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The Search for World Peace |
PART FOUR:
AGGRESSION DEFINED BY CONSENSUS
When the session of the Special Committee opened in New York in March 1974 there was a mixture of optimism and some apprehension among the delegates. Some members of the "old crew" who had worked so well together in Geneva the year before were still on hand. Professor Bengt H.G.A. Broms, of Finland, who had effectively served as Chairman of the Working Group in Geneva, and who had published a book on the definition of aggression, |69| was quickly elected Chairman of the Special Committee. Dinos Moushoutas of Cyprus, who had followed in the tradition of his Ambassador, Zenon Rossides, as an ardent champion of a definition, was one of the vice-chairmen. Joseph Sanders of Guyana, who had shown great skill and imagination in finding accommodations in 1973 was elected Rapporteur. George O. Lamptey of Ghana, who had earned great respect as a persuasive spokesman for some of the non-aligned states, was also present. The United States delegation was now headed by Robert B. Rosenstock, who had established a good working relationship with the veteran Soviet representative, D.N. Kolesnik. They were to form the nucleus of an effective team which would drive the consensus definition home. Perhaps, most important, the spirit of detente was in the air. |70|
The new General Counsel of the U.N., Prof. Erik Suy, opened the session by declaring that a generally acceptable definition, even if it failed to be perfectly clear on all points, would be of great importance. He reminded the delegates that the General Assembly had suspended consideration of the draft code of offences against the peace and security of mankind and the problem of an international criminal jurisdiction until aggression was defined. |71|
Apprehensions arose from the fact that the progress achieved represented a very delicate balance of interests which could easily be upset. There was no way of knowing whether the new representatives would want to start again close to the beginning, and whether they would have sufficient flexibility and authority to move the definition across the finish line. If the job was to be done in the few weeks allocated to the Committee it would be necessary to have a division of labor which would make it possible to proceed simultaneously on all fronts. The Working Group was split into Contact Groups and negotiating teams, which could meet informally and in private to try to hammer out compromises on the text of the various articles still in dispute. By frequently working late into the night, and on week-ends, it was finally possible the night before the scheduled close of the Special Committee meetings on Good Friday, April 1974, to put together a definition of aggression which could be endorsed by the consensus of the 35 nations in the group. It would still have to convince the 138 nations in the Legal Committee, but by any standard it was a historic achievement. (DOCUMENT 26).
The Special Committee recommended that the General Assembly adopt the following draft definition of aggression:
The General Assembly,
Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,
Recalling that the Security Council, in accordance with Article 39 of the Charter of the United Nations, shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security,
Recalling also the duty of States under the Charter to settle their international disputes by peaceful means in order not to endanger international peace, security and justice,
Bearing in mind that nothing in this definition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations,
Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage,
Reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity,
Reaffirming also that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter, and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof,
Reaffirming also the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations,
Convinced that the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim,
Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination.
Adopts the following definition of aggression: |*|
Article 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.
Explanatory note: In this definition the term "State":
(a) Is used without prejudice to questions of recognition or to whether a State is a Member of the United Nations;
(b) Includes the concept of a "group of States" where appropriate.
Article 2 The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has beer committed would not be justified in the light of other relevant circumstances including the fact that the acts concerned or their consequences are not of sufficient gravity.
Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State, which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
Article 4 The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.
Article 5 No consideration of whatever nature, whether political, economic, military or otherwise, may serve as justification for aggression.
A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
No territorial acquisition or special advantage resulting from aggression are or shall be recognized as lawful.
Article 6 Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.
Article 7 Nothing in this definition, and in particular article 3,could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.
Article 8 In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.
When, in October 1974, the Sixth Committee met to consider the draft of the consensus definition the world situation was once again tense. During the summer, war had erupted in Cyprus when Greek troops staged a coup d'état only to be ousted by invading Turkish troops which seized control and demanded partition. A world-wide Conference on the Law of the Sea had left unresolved some delicate questions concerning the rights of states with reference to their adjacent waters. The situation in the Middle East remained highly explosive. While the Sixth Committee was discussing aggression the General Assembly invited the Palestine Liberation Organization to participate in its deliberations on Palestine. The Israel government, citing the murder of Jewish athletes at the Olympics, and other atrocities, denounced the invitation as an encouragement of terrorism. All of these events were to have an impact on the definitional debate as the consensus threatened to come apart at the seams. The reaction of the Sixth Committee members is reflected in the following analysis of each provision of the proposed definition.
(2) Analysis of the Draft Definition
A reading of the text of the definition without knowing the background and the thinking of some of the parties might prove deceptive. The following analysis seeks to sketch some of the problems faced in the process of reaching agreement. Paragraph numbers and explanatory captions have been added, in parentheses, for easier identification and clarification of the overall pattern.
THE PREAMBLE (First Preambular Paragraph — Refers to Fundamental U.N. Purposes)
The General Assembly,
Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,
The text finally adopted was identical with the one earlier proposed by the USSR, and the Thirteen Powers. |72| It is an extract from Art. 1 of the Charter, except that it has omitted the phrase "to the end" before "to take collective measures ..." It also failed to mention the settlement of disputes "by peaceful means and in conformity with the principles of justice and international law" as set out in the Charter. In the previous meeting of the Sixth Committee the Israel representative, Shabtai Rosenne, had cautioned against needlessly straying from the specific text of the Charter. |73| This variation from the Charter language intended no substantive alteration.
(Second Preambular Paragraph — Recalls Security Council's Responsibility)
Recalling that the Security Council, in accordance with Article 39 of the Charter of the United Nations, shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security,
The wording is identical with Article 39 of the Charter, and required only a slight restructuring of the draft submitted by the Six Powers. |74| The earlier USSR draft and Thirteen-Power draft had omitted the charter words "make recommendations, or", which would seem to be logical, since the power to decide obviously includes the power to decide to make a recommendation. The French delegate had objected to a reference to Article 39 without some reference to Article 51 dealing with self-defense, |75| but in this paragraph, in contrast with the preceding one, the precise language of the Charter prevailed. The power of the Security Council was to be further reinforced by Preambular Paragraph Four and the texts which followed in substantive Articles Two, Four, and Six.
(Third Preambular Paragraph — Recalls Duty to Settle Disputes Peacefully)
Recalling also the duty of States under the Charter to settle their international disputes by peaceful means in order not to endanger international peace, security and justice,
The Six-Power draft and the Thirteen-Power draft had included such language in their preambles. |76| The Charter itself used as lightly restructured text to convey the same idea. |77| The Charter language had been taken over verbatim in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, which had finally emerged after seven years of drafting effort. |78| The Declaration on the Strengthening of International Security also followed the Charter text, |79| but the Special Committee did not consider itself glued to the Charter wording.
(Fourth Preambular Paragraph — Reserves Powers of U.N. Organs)
Bearing in mind that nothing in this definition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations,
The gist of the above provision was proposed for the first time in 1973. |80| The final text of 1974 varied the wording a bit by accepting the Japanese suggestion to substitute the Charter words "functions and powers" for the previous "rights and duties". Iraq picked up another Japanese point by proposing "affecting the scope of" rather than "extending or diminishing".
Madagascar suggested that the phrase after the word "Charter" be deleted as redundant, but the U.K. and France insisted upon the specific reference to the "powers of the organs of the U.N." For some, like the British, the paragraph meant that the existing powers were not to be limited, while to others it meant that the powers were not to be expanded. The Spanish Delegate, Mr. A. Elias, mindful of the very broad discretion granted to the Council under the wording of substantive Article 2, feared that the Council might decide to exculpate those responsible for clear acts of aggression by declaring that it was not aggression. He did not think that the Council should be granted new powers to pardon international crimes. Preambular paragraph four helped to calm some of his apprehensions.
The scope of the Charter provisions can only be based on the Charter itself, and amendments are only possible pursuant to Chap. XVIII. The reassertion therefore that certain Charter provisions could not be modified by the definition of aggression might seem to be restating the obvious, but this was only the first of several safeguarding clauses designed to restrain the definition from going further than some of the parties intended.
(Fifth Preambular Paragraph — Stresses Urgency of Defining Aggression)
Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage,
The suggestion that such a provision be written into the preamble also appeared only in 1973, |81| and was adopted in 1974 practically without alteration. |82| Many of the smaller states had expressed concern about the use of bacteriological, chemical and nuclear weapons, which they would have like to outlaw completely. The reference to "all types of weapons" was designed to allay their fears. The Soviet Union would have preferred a reference to the Assembly Resolution prohibiting the use of nuclear weapons, |83| and Romania suggested that reference be made to the "permanent prohibition of the use of nuclear weapons. |84| Since none of the treaties on the limitation of nuclear weapons had in fact been universally accepted, the Romanian proposal was an overstatement.
The United Kingdom noted that "all weapons" encompassed nuclear weapons, and France added that by referring only to nuclear weapons it would water-down the attempt to emphasize the need to define aggression "at the present stage" when there were so many types of weapons of mass destruction. This was probably a rationalization since the phrase "at the present stage" seemed to be a carry-over from an earlier Soviet draft which dealt only with "armed aggression", and sought to defer consideration of the more contentious "indirect aggression" to a later stage, after an agreement on armed aggression had been reached. |85|
(Sixth Preambular Paragraph — Rejects Use of Force for Prohibited Purposes)
Reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity,
The 1969 Soviet proposal had contained a preambular paragraph that using force to deprive dependent people of their right to self-determination was a denial of human rights and contrary to the Charter. |86| By referring to General Assembly Res. 1415 (XV), and repeating it in the substantive definition, it was clear that it was intended to benefit only those who were struggling against colonialism. The Thirteen Powers had been content to rely on a general reference to the provisions in the Charter concerning self-determination, sovereignty and territorial integrity. |87| The Syrian delegation had been particularly interested in preserving the specific right to use armed force by those seeking self-determination. |88| Consideration was also being given to a reaffirmation of the principle as stated in the "Friendly Relations" Declaration to the effect that:
Every state has the duty to refrain from any forcible action which deprives people.., of their right to self-determination and freedom and independence. |89|
It was the Spanish delegate who insisted in 1974, upon the addition of the final balancing clause protecting territorial integrity, and it was the American Mr. Rosenstock who reminded his colleagues of the corollary from the "Friendly Relations" Declaration that self-determination does not legitimize the dismemberment of law-abiding States.
The problem of how to reaffirm the right to self-determination and still restrain the use of force was to become one of the most vexing dilemmas facing the Special Committee. The issue came into sharper focus later in substantive article seven dealing with the same subject.
(Seventh Preambular Paragraph — Reaffirms Inviolability of Territory)
Reaffirming also that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter, and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof,
The text was a slight variation of the wording contained in the "Friendly Relations" Declaration on the Strengthening of International Security, which had provided that:
The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. |90|
The new wording, as in the last clause added to Preambular Paragraph Sixth, placed added emphasis on respect for territory, by prohibiting "even temporary" occupation, and using the pejorative "violated". Even the attempt to restrict the protection by inserting the word "armed" before "force" was defeated. |91|
Several States, led by Romania, wanted to delete "in contravention of the Charter", |92| but it was just that saving clause which made the rest of the provision acceptable to others. The United States noted, for example, that it was in military occupation of West Berlin, but it was not in contravention of the Charter which specifically authorized such action under Article 107 dealing with transitional arrangements arising out of World War II. Egypt would have accepted the point by referring to Article 107 in a footnote. It was noted in opposition to the deletion that occupation might also be required under Article 42, if authorized by the Council, or under Article 51 in self-defense. The Soviets, the United Kingdom, Japan, Columbia and Ghana expressed agreement with the United States view. |93| Romania continued to insist that the burden of proving contravention should not be placed on the victim, and proposed that the Article begin with "Reaffirming also that, in accordance with the provisions of the Charter ...." an idea which found some support from Guyana and Iraq. The price for agreement was the addition of the final phrase, which was added only in 1974, "and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof."
(Eighth Preambular Paragraph — Reaffirms "Friendly Relations" Declaration)
Reaffirming also the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations,
The Contact Group decided to insert this additional paragraph as a compromise which arose when they were debating the provision in Article 5 of the substantive text relating to the legal consequences of territorial acquisition resulting from aggression. |94| The "Friendly Relations" Declaration stated that "No territorial acquisition resulting from the threat or use of force shall be recognized as legal". |95| Incorporating the "Friendly Relations" Declaration by reference in the preamble served to reinforce the same principle, which was to be restated later in less precise and ungrammatical language. |96| An explanatory note was also to be added driving the last nail into the coffin by once more drawing attention to "the inadmissibility of territorial acquisition resulting from the threat or use of force." |97| The interplay between preamble and substantive text was to appear repeatedly and their interdependence was explicitly confirmed in the final substantive article. |98|
(Ninth Preambular Paragraph — Outlines Usefulness of a Definition)
Convinced that the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim,
A similar provision had appeared in the original Soviet draft of 1970, |99| and had encountered no serious opposition, although France thought it rather weak. |100| The following had proved unobjectionable in 1972 and 1973:
Convinced that the adoption of a definition of aggression would have a restraining influence on a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to stop them and would also facilitate the protection of the lawful rights and interests of the victim and the rendering of assistance to the victim. |101|
The Romanian delegate, who had not been present at Geneva the year before, came forward with suggested changes. |102| He proposed to tack on a phrase saying "inconformity with the provisions of the Charter," reasoning that since aid to the victim should be regulated by the Charter there should be a reference to it. He also preferred "the effect of deterring" rather than "have a restraining influence on." His first proposal found no support, but once having reopened the debate it was not long before other delegates came forward with other suggested improvements.
Italy proposed, and there were no objections, that "lawful rights and interests" be replaced by "the rights and lawful interests". The United States thought that "should" would be more precise than "would." The British thought it naive to assume that a definition would really have a material impact on aggression and suggested that the preamble merely "express the hope that ...", which Canada thought would be a neat balance between realism and idealism. Various formulations combining "hope," "should," "would," "will," "convinced," "believing," "deterring," "discouraging," "dissuading" were tried, including the appropriate translations in English, French and Spanish. The formulation which fit the foot of all the delegates, without too many cries of pain, was the stilted compromise which emerged as the final text.
(Tenth Preambular Paragraph — Notes Need to Consider All Circumstances)
Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination.
Adopts the following definition of aggression:
Only one word was altered in the text which had appeared and had been accepted in 1973, and that was to substitute the word "desirable" for the word "appropriate", as suggested by Guyana. The provision itself was designed to reaffirm the flexibility which existed in determining whether aggression had been committed, and at the same time to give support to the view of many smaller states that the exercise of the Council's discretion could not be completely arbitrary since the definition would have to serve as a guide.
Viewed in its totality the long preamble presents some puzzling features. The primary purpose of a preamble should be to indicate, in clear and unambiguous terms, the motivation and basis for the declaration which follows. If measured by that yardstick the preamble to the definition of aggression could have met the objective by restricting itself to the first three paragraphs together with paragraph nine. Following the precise terminology of the Charter, as was done in only the second preambular paragraph, might have avoided a search for hidden meanings in the minor variations which were written into the first and third paragraphs. In fact the variations had no specific justification or purpose other than freedom from restraint.
To someone not familiar with the background bargaining, several of the preambular provisions must appear to be either redundant, irrelevant or unnecessary. Paragraph four would seem to be stating the obvious. The Fifth Paragraph is inartistically drawn, and carries with it a no-longer-applicable vestige of an earlier draft. Paragraphs Sixth, Seventh and Eighth are not essential in a definition of aggression, and, to a large extent, are repetitive of what appears elsewhere. The feeling cannot be avoided that they were inserted largely to influence political problems of the day rather than long range peace-keeping efforts.
Even the joining clause: "Adopts the following definition of aggression", was accepted with little thought and no discussion, as an improvisation of the last moment when it was detected that the phrase was lacking in the draft. It fails to meet an objection which had been made years ago that the definition should not be made to appear like an exercise in grammar. |103| The usual joining phrase: "Declares that", would have given greater strength to the definition, by implying that it was declaratory of existing law, but for lack of time it was not even discussed.
The recital of a few shortcomings should not diminish the appreciation of the great difficulties inherent in trying, under great stress and pressure, to obtain a consensus for a complicated agreement. The reader should be aware that some of the peculiarities which appear were not the product of a careful and deliberate design with profound and subtle significance. The preamble was both a product and a vehicle of compromise, and should be read, understood, and accepted in that light.
THE SUBSTANTIVE DEFINITION
Article 1 (The General Definition of Aggression)
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.
Explanatory note: In this definition the term "State":
(a) Is used without prejudice to questions of recognition or to whether a State is a Member of the United Nations;
(b) Includes the concept of a 'group of States" where appropriate.
By 1972 the members of the Special Committee had reached essential agreement on the text of the general definition. There were then only three points of difference. Some states insisted that there be reference to "sovereignty", |104| the inclusion of which was finally accepted. Some states wanted it spelled out that "territorial integrity" encompassed protection for territorial waters and air space, but the point was not accepted. Indonesia, in the Sixth Committee, simply added it by interpretation. |105| The most time consuming difficulty related to the insertion of the phrase "however exerted" after the word "force", but this point too was finally dropped. An examination of some of the points raised in the debate may help clarify the thinking of the parties.
The Soviet Union had objected to the inclusion of the word "sovereignty", which had first appeared in the Thirteen-Power draft, |106| on the grounds that it was superfluous, since force used against "political independence" was practically the same thing as force used against "sovereignty". The Soviets solved the difficulty by stating in the Sixth Committee that the inclusion was accepted on the understanding that violation of "sovereignty" meant "armed encroachment on the territorial integrity or political independence of a State". |107| As far as the USSR was concerned the word "sovereignty" was simply erased by interpretation.
The phrase requiring that the force be "in any other manner inconsistent with the Charter" was denounced as a loophole by Kenya and found objectionable and ambiguous by Paraguay. |108| It seemed to allow some room for aggressor states to argue that their action was not aggression since they did not consider it to be inconsistent with the Charter. These doubts were overcome in the Committee by the reaffirmation in various subsequent articles that the determining body would only be the Security Council.
The six Powers had originally sought to prohibit force "overt or covert, direct or indirect", |109| and this was eventually modified by suggesting that the reference be to force "however exerted". |110| Many States also opposed a reference to force "however exerted" since they shared the Soviet fear that the broader language might increase the risk that a mere breach of the peace might be treated as an act of aggression. |111| The need for the broader terminology was diminished and the phrase was dropped once the deal had been made to list various forms of indirect aggression among the aggressive acts. |112| The Americans noted the inter-relationship between the different articles and that not every illegal use of force could be denominated as aggression, but only those "as set out in this definition." |113|
The "Explanatory Note" arose as a consequence of a protracted debate, extending over a period of years, regarding the political entities to which the definition should apply. All drafts other than the one submitted by the six-Powers referred to actions by "States". The six-Powers also spoke of "political entities" delimited by international boundaries. |114| Once it became apparent that the six-Powers were merely trying to cover clearly defined territories whose statehood was disputed, such as existed in Germany, Vietnam, Israel, China, Korea and Rhodesia, the compromise began to emerge. |115| The reference to a "group of States" brought objections in the Sixth Committee from the newly admitted German Democratic Republic. The GDR was opposed to any notion of collective responsibility. |116| Hungary expressed similar concerns, |117| as did Japan, |118| and these views were calmed by adding the concluding clause: "where appropriate."
The indomitable Romanian delegate, Mr. D. Ceausu, proposed that the words "provisions and principles of" be inserted between the words 'the" and "Charter", and also that a paragraph be added to Article 1 in order specifically to preclude certain acts as possible justification for aggression. The first proposal was rejected, and the second was eventually accepted as part of Article 5. |119|
A bird's-eye view of Article 1 reveals several points which could give rise to questions. At the outset, it may be noted that Article 1 is obviously based on the prohibitions contained in the Charter's Article 2 (4):
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Yet, there are several important variations from the language and content of the Charter restrictions.
Article 1 of the consensus definition makes no reference to the threat of force, which some of the Nuernberg tribunals held to be an act of aggression even though the victim state, in the face of overwhelming power, surrendered without engaging in war. |120| At least some of the Members intended that threats in themselves would not constitute aggression which would give rise to criminal responsibility. This was made clear in the discussions of substantive Article 5, which follows.
The explicit protection of "sovereignty" in the draft definition, even though it is not mentioned in the Charter, seems to strengthen a concept which runs counter to the reaffirmation of the interdependence of all states, and the notion that nation states must, as an independent perception of their common interest, surrender some of their sovereignty if there is to be effective control over the use of armed violence. |121| Article 2 (4) of the Charter speaks of "any"state rather than "another" state, and it refers to "Purposes",whereas Article 1 of the definition refers to the "Charter" itself, which covers both the purposes and the procedures. |122| These variations of the Charter language, without any record justifying or explaining the change, only serve to further enfeeble a provision which some scholars are already inclined to consider dead. |123|
The concluding phrase "as set out in this definition", following immediately after the reference to the Charter, might seem to modify the Charter rather than the word "aggression", which appears at the start of the article. There is no indication that such an interpretation was intended by the strained construction of the sentence, but the phrase itself might be seen as an additional loophole.
The awkward placement of the "Explanatory Note", the first part of which Greece wanted included in the body of the text, |124| and its relative insignificance, also raise the question whether the Committee could not have simply relied on the travaux préparatoires to cover the points made in the note.
Admittedly it is not easy to capture in one declaratory sentence the essence of the meaning of aggression, and there must be reliance on broad generalizations. Uruguay had proposed:
Internationally, aggression is the use of armed force by a State against another State in a manner inconsistent with the terms of the Charter of the United Nations. |125|
The Uruguayan suggestion, which was not seriously debated, was simpler than the final text, which had to be stretched to include other thoughts which seemed important to delegates whose consent was required in order to reach consensus.
That not all the delegates on the Sixth Committee would be satisfied with the general declaration was clear. The Israel representative, Mr. S. Rosenne, who considered the entire definition to be an unreasoned text which was "unsatisfactory, inadequate, incomplete and deceptive, felt that as a definition of armed aggression nothing more was required than was contained in Article 1. |126| Other states felt that the Special Committee had restricted itself too much by limiting its definition to armed aggression only. It was noted by Peru and Afghanistan that Resolution 2330 (XXIII) had charged the Committee to examine "all aspects" of the question, and the limitation to armed aggression was unjustified since many forms of economic and political coercion had not been adequately covered. |127| Very many states were to speak up and express their concern about the omission of any reference to economic aggression, |128| China referred to annexation, expansion, political interference, subversion and economic plunder as other forms of aggression. |129| Bolivia referred to blackmail by powerful countries in possession of vital natural resources. |130| Racist propaganda and apartheid were mentioned as acts of aggression. |131|
The Chairman of the Special Committee, Mr. Broms, in making his opening report anticipated these objections, and explained that the Committee had not been unmindful of the considerations raised, but had proceeded with the definition of armed aggression as the only practical possibility. |132| He noted that under Article 2 and Article 4 of the definition there was wide latitude on the part of the Security Council to consider acts other than the use of armed force if it chose to do so. Anyone familiar with the difficulties encountered in defining armed aggression would be inclined to agree that dealing with the other forms of coercion would have made consensus in the foreseeable future impossible. Several states expressed the hope that the definition of armed aggression would be only the beginning of a more detailed elucidation of aggressive acts. |133| The next step up the legal codification ladder would, however, have to wait for another day. Article 2 of the draft definition was to reiterate that it was only concerned with the use of armed force.
Article 2 (Evidentiary Value of the First Strike and Other Circumstances)
The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances including the fact that the acts concerned or their consequences are not of sufficient gravity.
Article 2, which dealt with priority of action and aggressive intent, represented an attempt to reconcile two basically inconsistent views. The Soviet position, going back to 1933, was that the state which was the first to commit a specified unlawful act would automatically be identified as the aggressor. That view found a great deal of support as can be seen from the historical record. The six-Power position, put forth in 1964, was that before an act could be condemned as aggressive it would be essential to prove that it had been done in order to achieve one of five specifically prohibited objectives. |134| In the course of the debate over the years it had been conceded by the Western States that only "due regard" had to be given to the question of intent or the animus aggressionis, but they did not feel that the purposes of the action should be given any lesser consideration than the chronological fact of who had struck the first blow. |135| They argued that it was often impossible to determine who had acted first, that a minor first use of armed force might have been provoked or falsified as a pretext for massive retaliation, and that it was unreasonable in the atomic age to expect any nation to wait to be destroyed before taking defensive measures. The Soviets replied that it would be impossible to prove intent, that it would cast an unreasonable burden on the victim, and that objective criteria were essential.
The imaginative representative of Guyana, Joseph Sanders, proposed a compromise text which treated the first use of armed force "in contravention of the Charter" as prima facie evidence of aggression, and also gave the Security Council authority to take "other relevant circumstances" into account. In 1973 the United States was still insisting, despite strong Arab opposition, |136| that the Council would specifically have to consider the purposes of the act. This, too, was finally dropped. The shift in position was made possible by the recognition that "other relevant circumstances" was sufficiently broad, and vague, so that it could be construed to include the purposes and intent of the parties. There was also the new additional requirement that the action had to violate the Charter to be considered aggression. These new elements made the text tolerable even if not completely satisfactory to all.
Regarding the first use of force Syria still felt that it would always be aggression, and if it was also "in contravention of the Charter" Syria could not understand how it could fail to be aggression. |137| Algeria and Burundi expressed similar sentiments but were also prepared to accept the revised wording as a compromise. |138| Both Romania and Egypt noted that the first user of force would justify the victim's taking defensive action without waiting for any other determination. |139|
The requirement that the first use of force also had to be "in contravention of the Charter" seemed to imply that there could be a legitimate first use of force which was not in contravention of the Charter. Several States considered the clause to be an objectionable loophole which might also encourage a first strike as a purported preventive action. |140| Compromise was reached when France declared that she would construe the clause so that it was a matter for the Council to determine, and not the state engaged in the use of force, whether or not the action was in contravention of the Charter. |141| The inclusion in the definition of Article 5, Paragraph 1, eliminating various possible justifications for aggression, encouraged the French to be flexible.
The meaning of prima facie also gave rise to problems and conflicting interpretations. Did it mean that aggression existed until the presumption was rebutted, or did it simply mean that it gave rise to a suspicion that there might be aggression? France took the view that once armed force was used the presumption that the first user was the aggressor would prevail until the Security Council would find to the contrary. |142| Several other states felt the same way. |143| Those trained in the common law felt that the more mechanical approach went too far. The United States delegate, Mr. Rosenstock, remained convinced that prima facie evidence, like an American Grand Jury indictment, was not the same as conviction. A decision that aggression existed was dependent and conditional upon a prior finding to that effect by the Council. |144| The British had the same view. |145| The Soviets were not about to rock the boat and remained silent on the point.
In making reference to "other relevant circumstances" Article 2 sought to avoid a direct confrontation with the issue of whether intent and purposes could be considered. Those who favored the inclusion of the latter continued to insist that they were covered by the general language, while some of those who had been opposed to a consideration of intent still insisted that it was not relevant. |146| The Soviet Union however, now close to its goal, made full circle and now declared that the Council would have to study the intentions carefully in order to identify the true aggressor. |147|
It had earlier been agreed that there should be a de minimus clause, which was designed to prevent minor incidents from being treated as aggression. |148| The objective was achieved by adding the sentence at the end of Article 2 that the Council could conclude that an act was not aggression if it, or its consequences was not of sufficient gravity to justify a finding of aggression. |149|
Article 2 was properly regarded as a key provision of the consensus definition. Obviously there had been a trade to reach an acceptable conclusion. References to "purposes" had been dropped. In exchange "other relevant circumstances" could be considered, and there was a requirement that the act to be offensive, had to be "in contravention of the Charter"1. Who decided whether an act was "in contravention" and what was included among the "other relevant circumstances" to be considered, and exactly what was the significance of considering the first strike to have prima facie evidentiary value, were all subject to different interpretations. The delegates were eager to reach a consensus regarding the phrases in the text,but the debate, published and unpublished, made it clear that they were far from agreed regarding the meaning of the words accepted.
Article 3 (Acts Qualifying as Aggression)
Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
It had been recognized at an early stage that the classical illustration of aggression — a declaration of war, having gone out of style, was no longer a pre-requisite for a determination that aggression had taken place. |150| This point had been particularly welcomed by Israel in the Sixth Committee. |151| The Charter makes no reference to "war", which has been recognized as a relative and ambiguous term. |152|
Italy had noted the year before that listing acts which constitute aggression was inconsistent with provisions giving the Security Council discretion to determine aggression. It had, therefore, been suggested that a clause be inserted linking Article 2 to Article 3, and the clause above was accepted. |153| The previous text, which said that a listed act "shall constitute" an act of aggression was also modified. The Western Powers felt that it was too strong and should read "would qualify as". |154| Algeria, Mexico and Egypt felt that the proposed alteration was too weak. In a Solomon-like compromise the final text read: "shall ... qualify".
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
It had been accepted by the Committee that the traditional benchmark of aggression – invasion or attack – would head the list of clearly aggressive acts. |155| There had been minor differences of wording but these had all been resolved by 1973. "Military occupation" and "annexation" were also added, in language based on the thirteen-Power draft. |156| In 1974 the clause was no longer being discussed.
It would appear that the language used reflects the intensity of the feeling which existed among various members of the Committee, and particularly those whose countries were partly under military occupation. Invasion is invariably an antecedent to "military occupation, however temporary". Invasion and temporary occupation are the unavoidable antecedents to "annexation by the use of force". Since both the invasion and the attack have already been condemned in the opening words of the article as clear acts of aggression, it may be questioned whether the addition of "occupation however temporary" or "annexation" really adds much to an offense which has already been characterized as "the gravest of all crimes against peace and security throughout the world." The U.K. was explicit in stating that it referred only to occupation resulting from such invasions or attacks as themselves constituted aggression. |157|
Military occupation and acquisition of territory resulting from the use of force, although a traditional and continuing practice among belligerent states, are surely prohibited under international law. |158| The same principle was reaffirmed in the Seventh Paragraph of the preamble. The redundant condemnation of occupation and annexation, as if they were new acts of daily aggression, while understandable from an emotional point of view, can only tend to detract from a precise juridical formulation. Complex political, ethnic and military problems do not lend themselves to solutions by special terminology being artificially injected into a definition. The final text is a further indication of the political nature of the consensus definition.
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
The text finally adopted was the one basically accepted in 1972. |159| The only difference was that Syria, Iraq and Romania had reiterated a previous Soviet argument that the use of nuclear, bacteriological and chemical weapons, or weapons of mass destruction, should also be specifically listed, in order to demonstrate the particular abhorrence for such weapons, and to further restrict the permissible instruments of attack. |160| The Western Powers rejected the amendment on the grounds that it was not the weapon which determined the legality of the attack, and the reference to "any weapons" was all inclusive so that a further itemization was redundant. France and Ghana agreed, and the USSR, having obtained the reference to "weapons of mass destruction", in the Fifth Preambular Paragraph, was also prepared to accept the Western view. |161| Romania, which had led the opposition, had to settle for the confirming explanatory note which it insisted had to be included in the Report. |162|
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
The earliest definitions had listed blockade as a classical illustration of an aggressive act. The accepted formulation was originally proposed by the Thirteen Powers, and almost identical language appeared in the Soviet proposal. The Six Powers had made no mention of blockade in their draft, but were quite prepared to include it. No one on the Special Committee felt the need to debate the subject, although the meaning of "blockade" was certainly contentious, |163| and would give rise to serious problems in the Sixth Committee.
There were 30 land-locked countries in the United Nations which were without "ports or coasts", and none of them had been directly represented on the Special Committee to Define Aggression. Many of them noted correctly that cutting off access to the sea might be just as detrimental to a land-locked state as a blockade of the ports of a coastal state. Listing the one and failing to list the other was seen as an unjustified discrimination, violating the sovereign equality of states. |164| Although none of the land-locked states seemed desirous of upsetting the delicately balanced consensus definition, Afghanistan, after some hesitation, finally took the lead on behalf of many other sponsors in presenting a "Working Paper" in which it was suggested that a clause be added to the end of Article 3 (c) stating:
as well as the blockade of the routes of free access to and from the sea of land-locked countries; |165|
It took weeks of behind-the-scenes wrangling before an acceptable compromise could be reached. In announcing the compromise Mr. Broms said it would save the definition from amendments that would have destroyed the consensus. What was finally agreed was that the footnote which had appeared in the report of the Special Committee, |166| would be augmented by an additional observation that the Report of the Sixth Committee contained statements on the definition, and the paragraphs in which those statements would be made would also be designated in the footnote. The statement itself, which was to appear in the Sixth Committee's report, was:
The Sixth Committee agreed that nothing in the definition, and in particular article 3 (c), shall be construed as a justification for a State to block, contrary to international law, the routes of free access of a landlocked country to and from the sea. |167|
It was a savings clause for the land-locked states, which had within it another savings clause, "contrary to international law", to satisfy those who wanted the subject kept open for further clarification.
A very similar problem, and a similar technique for solution was to appear in connection with the next article as well.
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
The Politis definition of 1933 had listed among its acts of aggression an attack on the "vessels" or "aircraft" of another State. The effect would have been the same whether the vessel was military or civilian. |168| The Special Committee, facing the problem in 1972, agreed upon a text which characterized as aggression "An attack by the armed forces of a State on the land, sea, or air forces of another State." |169| During 1973, as a result of various disputes which had arisen regarding fishing rights in coastal waters off Iceland and other countries, the Special Committee added to its text the additional reference to an attack on "marine and air fleets" as an indicator of aggression. |170|
Japan, noting that its marine transport was vital to its existence, argued, in favor of the addition, that an attack against their maritime fleet would be just as devastating and therefore just as much an act of aggression as an invasion or blockade. |171| The Soviet Union, with its own trawlers spread throughout the world, shared the Japanese view, which was supported by the United States. On the other hand Indonesia and Ecuador, supported by Syria, argued that the reference to "marine" should be deleted since it suggested that a state might be accused of aggression, and subjected to retaliatory action in the name of self-defense, if it simply took action against fishing vessels illegally within its territorial waters. |172| They, and many other coastal states, felt that there should be no restraint on their legal right to use force if necessary to preserve their coastal resources from illegal invasion, pollution or exploitation by foreign predators.
The consensus definition had been obtained in the Special Committee on the assurance given by Ghana, that attacks on individual fishing vessels illegally in foreign waters was not intended to be regarded as aggression, and that all that was contemplated was massive attacks on fleets. |173| The reference in Article 2 to the exclusion of minor incidents as possible acts of aggression helped the Special Committee to get over the hurdle, but the objections were only temporarily suppressed and not eliminated.
In the Sixth Committee the doubts again surfaced. A Law of the Sea Conference in Caracas had not settled the question. Now it was argued that if it went without saying that coastal states could enforce their own laws within their maritime zones then it should be confirmed in writing. "Si ca va sans dire, ca va mieux en le disant". Many rose to the defense of the rights of the coastal states. |174| Finally Peru took the lead in submitting a "working Paper" proposing an additional article saying:
Nothing in this definition, and in particular article 3 (d), shall be construed as in any way prejudicing or diminishing the authority of a coastal State to enforce its national legislation in maritime zones within the limits of its national jurisdiction. |175|
An earlier Australian suggestion that a small working group try to reconcile the differences was accepted. |176| Mr. R.Q. Quentin-Baxter of New Zealand was to receive praise for his skill as Chairman of the working group.
Just as in the case of Article 3 (c) the compromise solution which was accepted to save the consensus provided for a signalling footnote to be added to the Special Committee's report and an explanation in the Sixth Committee confirming that
... nothing in the definition, and in particular article 3 (d), shall be construed as in any way prejudicing the authority of a State to exercise its rights within its national jurisdiction, provided such exercise is not inconsistent with the Charter of the United Nations. |177|
The "provided" clause was the safeguard, together with some softening of the language, which made the explanation tolerable to those who were reluctant to spell out the permissible uses of force against commercial fishing vessels. |178|
(e) The use of armed forces of one State, which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
This provision had its origins in the Six Power proposal that the use of armed forces lawfully within another state "in violation of the fundamental conditions of permission for their presence, or maintaining them there beyond the termination of permission" be listed as aggression if the force was used "to achieve a prohibited purpose". |179| France and the Soviet Union expressed misgivings about both the concept and the wording. |180| Uruguay proposed language which was more precise. |181| The present text was accepted in a spirit of compromise in 1973.
We see here a rather extreme application of the concept of territorial sanctity. A fair reading of the article would indicate that any nation retaining its troops in an area where they had been lawfully stationed might be guilty of aggression if they did not evacuate those troops on the schedule set by the host state. Perhaps the consequences of such action might not be of sufficient gravity, so that an exemption from the charge would be permissible under the last clause of Article 2, but under the strict wording of the article a violation would be included among the limited list of aggressive acts, even though the offense might have resulted in no harm done to either person or property. It is doubtful whether the offense, as formulated, (particularly after the reference to "prohibited purposes" has been deleted), is deserving of inclusion among a restricted list of the most serious of all crimes. |182|
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
During 1973 the world was much disturbed by guerrilla attacks being launched from the territory of one State against a neighboring State. The Working Group of the Special Committee proposed to describe as aggression:
The action of a State placing its territory at the disposal of another State when the latter uses this territory for perpetrating an act of aggression against the third State with the acquiesence and agreement of the former. |183|
The 1933 Politis report had listed as aggression the provision of support for armed bands which invaded another territory or refusal to take whatever measures were possible to deprive such bands of assistance. |184| The original Litvinoff draft had contained no such article, but it had been picked up in the 1933 treaty definitions, and now the Soviet delegate made the same argument which had been considered four decades before. He noted that the wording proposed by the Special Committee implied unlawful acts by two parties – the one sending troops and the other making its territory available, yet only the latter was being condemned. |185| The proposed text also gave rise to the difficulty of proving "acquiesence and agreement". The Italian delegate argued that there could be no wrong-doing by the territorial state for acts carried out without its consent |186| and Kenya shared that View. |187|
The United Kingdom and the United States thought the idea in 3 (f) should be preserved and so did Romania and Spain. Madagascar recognized that the essential delict was the complicity and felt that perhaps there should be a separate reference to complicity as an offense. The conclusion finally reached was that the wording would be improved as shown in the final 1974 text.
What the text could not resolve was the actual difficulty which might arise in cases where the local government simply did not have sufficient knowledge or effective control to curb guerrilla activities. |188| Libya wanted liberation movements to be exempt from Art. 3 (f), |189| and that complex problem was to be dealt with in the next paragraph and the Articles which followed.
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
One of the major stumbling blocks to a consensus definition had, for many years, been the question whether acts of indirect aggression should be included in the definition. It had been the unalterable position of the Six Powers that indirect acts of aggression, such as support for armed bands, was the most frequent and insidious form of aggression currently being employed, and that no definition could be realistic or acceptable if it did not incorporate that fact. The Soviets, following their own 1933 aggression treaties, had included a similar provision in their initial draft. |190| The smaller States, however, feared that it might take years to reach agreement on direct aggression, and the inclusion of indirect aggression might make it possible for the more powerful States to seek out some act of support for a subversive group and use that as a justification for launching a massive counter-assault disguised as self-defense. There was great difficulty in reconciling the conflicting views.
Syria argued that actions by armed bands might be mere breaches of the peace and would not justify triggering the entire collective defense mechanism. There seemed to be some willingness to include indirect aggression but only if it was of such magnitude as to amount to an armed attack. |191| By 1973 there was agreement on the important point that indirect aggression should also be listed among the illustrative aggressive acts, but there was strong disagreement about the text.
Some insisted that it was not aggression unless the armed bands carried out "invasion or attack" or that the use of armed force had to be of such gravity as to amount to aggression as defined elsewhere on the list. The United States began making concessions by dropping its condemnation of "organizing" "encouraging" "assistance to" "knowing acquiesence in" or "lending support to" armed bands, |192| and was prepared to settle for the more objective criterion of the actual "sending" of armed bands against another State. |193| In 1973 the United States was, however, also insisting that "open and active participation" in any of the proscribed activities would also have to be condemned as aggression.
Syria, Iraq and Egypt, and the German Democratic Republic, were adamant in opposing the United States formulation, which they felt opened the door to all sorts of abuses since "participation" was an imprecise term and might really involve something which could be no more than a minor breach of the peace. |194| The USSR argued that broad language might serve to inhibit liberation movements and was, therefore, objectionable. |195| India wanted to prohibit "organizing or encouraging acts of civil strife", |196| but France felt that went too far unless there also was "participation in sending". |197| Indonesia wanted "support" included, as well as "sending". |198| Israel was primarily concerned with effective deterrence of terrorism, of which she had been the recent victim. |199| Greece felt the whole subject of indirect aggression deserved a separate article. |200|
When the debate was resumed in 1974 the Arab, African and some Socialist states, seeking to maintain a free hand for support of liberation movements, lined up against restraints, while the Western States sought to obtain as restrictive a formulation as possible. The compromise which evolved required that the previous reference to "invasion or attack" be deleted, and that the phrase "or its open and active participation therein" also be dropped. In its stead was substituted "or its substantial involvement therein", with the explanation offered by its sponsor, Joseph Sanders of Guyana, that what was substantial would have to be decided on the basis of all the circumstances. |201| The Arab states went along with the compromise in exchange for a major concession which was made to their view when it came to Article 7, dealing with the use of force and self-determination.
It is unfortunate that the process of bargaining and compromise under the pressure of time does not always allow for adequate consideration of all the facets of a problem. |202| Both the "Friendly Relations" Declaration and the Declaration on Strengthening of International Security dealt with the question of support for armed bands. By the terms of those instruments States are enjoined from"organizing or encouraging the organization of irregular forces... for incursion into the territory of another state" and from "organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state or acquiescing in organized activities within its territory . . . (which) involve a threat or use of force." The different language used in the definition of aggression can only lead to confusion.
The nature of, the permissible response to various forms of coercion which do not involve the direct use of armed force will continue to present difficulties. Perhaps the Security Council can deal with it under the general catch-all of taking "all of the circumstances" into account.
In listing only seven categories of offences which would qualify for consideration as an act of aggression the Special Committee omitted several areas which had previously been talked about as possible signposts of aggression. The de Brouckère report of 1926 had warned about the failure to observe the principle of proportionality as an indicator of aggression. |203| Since the Soviet Union had been strongly opposed to any reference to proportionality this important concept disappeared from the definition. |204| The 1924 Draft Protocol for the Pacific Settlement of Disputes would have taken as proof of aggression the failure of a state to submit a dispute to the agreed procedures for pacific settlement. |205| Failure to abide by the decisions of the Security Council or the Assembly had also been suggested as worthy of listing among acts of aggression, but all such transgressions went the way of economic and ideological aggression and were not listed as aggressive acts since they lacked the qualifying ingredient – as laid down in Articles 1 and 2 – the use of armed force. An effort was made to diminish the impact of such omissions by the general authorization which followed in Article 4.
Article 4 (Non-Exhaustive Character of the List)
The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.
One point on which all members of the Special Committee had agreed for years was that the determination of the aggressor would rest with the Security Council. When the Charter was being drafted it was conceived that the Council alone was to be the enforcement agency, while the Assembly was to be the forum for discussion and debate. |206| By virtue of the "Uniting for Peace Resolution" some of the power of the Council was slipping away to the Assembly, where the smaller states had a larger role to play. |207| If the Assembly could succeed in laying down guidelines which would bind the Council, the power of the Assembly would be further increased.
The Soviet Union, as well as the other members having veto powers on the Council, obviously would benefit if they could retain complete control in the Council, and it is not too surprising, therefore, that there were several places in the definition where the wide discretion of the Council was directly and indirectly reconfirmed. |208| The British maintained that not only could the General Assembly not make the definition binding on the Council, but even the Council itself could not do so. |209| Only China expressed doubts about the wisdom of having the Council decide on aggression. She argued that the large Powers would never condemn themselves and the decision on aggression should be shared by all States. |210| Ecuador made the very important, and largely ignored point, that a logical addition to Article 4 "would be a provision establishing an international penal tribunal having the powers currently attributed to the Security Council in the matter." |211|
The determination of what constitutes aggression is not likely to remain indefinitely within the completely unfettered discretion of a small political body in which absolute veto powers may be exercised by those who, because of their power, may be the most tempted to become offenders. |212| The Council must be guided by the existing declarations of international law and the agreed standards of international conduct. The definition of aggression, despite its many ambiguities, provides some guide to the permissible limits of the use of armed force. It is "the firm conceptual core" around which the Council's decision must focus. |213|
The consensus definition acknowledged in effect that the causes of international violence were so complex, the coercive techniques so dynamic and diverse, and the competing value systems so disparate, that no rigid rule or list of inculpating acts could possibly itemize the actions which would mark the culpability of nations and individuals. Article 4 provided the necessary flexibility, and at the same time reconfirmed that it was the Security Council, the only agency currently acceptable, which would make the final decision. Further guidelines to help differentiate between lawful and unlawful use of force, as well as an indication of some of the consequences which an act of aggression might entail were to be dealt with in the subsequent articles of the definition.
Article 5 (Considerations Not Justifying Aggression and Legal Consequences of Aggression)
No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
This provision did not appear in any of the original three drafts. The sentence had its origins in the 1933 USSR definition. It was accepted in the Politis Report, was relied on by the United States Prosecutor at the Nuernberg Trials, and had been considered by the International Law Commission in 1951. |214| It was submitted by Romania in 1972, |215| and was accepted in principle in 1973. At that time the only doubt was where to put it. Guinea wanted the sentence to be added to Article 2. |216| Greece and Ecuador wanted it included somewhere. |217| Yugoslavia thought it might best be handled as a separate article. |218| In 1974 Romania became its most insistent champion. |219|
The United Kingdom thought the sentence was a truism which might find a suitable place in the preamble. The United States agreed. The Soviets wanted to be sure that the Council's discretion to consider everything would not be hampered and was, therefore, inclined to exclude it if possible, or at best to push it into the preamble. To satisfy the Soviet hesitation, the sentence was watered down by a tie-in to the "Friendly Relations" Declaration in the explanatory note in the Committee's Report, and particular reference was made to the admonition that no state has the right to intervene "directly or indirectly, for any reason whatever, in the internal or external affairs of any other State." |220| What had been offered as an apparent attempt to exclude motive as a justification for the use of armed force was dipped into the vat of compromise. What came out was a slightly different color. It now appeared as the traditional prohibition against unlawful intervention, and thereby pleased the South American states which were particularly sensitive on that point. |221| Without much public discussion of what was intended, the paragraph was placed under the same umbrella as the next two unrelated paragraphs dealing with certain consequences of aggression.
A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
Much to the surprise of many of the delegates, the sentence dealing with the criminal nature of aggression generated a great deal of contention as the consensus was about to be reached. By 1973 there seemed to have been general agreement that "Aggression constitutes ( ) against international peace, giving rise to responsibility under international law". The main problem was to agree on the descriptive adjective to be inserted in the open bracket. |222| The only alternatives then suggested for inclusion in the open bracket were "a grave violation", "a crime", "criminal violation", or, as proposed by the Six Powers, that the subject be omitted completely. |223| In 1974, however, the United Kingdom drew attention to the fact that a reference merely to "aggression" without restricting it to "aggressive war" was objectionable. The International Military Tribunal had condemned aggressive war, and not simply aggression. The "Friendly Relations" Declaration had stated: "A war of aggression is a crime against the peace for which there is responsibility under international law." The United Kingdom representative was not willing to go any further than international law had already gone. |224| He would accept individual criminal responsibility for aggressive war, but only state responsibility, i.e., compensation, for aggression. |225| The United States and Japan supported the United Kingdom position. Australia's Sir Laurence Mc-Intyre went even further and declared that criminal responsibility should not be construed as implying individual responsibility. |226|
To many the distinction between aggression and aggressive war was seen as an attempt to turn back the clock and reverse not merely the trend of the Nuernberg trials but also the thinking of the International Law Commission and the General Assembly. |227| It was true that the major Nuernberg trial against Goring et al. had dealt only with aggressive war, but some of the subsequent trials, based on Control Council Law No. 10, had held that the invasion of Austria and Czechoslovakia, even though those countries capitulated without resistance, – and therefore there was no war, were nevertheless acts of aggression for which there was personal criminal liability. |228|
The International Law Commission had made no distinction between aggression and aggressive war. In 1951, the Commission, acting pursuant to General Assembly direction, had listed as its first offence Against the Peace and Security of Mankind: "Any act of aggression". Article I of the draft code had prescribed that for such crimes under international law "the responsible individuals shall be punishable". |229| Even a threat of aggression would be treated as a criminal offense against the peace. In 1952 the Assembly had referred to the "crime of aggression", without any reference to "war". |230|
The greatest objection to the British position was its insertion of the ambiguous term "War", which even the Charter had avoided. A distinguished British jurist had maintained that "when Great Britain is one of the combatant parties, it is for the Government to say whether we are at war or not." |231| Combining that reasoning with the new British requirement that there be a war before there could be personal criminal responsibility might lead to the conclusion that any government leader could engage his country in any hostilities but would be immune from criminal prosecution by simply declaring that a state of war did not exist. Although the British and the Americans were correct in pointing out that peace-keeping was more important than punishment, |232| they may have minimized the value of deterence. It was perhaps to be expected that the Japanese, some of whose leaders had suffered the consequences of a broad interpretation of personal responsibility for crimes against peace, |233| would favor a restrictive view of criminal liability. Whether they had any such purpose in mind in supporting the British proposal was not articulated. Questions were also raised about the American position.
Suspicions were voiced that the United States' view was prompted by fears that the North Vietnamese might carry out their threat to put on trial as war criminals some captured American air-men who had participated in the bombing of North Vietnam and Cambodia, countries with which the United States was not officially at war. By requiring the existence of war to be a pre-requisite for personal criminal responsibility the United States, it was surmised, hoped to avoid any possible political or legal embarrassment. |234| There was no evidence to justify such a conclusion.
The only way to break the impasse which arose over the distinction between aggression and aggressive war, was for the Soviets and the non-aligned states to accept the restrictive United Kingdom and United States interpretation, and let fall their prior understanding that aggression was a crime. They recognized that a broader view would have made it even more difficult for the Security Council to reach the conclusion that aggression had occurred. It was generally agreed that further development of international criminal law would be necessary to deal adequately with the issue in the future. |235| In an attempt to salvage the position as much as possible the USSR proposed, and it was accepted, that there be an explanatory note saying: "the words 'international responsibility' are used without prejudice to the scope of this term." |236|
No territorial acquisition or special advantage resulting from aggression are or shall be recognized as lawful.
The attempt to interject into the definition of aggression a reaffirmation, in various forms and places, of the inviolability of territory and a condemnation and negation of military occupation had presented a running battle for years. Syria had proposed sweeping language at Geneva the year before. |237| Egypt sought to outlaw acquisitions arising not merely from aggression but also from the threat or use of force. |238| One Delegate sought to rely on the text of the "Friendly Relations" agreement. |239|
In the Sixth Committee Senegal had sought to go back to League language that "an act of war could not create, modify or extinguish a right." |240| In fact, the principle that the fruits of aggression should not be recognized had long been acknowledged in international legal theory, even if ignored in international practice. |241| A reaffirmation that no special advantage resulting from aggression should be recognized would have been the reiteration of an acknowledged precept. The reference to territorial acquisition was redundant and reflected again the overwhelming concern for territory and national borders. |242|
The draft text which was accepted by the weary and bleary-eyed delegates, eager to compromise and go to bed, contained a grammatical error which became readily apparent when they awoke the next morning. The singular "is" rather than the plural "are" should have been used, but there was no time to discuss any corrections and no one in the Special Committee or even later in the Sixth Committee dared tamper with the delicate balance which had been achieved. |243|
Article 6 (Inviolability of the Charter and the Lawful Use of Force)
Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.
Historically "Self-defense" has been the most frequently used and abused excuse to justify acts of aggression. The Thirteen Powers, fearing over-reaction by the more powerful states, had earlier insisted that, under Article 51 of the Charter, self-defense could only be employed to repel an armed attack. The smaller nations felt that if the risk of war was to be limited the right of States to defend their own cause would have to be narrowly interpreted. The Six Powers insisted that there was an "inherent right of individual or collective self-defense" referred to in Article 51,which could be used against any form of aggression, whether direct or indirect. The Soviet draft said nothing about self-defense. The USSR would have preferred to omit the whole subject from the definition, restrict the use of force to the Security Council, or explain in detail when and how the U.N. might authorize the use of force. |244| Uruguay sought to bridge the United States and Soviet positions. |245|
The heart of the difficulty lay in trying to prescribe what type of response would be permissible under what circumstances of provocation. The Thirteen Power draft had recognized that those acting in self-defense could only use such measures as were reasonably proportionate to the armed attack against it. At one point 20 of the 35 members of the Committee had agreed to stand by that principle. |246| The British and the Americans had, at various stages of the negotiations, hinted that, in exchange for an agreement that self-defense could be employed against indirect aggression, they might agree that only such force could legitimately be used as was required to repel the unlawful action. |247| In view of the argument by the USSR that proportionality would only benefit the aggressor, and the Soviet refusal to see that it was a necessary and workable humanitarian principle, no agreement proved possible.
Presumably the Security Council would consider whether the force used to repel aggression met the tests of being 1) reasonable under the circumstances, 2) temporary, as required by Article 51,until the Council could act, and 3) necessary to repel the aggressive act. If it failed to meet those standards the defending State might itself be branded the aggressor, as had been pointed out many years ago. |248|
In the absence of any ability, after years of debate, to reach a consensus on how to describe the lawful use of force, the Committee reached a pragmatic conclusion. They left the subject the way they found it. Borrowing the text which had been agreed upon in the "Friendly Relations" Declaration they referred to the Charter, and relied on future experience to interpret exactly what that meant.
Article 7 (Self-Determination and the Use of Force)
Nothing in this definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.
This article demonstrates the confrontation between the idea that any means can legitimately be used to obtain legitimate objectives, and the idea that force can only be used in defense against force or under conditions specifically authorized by the international community. To some it appeared as a challenge between former colonial powers, who still wanted to play the game according to the old rules, and those set on liberation, who wanted to throw away the book. It was a reminder of the earlier Western argument that if force was used for legitimate purposes it would not be branded as aggression. That problem had been resolved by deleting any specific reference to exculpating circumstances and giving the Council the wide discretion specified in Articles 2 and 4. A similar approach was not acceptable to the proponents of Article 7.
The Western powers, as can be seen from the original Six Power draft, considered the problem of self-determination to be outside the ambit of a definition of aggression. |249| In the course of the debate there arose an acceptance of the insistence that the definition should contain some assurance that those who exercise a right of self-determination, and those who came to their aid, would not be accused of aggression. There was bitter debate about how that thought could properly be expressed. Some restriction of its radius was secured by limiting it to those "forcibly deprived" of their rights. What that meant was uncertain. |250|
The Thirteen-Powers had proposed that: "None of the preceding paragraphs may be interpreted as limiting the scope of the Charter's provisions concerning the right of peoples to self-determination, sovereignty and territorial integrity." |251| The Syrian representative wished to add: "or as preventing the use of armed force by dependent peoples in order to exercise their inherent right to self-determination." |252| The United States would have settled for a reaffirmation of the "Friendly Relations" provisions which enjoined states from taking "any forcible action" to deprive peoples of "their right to self-determination and freedom and independence," and which authorized others to grant support, and indeed asserted that it was their duty to promote "realization of the principle of equal rights and self-determination." |253| The Soviet Union preferred a formulation which made it clear that self-determination rights applied only to "dependent and colonial peoples". |254|
Drafts were considered which met the Syrian demand for specific authorization to use force against any form of foreign or alien domination, |255| but the Western states felt this went too far. The United States considered it "totally out of place in an instrument intended to further the cause of peace." |256| France and others considered it a threat to the territorial integrity of States. |257|
The self-determination problem was closely related to the Sixth preambular paragraph, which reasserted the duty of states to refrain from opposing self-determination by force, and the eighth preambular paragraph, which reaffirmed the "Friendly Relations" principles, as well as Substantive Article 3 (g), which sought to restrict support for armed bands. All of these elements were finally brought into acceptable balance in the final placement and formulation of the various provisions. But what did they really mean?
Those who are so inclined may find in the formulation of Article 7 and the related texts, sufficient ambiguity to justify an assertion that any force may legitimately be applied to overthrow alien oppressors who deprive "peoples" of an inherent right to self-determination, freedom and independence. |258| What exactly is meant by "peoples", "colonial and racist regimes" or "alien domination" was left deliberately vague. So too the right "to seek and receive support" is equally ambiguous. The extent and the nature of the support, whether by traditional means or methods of "unconventional warfare", was not explained. If one were to ask the delegates who accepted Article 7 what means could lawfully be employed, what aid could be received, and against whom might such aid and means be used, there would be a diversity of opinion. The unmistakeable trend appearing from various recent U.N. instruments was to use language so ambiguous that it remained possible to argue that force could lawfully be used to achieve objectives which, in the view of the party using force, appeared to have won U.N. approval. |259|
The Western states sought to contain the use of violence by referring to the Charter and the "Friendly Relations" Declaration, and the absence of any explicit authorization to use force, as arguments to support their position that unrestrained violence for any purpose has not been endorsed or authorized by this definition. |260|
The formulation of Article 7, tied in with the related provisions elsewhere, was another demonstration that agreement could be reached in wording even where there was really no agreement in principle. The technique employed was one, which had almost become customary, of leaving the text so vague that the opposing parties might each interpret it to their own advantage should the need arise. In the words of one of the delegates: "The definition had reached a sufficient level of abstraction to be acceptable."
Article 8 (Interrelationship of all Provisions)
In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.
This article appeared only at the close of the session in 1974, and represented another compromise. Algeria insisted that the last word should go to Article 7 on self-determination which had previously appeared as Article 5. |261| The United Kingdom insisted that the definition should close as previously agreed on an article reaffirming the inviolability of the Charter. The Solomonic Chairman, Mr. Broms, persuaded them to agree to shift the self-determination article behind the inviolability article and to add the new stipulation in Article 8, which confirmed that the position didn't really mean anything.
The text of Article 8 was borrowed from the "Friendly Relations" Declaration, substituting only the word "provisions" for principles". Those who had their eye on the inferences, implications, and interrelationships tucked away in the dark shadows of the various ambiguous clauses of the definition were pleased with the new article.
Not everyone was pleased with the consensus definition finally presented by the Special Committee. Everyone knew that it had been a very long time being born, and although it wasn't a very pretty baby, no one was really ready to tell the parents to try again. When Mr. Broms presented the resolution by which the Legal Committee was to transmit their work for acceptance by the General Assembly, it was apparent that of the 35 nations on the Special Committee only 22 joined as sponsors of the resolution. The absence of the Arab states and some African states was particularly striking. The resolution itself was brief and weak. It called upon states to refrain from aggression and other uses of force contrary to the Charter and recommended that the Council take account of the definition as guidance, "as appropriate". |262| The text of the Special Committee's consensus definition had remained unaltered although the additional sentence had been added to the explanatory footnote in an effort to placate the land-locked states on Art. 3 (c) and the coastal states on Article 3 (d). When the Chairman of the Sixth Committee, Mr. Sahovic of Yugoslavia, announced after a brief pause that the resolution was adopted without a vote, |263| there were several delegates clamoring to be heard.
China criticized the super-powers for deceiving the public with a definition which would not impede aggression. |264| Dahomey said the definition was far from satisfactory. |265| Paraguay protested the high-handed method in which the proposal of the land-locked states had been disposed of. |266| Tanzania criticized various articles, and El Salvador, Ecuador and Bolivia stated that if the definition had been put to a vote they would have abstained. |267| Israel referred to its previous objections. A highly charged procedural debate erupted when Chile's announcement that she would join as a co-sponsor encountered Soviet and other opposition. |268| When that too was resolved, by simply having the report of the Sixth Committee list all states which wished to become co-sponsors, everyone was relieved that the item of the definition of aggression could finally be concluded in the Sixth Committee and passed onto the General Assembly.
It was a Saturday morning when the General Assembly met in plenary session to consider the report on the definition of agression. |269| The Rapporteur of the Sixth Committee, Mr. Sanders, said that by the adoption of the definition "history will be made", and he expressed the hope that thereby "mankind will have taken another step forward towards peace". Paraguay continued its opposition to Art. 3 (c), and China stated that if the definition had been put to a vote she would have abstained. A few states repeated positions on particular articles as expressed in the Sixth Committee, and France, straddling the Soviet and Chinese iews, said the definition was"nothing but a recommendation and is therefore not binding". It was only the silver-haired Ambassador of Cyprus, Zenon Rossides, who traced the history of the definition and noted its significance in the development of international law. He now called upon the Assembly to go forward during its next session so that a draft code of offences against the peace and security of mankind and an international criminal jurisdiction could become a reality. |270|
Without a vote being taken the draft resolution recommended by the Sixth Committee was adopted by the General Assembly on 14 Dec. 1974 as Resolution 3314 (XXIX). |271| "Aggression" had been defined.
(3) The Significance of the Definition
There are those who will continue to hold that defining aggression is a meaningless and useless exercise. Surely they will be right that no definition by itself can cause all acts of future aggression to cease. It will be said that consensus does not signify universal agreement but merely that the states involved have refrained from voicing their doubts and their objections. The ambiguities, and inconsistencies within the definition, and its susceptibility to conflicting interpretations, can be exposed as evidence of its deficiencies. Its omissions will be cited as further shortcomings. It will be proclaimed that the definition has no binding effect for even by its terms it is merely a guide which the Security Council may, out of wisdom or expedience, choose to disregard. A declaration which is not enforceable will be ridiculed as no legal code at all, and those who worked so hard to bring it about will be characterized as Utopian dreamers who fail to recognize the realities of the world in which they live. All of these points must be treated with respect. They do not, however, in the opinion of this writer, tell the full story.
The fact that the General Assembly of the United Nations has given its approval to a resolution clearly implies that its terms merit universal consideration. Despite its vagaries the general thrust of the definition is clear. The Security Council cannot disregard its strictures, and acts which fall within the scrutiny of its frame now run a greater risk of condemnation than before. What is laid down as a guide is apt to rise up as a binding norm of international behavior. Those who have the destiny of others in their power become more responsible to the people as the definition of aggression enables the public better to understand, judge and influence the action of states taken in the name of self-defense and the maintenance of peace. No national leader can afford to ignore the world's opinion. The possibility that decision-makers may personally be held to culpable account cannot fail to have some impact on their thinking and their conduct.
The definition of aggression mirrors the political maturity of states as they are today. Old nations adhere to their traditional concepts and values while new nations brandish their fledgling sovereignty. Rich and powerful states brace to maintain their position and prominence while the poor and the weak cry out for equality and justice. Those united by an ethnic or spiritual bond demand the unrestrained right to determine their own destiny. Faithful government servants see as their primary duty the protection of the interests of their own homeland. The definition reflects the fears and doubts of a world community still in diverse stages of evolution and growth, in which short-term gain is often viewed as more important than long-term survival.
Two decades ago the United Nations put aside its work on a Draft Code of Offenses Against the Peace and Security of Mankind, and an International Criminal Court, until the question of defining aggression could be resolved. After much effort that missing piece has now been produced. Defining the limits of permissible coercion can only have enduring value if it becomes part of a broader pattern of emerging social justice. A definition which seeks only to preserve the status quo is a very fragile shield, but as a stepping-stone it can be of great value in helping to curb the violent outbursts of racial and religious intolerance, of economic rivalries and clashes of political ideology which today divide mankind. Now nations can resume the slow movement toward the peace and security without which the quality of all human life must remain forever tarnished. In a turbulent society, unless change by non-violent means is made possible, change by violent means will be made inevitable. |272|
Doubts may be expressed about the prospects of any attempt to codify the permissible limits of violent behavior while the states whose conduct it is designed to control are at vastly different levels of social, economic or political evolution. Terrorism, the killing of diplomats and the use of armed force which would ordinarily be characterized as aggression are, in some parts of the world, defended as legitimate means for attaining legitimate goals, while elsewhere they are condemned as the most atrocious of crimes. Independent and sovereign states, no matter what their political persuasion, must be able to recognize that it is in their own enlightened self-interest, and the interest of their people, if violence against the human body and against the human spirit can be diminished. Drafting a code involves a process of deliberation and mutual consultation. It may prove difficult and frustrating, – particularly if the parties do not share the same value systems, but it is an effective method for identifying differences and trying to reconcile them by peaceful means.
Definition, codification, adjudication and enforcement are all essential steps toward a rule of law, the effectiveness of which ultimately depends upon acceptance of its terms by those whom it seeks to restrain. The fear of failure is no excuse for inaction. |273|
Our survey of the past half-century has shown the repeated cycle of the rise and fall of man's hopes. World War I brought close to 15 million dead. There arose a strong popular movement for the creation of a more secure society, but states were still not ready to surrender the traditional prerogatives of power. It was not the League that failed; – the Nations failed the League. World War II saw 35 million dead. When the U.N. Charter was born a new promise was again held forth, but it was chained to the anchor of past practices and the cherished values of a by-gone age. Violence and the preparation for even greater violence drained the resources needed for the fulfillment of human life.
Today there is a growing awareness of man's interdependence. New international obligations, goals and opportunities are increasingly being recognized and slowly implemented. The definition of aggression by world consensus, despite all of its imperfections, is once more a visible re-affirmation of the indominable hope and determination that there must be legal limits to the use of armed force, and that the existing international anarchy must be brought to an end.
In our chronicle we have noted some of the philosophers and statesmen, scholars and teachers, who have seen the vision of a rational world order in which aggression was contained and a new system for the peaceful settlement of disputes was created. Many great men have looked beyond the distant horizon into a more tranquil world of the future. Whether governments and peoples will be wise enough to make of the definition a useful tool with which to build a better world only time and experience will tell. In the last analysis the significance of the definition of aggression depends on us.
Notes Abbreviations Used AJIL — American Journal of International Law
GAOR — General Assembly, Official Records Reports to the Assembly begin with the symbol A/
Res. — General Assembly Resolutions
SR — Summary Record
Those with 3 digits refer to meetings of the Special Committee and should be preceded by the symbol A/AC. 134/
Those with 4 digits refer to meetings of the Sixth Committee and should be preceded by the symbol A/C.6/
UNCIO — The United Nations Conference on International Organization
69. The Definition of Aggression in the United Nations (1968). [Back]
70. Henry A. Kissinger, commenting on visits taking place between President Nixon and Secretary General Brezhnev, explained: "This change of course reflected the realities that in the nuclear age there is no alternative to peace between the great nuclear countries." N.Y. Times, June 15, 1973. When war had erupted again in the Middle East in Oct. 1973, the USA and the USSR had played a major role in obtaining compliance with the U.N. 's call for a cease-fire and bringing the parties to the Conference table. For the first time the Security Council approved a multi-national U.N. Emergency Force and a U.N. Disengagement Force to serve in the area. See GAOR 29th Sess. Supp. No. 1 (A/9601) Rept. of the Sec. Gen. June 1973 — June 1974 at 3-14. [Back]
*. Explanatory notes on articles 3 and 5 are to be found in the report of the Special Committee (A/9619, para. 20) (The Sixth Committee added: "The Report of the Sixth Committee contains statements on the definition in paragraphs 9 and 10 (A/9890).") [Back]
72. A/8019, DOCUMENT 18, at 55, 56. [Back]
74. A/8019, DOCUMENT 18, at 58. [Back]
76. See A/8019, DOCUMENT 18, at 59. [Back]
77. Charter Art. 2 Para. 3. [Back]
78. GAOR, Twenty-Fifth Sess. Supp. 18, (A/8018); Res. 2625 (XXV), 24 Oct. 1970; reproduced in 65 AJIL 243 (1971). [Back]
79. GAOR, Twenty-Fifth Sess. Supp. 28, (A/8028) at 22; Res. 2734 (XXV), 16 Dec. 1970. [Back]
80. A/9019, DOCUMENT 24 at 15. [Back]
82. The word "and", in the last line, was substituted for the word "with". [Back]
83. See GAOR, Twenty-Seventh Sess. Supp. 30 (A/8730) at 5, 6; Res. 2936 (XXVII) (1972). [Back]
84. Doc. A/AC.134/WG.5/R.1, 13 Mar. 1974. [Back]
85. See A/8019, DOCUMENT 18, at 55. [Back]
88. A/8719, DOCUMENT 22, at 17. [Back]
89. See Note 78 supra, Declaration as reproduced in 65 AJIL at 246 (1971). [Back]
91. See A/9019, DOCUMENT 24, at 18. Egypt and Romania joined in insisting upon the last phrase to support the first, and also to strengthen the third sentence in substantive Art. 5 infra. [Back]
92. Doc. A/AC.134/WG 5/R.1; (WG 5/R.2, Madagascar); SR. 1444 at 6 (Senegal). [Back]
93. The observations are based on the author' s personal notes. There are no published minutes or summary records. [Back]
94. Doc. A/AC.134/WG 5/R.4 at 4. [Back]
95. For a survey of the "Friendly Relations" Declaration see Rosenstock, R., The Declaration of Principles of International Law Concerning Friendly Relations, 65 AJIL 713 (1971). [Back]
96. See Article 5 Paragraph 3 of the consensus definition proposed by the Special Committee, A/9619, DOCUMENT 26, at 8. [Back]
97. A/9619, DOCUMENT 26, at 9. [Back]
98. Id. The U.S. was eager to see all aspects of the "Friendly Relations" Declaration reaffirmed by being thus incorporated by reference. [Back]
99. A/8019, DOCUMENT 18, at 5. [Back]
101. A/9019, DOCUMENT 24, at 15. [Back]
102. See Doc. A/AC.134/WG 5/R.1. [Back]
103. See SR. 57 at 2, and SR. 60 at 7. [Back]
104. SR. 1442 at 13 (Yugoslavia); SR. 1442 at 15 (Indonesia). [Back]
105. See Id.; SR. 1444 at 3 (Greece); SR. 1482 at 12 (Indonesia). [Back]
106. A/8019, DOCUMENT 18 at 57. [Back]
107. SR. 1443 at 9-10; SR. 1472 at 3. [Back]
108. SR. 1474 at 8 (Kenya); SR. 1483 at 3 (Paraguay); See also SR. 1482 at 8 (Tunisia). The reference to "in any other manner." was welcomed by Zambia as permitting closure of access to the sea to be considered an act of aggression. SR. 1482 at 20. [Back]
109. A/8019, DOCUMENT 18 at 59. [Back]
110. The inclusion of "however exerted" was favored by Indonesia, SR. 1442 at 16. See also SR. 1443 at 6 (Haiti); SR. 1441 at 19 (Ecuador); SR. 1444 at 6 (Senegal). Romania, which wanted "in any form" substituted for "however exerted", SR. 1441 at 13; Turkey would have preferred retention of "however exerted". A/9619, DOCUMENT 26 at 30. [Back]
111. The inclusion of "however exerted" was opposed by India, SR. 1441 at 5. See also SR. 1443 at 6 (USSR); SR. 1443 at 20 (Hungary);SR. 1442 at 18 (Ghana); SR. 1442 at 8 (Kenya); SR. 1440 at 7 (Czechoslovakia). [Back]
112. See Doc. A/AC.134/WG.5/R.4 at 1. [Back]
113. A/9619, DOCUMENT 26 at 23, also SR. 1480 at 23. This was intended to provide an additional element of flexibility so that even a wrongful use of force, such as a first strike, did not necessarily compel a determination of aggression if there were mitigating circumstances. [Back]
114. A/8019, DOCUMENT 18 at 59. [Back]
115. See A/8419, DOCUMENT 20 at 31. [Back]
118. Op. Cit. supra note 112. [Back]
120. See Vol. I, Document 22. [Back]
121. See Jenks, C.W., A New World of Law (1969); See also various "world Order Models Projects" such as those advocated by Prof. Mendlovitz of Rutgers, and Prof. Sohn of Harvard. [Back]
122. The Charter "purposes" are listed in 4 paragraphs of Article 1. The broader reference to the entire Charter encompasses such additional elements as the procedures for the pacific settlement of disputes as laid down in Chapter VI. [Back]
123. See Franck, T.M. "Who Killed Art. 2(4)?" 64 AJIL 809 (1970); Giraud E., "L'Interdiction du Recours à la Force", 67 Rev. Gen. Droit Int'l Pub. 501 (1963); contra, Henkin L., "The Reports of the Death of Art. 2(4) are Greatly Exaggerated" 65 AJIL 544 (1971). [Back]
124. See SR. 1444 at 3. Greece also objected to the imprecision of the phrase "as set out in this definition" SR. 1482 at 18. [Back]
125. A/9019, DOCUMENT 24 at 26. This was a reminder of the very general Harvard Law School faculty definition: "Aggression is a resort to armed force by a state when such resort has been duly determined, by a means which the state is bound to accept, to constitute a violation of an obligation". See Harvard Research in Int'l Law, Draft Convention on Rights and Duties of States in Case of Aggression, 33 AJIL Supp. 821, at 847 (1939). [Back]
126. SR. 1480 at 18, 20. [Back]
127. SR. 1473 at 3 (Peru); SR. 1479 at 18 (Afghanistan). See also SR. 1503 at 8 (Tanzania). [Back]
128. SR. 1471 at 4 (Kenya); (Kenya would have made it clearer that the Committee was limiting its scope by beginning Art. 1 with the words: "Armed aggression is. . ." SR. 1474 at 8); SR.1474 at 6 (Chile); SR. 1477 at 3 (Pakistan); SR. 1477 at 12 (Argentina); SR. 1480 at 12 (Ruwanda); SR. 1482, (Burundi, Uruguay, Dahomey, Zambia); SR. 1483, (El Salvador, Cameroon, Sierra Leone, Nepal); SR. 1478 at 16 (India). [Back]
129. SR. 1475 at 6. Congo referred to the violation of the sovereignty of states over their own natural resources as a form of aggression. SR. 1478 at 11-12. Egypt shared that view regarding territory under occupation. SR. 1483 at 10. [Back]
130. SR. 1473 at 13. Bolivia also referred to political assasination, SR. 1473 at 14. Bolivia had advanced the idea of economic aggression as early as 1953, See A/2638, DOCUMENT 6 supra at 15. For an analysis of the "oil weapon" as a form of economic aggression see Paust, J.J., and Blaustein, A.P., "The Arab Oil Weapon — A Threat to International Peace" 68 AJIL 410 (1974). [Back]
131. SR. 1474 at 12 (Madagascar); SR. 1477 at 5 (Libya); Apartheid at SR. 1476 at 7 (German Dem. Rep.); "Colonialism and racism" at SR. 1503 at 9 (Tanzania). [Back]
132. SR. 1471 at 4. The 1953 Soviet draft had included economic and ideological aggression, but no agreement on those provisions could be reached. See A/2638, DOCUMENT 6 supra at 13. The Swedish delegate expressed the fear that the inclusion of such illegal acts as ideological or economic aggression might tend to provoke extreme interpretations of the right of self-defense. SR. 1472 at 5. For illustrations of actions which might be characterized as ideological and economic aggression, and reference to the practice in South America, see Thomas, A.V.W. and Thomas, A.J.Jr., The Concept of Aggression in International Law (1972) at 83-92. That "aggression" is wider than offensive war has been noted by de Vischer in "Theory and Reality in Public International Law" (1968) at 303-306. [Back]
133. SR. 1479 at 5 (Yugoslavia); SR. 1479 at 13 (Algeria). [Back]
134. A/8019, DOCUMENT 18 at 59. [Back]
135. A/8719, DOCUMENT 22 at 18. The USSR was prepared to consider a Czech proposal that the first use of force gave rise to a presumption of aggression. See id. at 16, 21, 22. [Back]
136. See SR. 107 at 5, SR. 108 at 4. [Back]
137. See A/9619, DOCUMENT 26 at 19; SR. 1459 at 9. [Back]
138. SR. 1479 at 12 (Algeria); SR. 1482 at 4 (Burundi). [Back]
139. SR. 1475 at 3 (Romania); SR. 1483 at 11 (Egypt). Brownlie, I., International Law and the Use of Force by States (1963) notes that intent is only relevant in determining the criminal responsibility of individuals for crimes against peace, at 377. [Back]
140. See A/9619, DOCUMENT 26 at21 (France); at 15 (Madagascar);at 17 (Romania); SR. 1479 at 11 (Algeria); SR. 1480 at 4 (Mali); SR. 1482 at 8 (Tunisia). Bulgaria noted that the Charter authorized the first use of force in certain circumstances. SR. 1472 at 16. Yugoslavia rejected any interpretation that states or regional organizations could use force without U.N. authorization. A/9619 at 26, SR. 1479 at 4. [Back]
141. A/9619, DOCUMENT 26 at 21, SR. 1474 at 10. Concern about abuse of the veto power was expressedby Cameroon. SR. 1483 at 5. [Back]
142. SR. 1441 at 15, A/9619 at 21. The implication was strengthened by using the word "although" in Art. 2 to replace the earlier proposed words, "provided however". [Back]
143. A/9619 at 17 (Romania); at 20 (Cyprus); also SR. 1479 at 6; SR. 1482 at 17 (Greece); A/9619 at 38 (Mexico);SR. 1482 at 8 (Tunisia);SR. 1483 at 10 (Egypt); SR. 1472 at 5 (Sudan); SR. 1474 at 8 (Kenya); Kenya also noted that if action by the Council were stymied by a veto the existence of a conclusion that aggression existed would justifythe defensive action by the one responding to the first attack. Prof. R.R. Baxter has correctly observed that Art. 39 of the Charter does not compel the Council to determine the aggressor and that the Council is often guided by political considerations. See The Law of Armed Conflicts (1970) at 95. New Zealand expressed similar concern SR. 1475 at 10. [Back]
144. A/9619 at 23. The Dutch shared the same view. SR. 1473 at 4; Also Paraguay; SR. 1483 at 3. [Back]
145. A/9619 at 31. Iran had a similar view. SR. 1480 at 5. [Back]
146. See A/9619 at 26, SR. 1479 at 4 (Yugoslavia); SR. 1479 at 21 (Cyprus); SR. 1475 at 4 (Romania);SR. 1479 at 12 (Algeria); SR. 1479 at 15 (Cuba). [Back]
147. SR. 1472 at 3; A/9619 at 36. [Back]
148. A/9019, DOCUMENT 24 at 17. [Back]
149. Algeria complained that the phrase "sufficient gravity" was too vague. SR. 1479 at 12. [Back]
150. See Ballis, W. The Legal Position of War: Changes in Its Practice and Theory from Plato to Vattel (1937). [Back]
151. SR. 1443 at 16. By 1974 Israel criticised the whole article as unnecessary and unsatisfactory, and particularly weak with reference to terrorism. SR. 1480 at 18. [Back]
152. See Grob, F. The Relativity of War and Peace (1949); Stone, J., Legal Controls of International Conflict (1954). [Back]
153. A/9019, DOCUMENT 24 at 24. The linkage with Article 2 was considered useless by Greece. SR. 1482 at 16. [Back]
154. The Netherlands welcomed wording which served to reinforce the discretion of the Security Council. SR. 1473 at 2. Greece wished to restrict that discretion and proposed "shall constitute" rather than "shall qualify". SR. 1482 at 16. [Back]
155. A/8419, DOCUMENT 20 at 42. [Back]
156. A/8719, DOCUMENT 22 at 14. [Back]
157. A/9619, DOCUMENT 26 at 32. [Back]
158. See the citations in connection with Seventh Preambular Paragraph, supra. [Back]
159. A/8719, DOCUMENT 22 at 14. [Back]
160. A/9019, DOCUMENT 24 at 14. [Back]
162. A/9619, DOCUMENT 26 at 9. [Back]
163. Recent instances of contention regarding the legality of acts similar to blockade include the U.S. mining of Haiphong Harbor, the U.S. "quarantine" of Cuba during the "Soviet Missile Crisis", and the closing of various access waterways to the State of Israel. [Back]
164. See SR. 1445 at 7 (Afghanistan); SR. 1477 at 14 (Bolivia); SR. 1478 at 5 (Iraq); SR. 1478 at 16 (India); SR. 1479 at 18 (Afghanistan); SR. 1480 at 11 (Upper Volta); SR. 1480at 12 (Ruwanda); SR. 1480 at 4 (Mali); SR. 1482 at 4 (Burundi); SR. 1482 at 19-20 (Zambia); SR. 1483 at 4 (Paraguay); SR. 1483 at 7 (Nepal). Israel had earlier expressed the view that Art. 3 (c) should also embrace economic warfare and boycott. SR. 1443 at 16. In 1948 the Western occupation powers had condemned the blockade by the Soviet Union and the East German republic of the land access to occupied west Berlin. [Back]
165. Doc. A/C.6/L.990, 25 Oct. 1974. See SR. 1488 at 8; Supported by Paraguay, SR. 1488 at 9, Mali, SR. 1488 at 10, Botswana, SR. 1488 at 10, and Nepal, SR. 1488 at 11. [Back]
166. A/9619, Para. 22, DOCUMENT 26 at 11. [Back]
167. SR. 1502 at 4. See A/9890, DOCUMENT 27 at 2. Paraguay protested sharply against the procedure. SR. 1503 at 5 ; Gen. Ass. Plenary Meeting 2319 at 31. India, saying she had not been consulted on Art. 3 (c) insisted that other international instruments would be decisive. SR. 1504 at 3. Pakistan noted that granting rights to land-locked countries might encroach on the sovereignty of transit states, and the subject had best be left to bilateral or multi-lateral agreements as heretofor. SR. 1504 at 3. [Back]
168. See League of Nations Doc. D./C.G.108, Vol. 1 supra, DOCUMENT 11 at 8. The Litvinoff definition seemed to be limited to military vessels only since it referred to "the naval or air forces of another state" Vol. I, DOCUMENT 9 at 238. [Back]
169. A/8719, DOCUMENT 22 at 14. [Back]
170. A/9019, DOCUMENT 24 at 16. Although the English text, by using the word "marine" might have been construed as referring only to military units, the Spanish and French texts made it clear that it also applied to civilian vessels. In Spanish it was "flota mercante" and in French it was even clearer — "la marine et 1'aviation civiles''. [Back]
171. SR. 1443 at 7, 8; A/9619, DOCUMENT 26 at 16. [Back]
172. SR. 106 at 8, 12 (Fr.); SR. 108 at 5 (Syria); SR. 1442 at 16 (Indonesia). [Back]
174. See A/9619, DOCUMENT 26 at 15 (Ecuador); at 19 (Indonesia);SR. 1473 at 8 (Canada); SR. 1474 at 7 (Chile); at 12 (Madagascar);at 16 (Brazil); at 18-19 (Colombia); SR. 1475 at 7 (China); at 9 (Syrian Arab Rep.); at 11 (New Zealand);SR. 1477 at 2 (Pakistan); at 5-6 (Libya); at 12 (Argentina); SR. 1478 at 3 (Bangladesh); at 5 (Iraq); at 18 (Sri Lanka); SR. 1479 at 9 (Guatemala); at 10 (Dem. Yemen); at 15 (Cuba); SR. 1480 at 6 (Iran); at 7 (Senegal); at 21 (Norway);SR. 1481 at 19 (Ivory Coast); SR. 1482 at 2 (Panama); at 6 (Uruguay);SR. 1481 at 19 (Ivory Coast); SR. 1482 at 2 (Panama); at 6 (Uruguay and Phillipines); at 10 (Costa Rica); at 12 (Indonesia); at 14 (Dahomey); SR. 1483 at 2 (El Salvador); at 6 (Cameroon); at 7 (Sierra Leone); at 8 (Guinea); at 11 (Egypt); at 13 (Peru). Other states which spoke in favor of the text as proposed by the Special Committee included: SR. 1476 at 5 (Belgium); SR. 1477 at 8, 9 (U.K.); SR. 1480 at 23 (USA); SR. 1482 at 13 (Yemen); SR. 1483 at 4 (Paraguay) which argued that Art. 3 (d) related only to an "unprovoked attack , hence the concern expressed by the coastal states was unjustified. Ghana cautioned against any attempt to prejudice the issues before the Law of the Sea Conference. SR. 1480 at 9. [Back]
175. Doc. A/C.6/L.988, 22 Oct. 1974. Peru was careful to note that it was not submitted as an amendment but as an attempt to find appropriate language for insertion. SR. 1483 at 14. Kenya had suggested that any formal statement should also incorporate the right of hot pursuit. SR. 1474 at 9. [Back]
177. SR. 1502 at 4. Peru insisted that the inclusion in the report gave it the same effect as if it had been in the text of the definition. SR. 1503 at 5, Gen. Ass. Plenary Meeting 2319 at 32. Also Mali, at 47,and Nepal, at 58-60, and Afghanistan, at 61. [Back]
178. Paraguay insisted that references in footnotes had the same legal value as inclusion in the text of the definition. SR. 1503 at Ecuador insisted on its previous interpretation of its rights, See SR. 1504 at 2. Japan considered the explanation of 3 (d) to be superfluous. Gen. Ass. Plenary Meeting 2319 at 36. Also the US, at 37;UK, at 38-40; and USSR, at 57. [Back]
179. A/8019, DOCUMENT 18 at 59, 60. [Back]
180. SR. 108 at 8; SR. 1443 at 10; A/8719, DOCUMENT 22 at 20. [Back]
181. A/9019, DOCUMENT 24 at 26. In 1974 a comma was added, after the word "state". [Back]
182. The USSR representative considered that Par. (e) was fully covered by paragraph (a). SR. 1443 at 10. The 1933 Soviet definition was very similar to the present Par. (e) in that it listed infringement of permission, particularly regarding duration or extension of the area as an act of aggression. Vol. I DOCUMENT 9 at 238. [Back]
183. A/9019, DOCUMENT 24 at 17. This was based on a proposal by Romania. Doc. A/AC.134/WG.4/R.6. [Back]
184. Vol. I DOCUMENT 11 at 8, 16. Compare Vol. I DOCUMENT 14. [Back]
185. SR. 1443 at 10; A/9019, DOCUMENT 24 at 19. [Back]
188. Professor Bowett has correctly noted that retaliation against the government of the territory may actually aid the guerrillas, who maybe receiving aid from third states or even private individuals outside the country. "Reprisals Involving Recourse to Armed Force", 66 AJIL 1 (1972). See also Falk, R. "The Beirut Raid and the International Law of Retaliation" 63AJIL 415 (1969); contra, Blum, Y.Z.,"The Beirut Raid and the International Double Standard" 64 AJIL 73 (1970). [Back]
190. A/8019, DOCUMENT 18 at 56. [Back]
191. A/8719, DOCUMENT 22 at 15. This suggestion was originally made by Ambassador Rossides of Cyprus in 1971. SR. 81 at 3. [Back]
192. A/9019, DOCUMENT 24 at 23. [Back]
193. To France this meant that there could be no aggression until there was the crossing of a frontier. SR. 1474 at 10. [Back]
194. SR. 108 at 5 (Syria); SR. 108 at 9 (Iraq); SR. 107 at 5 (Egypt);SR. 1441 at 6 (GDR). [Back]
201. Indonesia considered the word "substantial" to be superfluous and ambiguous, since if the action were not substantial it would not be qualified as aggression. SR. 1482 at 12-13. [Back]
202. For an analysis of some of the problems relating to intervention, civil strife, and minor coercion, see Falk, R.A., Legal Order in a Violent World (1968) [Back]
203. Docs. of the Prep. Comm. for the Disarm. Conf., League of Nations, Series III at 101. [Back]
204. The final Netherlands statement expressed the hope that proportionality would continue to be considered, together with the question of shared culpability. See SR. 1473 at 3, Text of Statement of Mr. George Wehry at 5. [Back]
205. See Vol. I, DOCUMENT 3 (d), and Vol. I, DOCUMENT 6 at 25. In his closing address to the Special Committee the Japanese representative, Mr. Iguchi regretted the omission of the failure to rely on the pacific settlement of disputes and the massing of combat troops of a border as indications of aggression. A/9619, DOCUMENT 26 at 16. Guatemala referred to Res. 378 (V) on Duties of States in the Event of the Outbreak of Hostilities, according to which refusal to cease fire and withdraw would determine the aggressor. SR. 1479 at 8. See also, Wright, Q. "The Concept of Aggression in International Law" 29 AJIL 373 (1935) at 395. [Back]
206. See Goodrich and Hambro, Charter of the United Nations: Commentary and Documents (1949); Report to the President on the Results of the San Francisco Conference, Dept. of State Publ. 2349. [Back]
207. See Esfandiary M., "The Role of The General Assembly in Dealing with Threats to the Peace, Breaches of the Peace, and Acts of Aggression." (Unpublished Dissertation, Columbia Univ. 1970).See also Ed. Comment "The 'Uniting for Peace' Resolution of the U.N.", 45 AJIL 130 (1951). [Back]
208. See Preamble Paragraphs 2, 4, and 10, and substantive Articles 2, 3, 4, and 6. [Back]
209. SR. 1477 at 6, Gen. Ass. Plenary Meeting 2319 at 41. See contra. Gen. Ass. Plenary Meeting 2319 at 57 (USSR) and 42 (GDR). [Back]
210. SR. 1442 at 23, SR. 1475 at 8. [Back]
212. Ivory Coast drew attention to the Charter Art. 27 Para. 3, which requires Council members to abstain from voting when they are parties to the dispute. SR. 1481 at 19. Dahomey raised the question whether the prerogatives of the powerful states on the Security Council should be confirmed when Charter revision was being considered. SR. 1482 at 14. New Zealand's Mr. Quentin-Baxter noted that the Council might reach a valid or invalid decision for non-legal reasons, but the facts did not depend upon a determination by the Council. See SR. 1475 at 10. [Back]
213. See Derpa, R., Das Gewaltverbot der Satzung der Vereinten Nationen und die Anwendung nichtmilitärischer Gewalt (1970) at 84. [Back]
214. See Vol. I, DOCUMENT 11 at 16 (Politis Report); Vol. I, DOCUMENT 19 at 166 (Nuernberg); Vol. II, DOCUMENT 3 at 9 (ILC). [Back]
215. A/8719, DOCUMENT 22 at 23. [Back]
217. SR. 1444 at 4; SR. 1441 at 20. [Back]
219. See Doc. A/AC.134/WG.5/R.4. [Back]
220. A/9619, DOCUMENT 26 at 9. [Back]
221. At San Francisco Bolivia had proposed that intervention be listed as an act of aggression. Vol. I, DOCUMENT 17 (c) at 579; Prohibitions against intervention appeared in the Charter of the Organization of American States signed at Bogota on30 April 1948. The definition of aggression did not seek to define the limits of permissible intervention. [Back]
222. See A/9019, DOCUMENT 24 at 17. [Back]
224. A/9619, DOCUMENT 26 at 32. [Back]
225. See Freeman, A.V. Responsibility of States for Unlawful Acts of Their Armed Forces (1957), Ferencz, B.B. "Compensating Victims of the Crimes of War", 12 Virginia Jour. of Int'l Law 343 (1972). The criminal liability of states is considered in Triffterer, 0., "Jurisdiction over States for Crimes of State", Vol. II Bassiouni and Nanda, Eds. A Treatise on International Criminal Law (1973) at 86. [Back]
226. A/9619, DOCUMENT 26 at 33. [Back]
227. Yugoslavia argued that the present wording might give rise to the absurd interpretation that aggression was not a crime against peace and that a war of aggression might not give rise to international responsibility. A/9619, DOCUMENT 26 at 26, SR. 1479 at 4. Other states saw no valid basis for the distinction. A/9619 at 37 (USSR); at 39 (Mexico); SR. 1472 at 15 (Spain); SR. 1477 at 5 (Ukraine); SR. 1474 at 5 (Mongolia); SR. 1474 at 10 (Kenya); SR. 1478 at 17 (Sri Lanka);SR. 1479 at 7 (Guatemala); SR. 1479 at 13 (Algeria); SR. 1480 at 13 (Czech.); SR. 1481 at 19 (Ivory Coast); SR. 1482 at 9 (Tunisia); SR. 1482 at 18 (Greece); SR. 1483 at4 (Paraguay); SR. 1483 at 5 (Cameroon). [Back]
228. Vol. I, DOCUMENT 22 supra. [Back]
229. A/1858, DOCUMENT 3 at 11. [Back]
230. Res. 599 (VI), DOCUMENT 4 at 17. This was referred to by Sri Lanka. SR. 1478 at 17. [Back]
231. McNair, A.D., Legal Effects of War (1944) at 1. Mr. Verosta of Austria suggested that the magnitude of the aggressive acts and/or the damage caused should determine whether or not there was a "war". SR. 1472 at 13. See Briggs, H.W. The Law of Nations (1942)718-725. [Back]
232. See SR. 1477 at 7-8 (U.K.) SR. 1480 at 24 (USA). [Back]
233. See Minear, R.H., Victor's Justice — The Tokyo War Crimes Trials (1971). [Back]
234. See Baxter, R.R., "The Law of War", International Law Association 1873-1973, — The Present State of International Law 107 at 114. (1973). [Back]
235. Mr. Broms, Chairman of the Special Committee, pointed out in the Sixth Committee that the paragraph should not be interpreted to imply that aggression without war would not in the future lead to any criminal responsibility. The question had not been adequately debated, and its precise meaning would have to be clarified as the U.N. resumed its work on a draft code of offences against the peace and security of mankind. SR. 1471 at 4-Mr. Robinson of Jamaica noted that legal responsibility could only be determined after tribunals had been set up to deal with the matter. SR. 1480 at 2. [Back]
236. A/9619, DOCUMENT 26 at 9. [Back]
237. A/9019, DOCUMENT 24 at 20. [Back]
238. Id. at 23; This was supported by Syria. A/9619, DOCUMENT 26 at 20. See also SR. 1479 at 10 (Dem. Yemen). [Back]
239. A/9019, DOCUMENT 24 at 20. [Back]
241. See Waldock, C.H., The Regulation of the Use of Force, 81 Receuil des Cours, 455, 481(1952). Paraguay preferred "the use of armed force", instead of "aggression", to avoid an implication that territorial acquisition not resulting from aggression was lawful. SR. 1483 at 4. [Back]
242. Pakistan felt that the acquisition of territory by the use of force in any form, not merely by aggression, should also be covered by the article. SR. 1477 at 2. [Back]
243. The Spanish text used the singular "es", and the French text used the plural "sont". In the official Annexes "are" was corrected to "is". [Back]
244. For an outline of the debate on self-defense see Ferencz, B.B.,"Defining Aggression: Where It Stands and Where It's Going" 66 AJIL 491 at 500-502 (1972). Cuba, in the final debate in the Sixth Committee, noted that only the Security Council, and not regional organizations, could authorize the use of force. SR. 1479 at 16. [Back]
245. See A/9019, DOCUMENT 24 at 28. [Back]
246. A/8719, DOCUMENT 22 at 23. [Back]
247. See SR. 63 at 5 (Mr. Schwebel for USA); SR. 74 at 8 (Mr. Steel for U.K.). See also SR. 72 at 7 (Mr. Mutuale of Congo); SR. 74 at 4 (Mr. Ofstad of Norway); Bowett. D.W. Self-Defense in International Law, at 269 (1958). [Back]
248. An analysis of self-defense, necessity and proportionality is contained in Mc Dougal and Feliciano, Law and Minimum World Public Order, at 217-260 (1967). [Back]
249. M. Bessou of France noted that the Article was alien to the definition since it dealt with the right of peoples whereas the definition was concerned with sovereign states. A/9619, DOCUMENT 26 at 22. [Back]
250. Yugoslavia felt that the reference to forcible deprivation was inappropriate since people could effectively be deprived of their rights by non-forcible means. SR. 1479 at 4-5. The British saw the word "forcibly" as a key term since those not "forcibly deprived" would not be justified in resisting. A/9619, DOCUMENT 26 at 32. [Back]
251. A/8019, DOCUMENT 18 at 58. At the last debate in the Sixth Committee Jamaica thought the word "shall" instead of "could" in the first line would be an improvement. SR. 1480 at 3. [Back]
252. A/8719, DOCUMENT 22 at 19. [Back]
253. Mr. Rosenstock, who represented the USA on both the "Friendly Relations" Committee and the Aggression Committee noted that the question whether force might be used was left sufficiently vague to permit acceptance by both those who believed states had a duty to send arms to support self-determination and those who felt that only moral and political support was permissible. "The Declaration on Principles of International Law Concerning Friendly Relations — a Survey, 65 AJIL 713 at 732 (1971). See also "Principles of International Law Concerning Friendly Relations and Cooperation: Essays." M. Sahovi, Ed. (1973); Reviewed by Mr. Rosenstock in 68 AJIL 750 (1974). [Back]
254. A/8719, DOCUMENT 22 at 19. [Back]
255. A/9019, DOCUMENT 24 at 17. [Back]
257. SR. 108 at 8 (France). Both Spain and Italy expressed their concern about the need to avoid territorial disruption, and Spain wanted "Territorial integrity" added as one of the rights listed in Article 7, but dropped it in exchange for the reference to territorial integrity tacked on to preambular paragraph six. See SR. 1472 at 11 (Italy), SR. 1472 at 15 (Spain). See also SR. 1477 at 3 (Pakistan). [Back]
258. Those favoring a broad interpretation and the right to use "any means at their disposal" included: SR. 113 at 11 (Yugoslavia); SR. 1472 at 18 (Jordan — but only after peaceful means had failed); SR. 1475 at 6 (China); SR. 1476 at 7 (GDR); SR. 1478 at 12 (Congo); SR. 1479 at 10 (Dem. Yemen); SR. 1479 at 13 (Algeria); SR. 1479 at 4 (Yugo.); SR. 1480 at9 (Ghana);SR. 1481 at 19 (Ivory Coast); SR. 1482 at 9 (Tunisia); SR. 1482 at 4 (Burundi); SR. 1483 at 6 (Cameroon);SR. 1483 at 11 (Egypt); Also A/9619, DOCUMENT 26 at 15 (Madagascar); at 20 (Syria); at 40 (Egypt). Attention was also drawn to Res. 3070 (XXVIII) in which the Assembly reaffirmed "the legitimacy of the peoples struggle for liberation from colonial and foreign domination and alien subjugation by all means available including "armed struggle", and Res. 3103 (XXVIII) giving such persons legal status as combattants. Kenya, considering itself bound by the OAU Charter, would have specifically included racist oppression and apartheid against which any means might lawfully be used. SR. 1442 at 9, SR. 1474 at 9. Also SR. 1480 at 8 (Uganda). [Back]
259. See Res. 3166 (XXVIII), 14 Dec. 1973, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. Preambular Paragraph 4 recognizes that the convention does not prejudice the exercise of the right of self-determination and independence in accordance with the Charter and the "Friendly Relations" Declaration by "peoples struggling against colonialism, alien domination, foreign occupation, racial discrimination and apartheid." The attempt to formulate measures to prevent international terrorism encountered the same problem. See GAOR, 28th Sess. Annexes, Agenda Item 94, A/9410 (Dec. 1973). [Back]
260. Those states which spoke out against an authorization to use force included: The USA, whose Mr. Rosenstock noted that, when read in conjunction with Article 6, Article 7 could not legitimize acts of force which would otherwise be illegal. SR. 1480 at 24, also A/96-19, DOCUMENT 26 at 24. The Netherlands cautioned that the right to receive support did not mean "armed support". SR. 1473 at 5. See also SR. 1476 at 6 (Belgium); SR. 1477 at 3 (Pakistan); SR. 1478 at 8 (FRG and Portugal); 1473 at 9 and A/9619 at 35 (Canada). See Emerson, R., "Self-Determination" 6 5 AJIL 459 (1971); Nanda, V.P., "Self-Determination in International Law" 66 AJIL 321 (1972); Stevenson, J.R., "International Law and the Export of Terrorism" Record of the Ass. of the Bar of the City of New York 716 (1972). On the relativity of political crimes see Shafer, S. The Political Criminal (1974). [Back]
261. A/9019, DOCUMENT 24 at 17. [Back]
262. Doc. A.C.6/L.993 submitted on 22 Nov. 1974, SR. 1502 at 5. Mr. H. Hassouna of Egypt objected to the weakness and would have preferred a Declaration rather than a Resolution, in order to give the definition greater strength. SR. 1504 at 8. [Back]
263. SR. 1503 at 3, 26 Nov. 1974. [Back]
267. See SR. 1503 at 8-9 (Tanzania), SR. 1503 at 4 (El Salvador), SR. 1504 at 2 (Ecuador), SR. 1504 at 6 (Bolivia). [Back]
268. See SR. 1503 at 6-8, SR. 1505 at 15-18. [Back]
269. A/9890, DOCUMENT 27, 6 Dec. 1974. [Back]
270. See Gen. Ass. Plenary Meeting 2319 at 26, 31. 42, 51. [Back]
272. For a few of the writings noting the need for change see Clark, G., and Sohn, L.B. World Peace Through World Law, Haas, E., Beyond the Nation State (1964), Yost, C. The Insecurity of Nations (1968), Jessup, P., The Price of International Justice (1971), Mc-Whinney, E., International Law and World Revolution (1967), Green,A., Political Integration by Jurisprudence (1969), Roling, B.V.A.,"International Law and the Maintenance of Peace" IV Netherlands Yearbook of Int'l Law (1973), Bowett, D. W. The Law of International Institutions (1970), and many studies by the Center for the Study of Democratic Institutions, Santa Barbara, California. [Back]
273. For a survey of present thinking on the problem of an international criminal court see Stone, J., and Woetzel, R.K., Eds. Toward a Feasible International Court (1970), reviewed by Ferencz, B. 66 AJIL 213 (1972). Prof. Woetzel is President of the Foundation for the Establishment of an International Criminal Court, which has, with the support of many scholars, been drafting a code and statutes for such a court. Comments by Gross, L., 67 AJIL 508 (1973); 68 AJIL 306, 717 (1974). See also "The Court of Man", Center for the Study of Democratic Institutions (1969), N.Y. Times Apr. 24, 1973,in which Gottlieb, G. H., urges the establishment of an extra-national court of experts to cope with conflict situations. [Back]
Editorial Note: This document corresponds to Part IV of "Defining International Aggression - The Search for World Peace", Vol. 2, by Benjamin B. Ferencz.
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