between morality and
legality is justifiable if the purpose is to demarcate the two
spheres. However, the inextricable intertwinement between the
two means that it is simultaneously a moral and legal question.
In the context of the just war theory, permissibility refers
also to the principles that govern the initiation of war (ius ad
bellum) and those that regulate its conduct (ius in bello). We
propose to focus on the principles pertaining to ius ad bellum.
One of the principles of ius ad bellum is that only the sovereign
may declare war. The reason for our focus on this principle is
that it is pertinent to determine whether or not it has been
rendered obsolete by the NATO declaration of war on Belgrade.
Another is that there must be a just cause (iusta causa).
Indisollubly linked to this is the principle of the right intention
(intentio recta). These principles will be used as the basis to
examine the validity or otherwise of NATO’s appeal to human
rights violations as the permissible cause of war. In this
6
See, the introduction by Harding, Sandra and Hintikka, Merrill in
their edited work, Discovering Reality, D. Reidel Publishing Company:
Dordrecht 1983.