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Annexes, agenda item 54, documents A/2162 and Add. 1. Of. also Report of the Special Committee on the Question of Defining Aggression (A/2638), p. 12.
30. Cf. Doc. A/2211, p. 40.
31. In the Special Committee on the Question of Defining Aggression a general definition was criticized by some members. The representative of Poland maintained “that such a definition would serve no purpose as it would not refer to the elements constituting the crime. Its vagueness would open the way for dangerous polemics on the nature of a given act; the aggressor could challenge the description given of his act and take advantage of the necessarily lengthy discussions arising out of a definition which was lacking in clarity and precision to continue his aggressive activity. Moreover, that type of definition could not help effectively to combat the many types of aggression.” The representative of the USSR stated "that a so-called general definition of aggression was inadequate, as could be seen from the specific proposals for such a definition. For example, aggression had been defined as an international crime, which, in effect, was rather like saying that aggression was aggression. Naturally, such an approach would not help that Committee to carry out the task before it.” Report of the Special Committee on the Question of Defining Aggression (A/2638), p. 4.
32. In his criticism of the USSR definition, Professor Bourquin, op. cit., p. 510, said: "Should the social reaction which ensues from the determination of the aggressor be possible if public opinion, without the support of which such reaction could not be understood, turned against the result of the operation, refusing to associate itself with the injustice involved in it? Within a realm of this kind [i. e., international relations] the algebra of formulas, even if passed by a convention, has little chance of offering resistance to the feeling of the people."
To which people does Professor Bourquin refer? Does he mean the people of the state against which the sanctions are directed? There will always be feeling against an action which imposes suffering on people, even if the action involves no injustice at all. The feeling of the people who are to be protected by the reaction of a security organization will certainly not turn against this reaction if it is directed against an aggressor in conformity with the USSR definition. The argument of public opinion is highly problematical, because it presupposes only one public opinion, whereas in reality there are almost always at least two public opinions, often in opposition to one another. Professor Bourquin's criticism of the USSR proposal could be used against any system of collective security which prohibits aggression by attaching sanctions to it.
32a. The definition of the Committee on Security Questions was followed in the Convention Defining Aggression between the Soviet Union and Afghanistan, Estonia, Latvia, Persia, Poland, Rumania, Turkey, signed at London on 3 July 1933. The territorial element plays a decisive part in this definition. Cf. W. Komarnicki, La Définition de l'Agresseur dans le Droit International Moderne. Académie de Droit International. Recueil des Cours. 1949, II., Vol. 75, p. 50.
33. In the Special Committee on the Question of Defining Aggression the repre sentative of Poland stated that "an enumerative definition had the advantages of setting forth the elements which constituted the crime, indicating unequivocally the type of acts to be condemned, and placing the burden of proof upon the aggressor instead of requiring the victim to prove that the action complained of was aggression. In his opinion, the Soviet draft, from this point of view, was a perfect solution of the problem. In the opinion of other representatives, such a definition would be dangerous. It would necessarily be incomplete and would thereby inevitably imply that acts not enumerated did not constitute aggression. That in turn would enable a State to commit aggression by circumventing the defi
nition. The decisions of international organs would be rendered automatic and the re-establishment of peace would thus be made more difficult.” The representátive of China “expressed the opinion that an enumeration could not be regarded as a true definition. It would not be sufficiently scientific and could not serve as guidance either for the organs of the United Nations responsible for the maintenance of peace and security, nor for the courts which might be set up to judge the perpetrators of crimes against humanity. The generally accepted sense of the word 'define showed that enumeration could not achieve the purpose sought which was to make clear the essential nature of a concept. From a purely practical standpoint, an enumeration of crimes could only cause criminals to change their methods. Moreover, on the one hand, the competent political or legal organs would tend to study the methods of aggression rather than the act itself, and on the other, they would not have the proper perspective for judging each individual case, and that was absolutely necessary to prevent the act or to punish the author.”
The representative of the United Kingdom emphasized that enumerative definitions "were the most deceiving. They were not so much definitions as incomplete catalogues of acts constituting aggression. Thus paragraphs 2, 3 and 4 not to mention the all-embracing provision of paragraph 5 had had to be added to the original text of the USSR proposal (A/AC.66/L.2/Rev.1). He questioned the value of a definition which, after listing various acts constituting aggression, stated that any other act declared to be aggression by the Security Council would also come into that category. Either the matter should be left to the Council, in which case there was no need for a catalogue, or the catalogue was effective in itself, in which case a list such as that proposed by the USSR delegation (A/AC.66/L.2/Rev.1) went too far. If applied literally, it would result in acts being wrongly declared as constituting aggression, and governments might argue that any act not covered in the text did not constitute aggression notwithstanding any decision to the contrary by the Security Council."
"Some members of the Committee had been in favour of a mixed definition that would start with a text in very general terms describing the characteristics of aggressive activity. This general text would be followed by an enumeration of specific acts, but the enumeration would be neither limitative nor exhaustive. It would not be obligatory but would simply be a series of examples. The advantage of a mixed definition was that it combined the merits and the positive aspects of the general and enumerative definitions. A mixed definition should therefore start with a generic concept including elements specific in their sig. nificance and be followed by an enumeration of the types of acts of aggression ..." This type of definition had been criticized by other members of the Committee as embodying the defects of the two other types. The representative of the United States said "that instead of trying to establish a general formula which would probably be incomplete, it would be better to offer the competent organs of the United Nations, and in the first place the Security Council, a list of factors to be taken into account in deciding a given case. Some other members of the Committee thought this idea constructive and worth examining." Report of the Special Committee on the Question of Defining Aggression (A/2638), pp. 4 f.
Some members of the Committee decidedly rejected the inclusion of indirect and especially of economic and ideological aggression in the definition of aggression. Cf. op. cit., pp. 8 ff.
34. United Nations. General Assembly. Ninth Session. Official Records, Sixth Committee, 406th meeting (A/C.6/SR. 406), pp. 45 f.
35. In his memorandum presented to the Committee on Arbitration and Security, established on 30 November 1924, by the Preparatory Commission for the Disarmament Conference, Mr. Rutgers (Netherlands) rejected the principle of defining the concept of aggression in advance. However, he considered that "it would be. practical to enumerate some of the facts which, according to circumstances, may serve as evidence that aggression has taken place.” He distinguished between acts which “constitute acts of aggression," such as the invasion of the territory of one state by the troops of another or an attack on a considerable scale launched by one state on the frontiers of another, and "factors which may serve as basis in determining the aggressor: (a) Actual industrial and economic mobilization carried out by a State either in its own territory or by persons or societies on foreign territory. (b) Secret military mobilization by the formation and employment of irregular troops or by a declaration of a state of danger of war which would serve as a pretext for commencing hostilities. (c) Air, chemical, or naval attack carried out by one party against another. (a) The presence of the armed forces of one party in the territory of another. (e) Refusal of either of the parties to withdraw its armed forces behind a line or lines indicated by the Council. (f) A definitely aggressive policy by one of the parties towards the other, and the consequent refusal of that party to submit the subject in dispute to the recommendations of the Council or to the decision of the Permanent Court of International Justice and to accept the recommendation or decision when given." Series of League of Nations Publications IX. Disarmament 1928. IX, 6, pp. 142 ff.
36. League of Nations. Records of the Fifth Assembly, Minutes of the First Committee (Official Journal, Special Supplement No. 24), p. 138 ff. Article 10 of the Protocol ran as follows:
"Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarized zone shall be held equivalent to resort to war. In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare:
1. If it has refused to submit the dispute to the procedure of pacific settlement provided by Articles 13 and 15 of the Covenant as amplified by the present Protocol, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognizing that the dispute between it and the other belligerent States arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State ; nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly, in accordance with Article 11 of the Covenant.
2. If it has violated provisional measures enjoined by the Council for the period while the proceedings are in progress as contemplated by Article 7 of the present Protocol.
Apart from the cases dealt with in paragraphs 1 and 2 of the present Article, if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution.
Any belligerent which has refused to accept the armistice or has violated its terms shall be deemed an aggressor.
The Council shall call upon the signatory States to apply forthwith against the aggressor the sanctions provided by Article 11 of the present Protocol and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent.”
(aa) The concept of sanctions.
As pointed out in a previous chapter, a social order guaranteeing collective security is by its very nature a legal order, and a legal order is a system of norms providing for sanctions. Hence, the organization of sanctions is one of the most important problems, if not the most important problem, of collective security.
The term "sanction" can have different meanings. In its widest sense, it means any measure taken in support of a social order regulating human behavior. The purpose of a sanction is to bring about that behavior which, according to the opinion of the social authority, is useful to society and hence is considered to be in conformity with the social order; and to prevent that behavior which, according to the opinion of the social authority, is harmful to society and hence is considered to be contrary to the social order. This purpose may be achieved in two different ways: with the use of force or without it. It is the essence of a legal order that it tries to bring about lawful and to prevent unlawful behavior by coercive measures—that is, by the forcible deprivation of life, freedom, property or other values as a reaction against a violation of the order. The coercive character of the measures concerned is established by the fact that they are applied without or even against the will of the person against whom they are directed and that physical force may be used in case of resistance. In this sense, legal sanctions are coercive reactions against a violation of the law. A violation or a delict may be already committed and ascertained in a legal procedure, as in the case of a punishment which is inflicted upon a criminal by a penal court. Alternatively, a delict may be only suspected, and coercive actions taken as provisional measures in order to prepare and secure the procedure for the ascertainment of a violation of the law and the execution of a sanction, as, for instance, in the case of arrest of a person by the police. A coercive measure may even be taken in order to prevent a violation of the law which, with a certain degree of probability, is expected in the future by the person against whom the measure is directed, e. g., the confinement of insane persons in an asylum, or the forcible internment of citizens of an enemy state in time of war in order to prevent them from committing delicts against the state at war with their
home state. In the widest sense, legal sanctions are coercive reactions against an actual violation of the law or against a possible violation, “possible” meaning suspected or expected.
The coercive reaction against a violation of the law may have no other purpose than to inflict an evil on the delinquent in order to deter him and others from committing similar delicts in the future. Such a sanction is called a punishment. The usual punishments of national law are capital punishment, imprisonment and fine, but the punishment may also consist of the forfeiture of political rights, discharge from office, and the like. It may even be restricted to the ascertainment of the fact that a person has violated the law. In this case one speaks of a "moral" sanction because its immediate purpose is to bring about moral disapprobation of the delinquent in the opinion of the public, although this measure may be a reaction provided for by the law and hence a legal sanction. It may not be the primary purpose, or even the purpose at all, of a coercive reaction against a violation of the law to deter others from similar violations of the law. The purpose may be to restore the situation which existed prior to a violation of the law, especially to repair the damage caused by the violation of the law. This is characteristic of the specific sanction of civil law, the so-called civil execution, which consists of forcibly depriving the violator of the law of part of his property, and which differs from the fine as a punishment of penal law in that the seized property or the result of its forced sale does not go to the public treasury, as a fine would, but to the damaged person. However, although this is not its main purpose, civil execution, the forcible deprivation of property, is aimed at deterring persons from similar violations of the law. Hence, it has a certain punitive character. The distinction between punishment and other sanctions is only relative. Sanctions, as evils forcibly inflicted upon men, always have the function of preventing further violations of the law and hence have a punitive character. However, this character may be more or less emphasized.
There are also coercive measures provided by the law which have no relation to an actual or possible violation of the law, such as the forcible destruction of buildings or other property in order to prevent the extension of a fire, or the forcible internment of persons inflicted by a contagious disease in order to prevent or restrict an epidemic. These coercive measures are not sanctions because they are not reactions against an actual or potential violation of the law. However, they are applied only under conditions and by persons precisely determined by the law. In this sense, the use of force constituted by these measures, like the use of force constituted by sanctions, is reserved to the legal community.