« ПредыдущаяПродолжить »
The application of sanctions is reserved to the Organization. However, the provisions of the Charter concerning sanctions are not very clear. The definition of an action against which the Security Council may take enforcement measures is not quite consistent with the provision of Article 2, paragraph 4. According to Article 39, the Security Council may take the enforcement measures referred to in Articles 41 and 42 in case of a "threat to the peace, breach of the peace, or act of aggression," whereas Article 2, paragraph 4, prohibits "the threat or use of force.” The use of non-armed force may be considered by the Security Council to be a “threat to the peace" and may then constitute the condition of an enforcement measure to be taken by this organ as a sanction. However, if the violation of international law is not committed by the use of armed force and hence is not a breach of the peace or an act of aggression, and if it is not considered by the Security Council to be a “threat to the peace," a sanction as an enforcement action in conformity with Articles 39, 41 or 42 cannot be taken. It is true that the sanction stipulated in Article 6, the expulsion from the Organization of a member who has violated the Principles of the Charter, is applicable in case of a use of force as referred to in Article 2, paragraph 4, the term force used in the wider sense comprising the use not only of armed force but of any kind of force. However, Article 6 applies only if the Principles of the Charter are "persistently” violated by a member, not if a member violates international law in a single case. If, as the wording of Article 2, paragraph 4, seems to indicate, the Charter prohibits any violation of international law on the part of the members and reserves the application of sanctions to the Organization, the Charter should have provided for sanctions to be applied by the Organization in case of any violation of international law. Since this is not the case, in contradiction to its wording, Article 2, paragraph may be interpreted as prohibiting only the use of armed force and not as forbidding reprisals to be taken by member states.
(b) The Problem of Aggression
(aa) The military concept of aggression and the legal concept.
The term "aggression” was originally a military-technical concept. It means a first attack. A state which is the first to perform an act of war against another state is an aggressor. The war to which this first state resorts is an aggressive war, or war of aggression, whereas, in resorting to a counterwar to defend itself, the other state wages a defensive war or war of defense. This distinction assumes legal importance only when the resort to war is prohibited either conditionally or unconditionally. The concept of aggression and the concept of illegal war are not identical. From a military-technical point of view, a war may be aggressive because it constitutes a first attack. However, this does not necessarily make it illegal. For example, the law prohibits the resort to war only under definite conditions. In conformity with these conditions, a war against a state which refuses to comply with the decision of an international tribunal is not forbidden. In this case the state which, in order to enforce the decision which the tribunal has issued in its favor, is the first to use armed force against the recalcitrant state is, from a military-technical point of view, the
aggressor but the war to which it resorts is perfectly legal, while the counterwar to which the other state resorts, is a defensive war but must be regarded as illegal. The same is true with respect to a war which the members of an international security organization are obliged to wage against a member state which has resorted to war against another member state in violation of the constituent treaty. The war which the states who are not being attacked themselves wage against the delinquent state is an aggressive war but is legal, while the counterwar to which the delinquent resorts is a defensive war but is illegal.
However, in legal terminology, there is an outspoken tendency to identify the concept of aggression with that of an illegal war or even an illegal use of force, a tendency to substitute a specifically legal concept of aggression for the original military-technical concept. The tendency is to designate as "aggression” that conduct of a state which a treaty constituting an international security system prohibits by attaching to it the specific sanctions of this system. Consequently, the meaning of the term "aggression” changes with the scope of the types of conduct against which an international security organization tries to protect its members. Hence, if the constituent treaty prohibits war under definite conditions, only a war resorted to under these conditions is considered to be aggression, while, even if it constitutes a first attack, a war resorted to under other conditions is not so stigmatized. Following the extent of the prohibition stipulated in the constituent treaty, any resort to war is regarded as aggression if the war is waged for a purpose other than that permitted by the constituent treaty, especially for a purpose other than the participation in the execution of the specific sanctions of the security system or the exercise of self-defense. 1
(bb) Aggression and self-defense as a restriction of the prohibition of
the use of armed force. As pointed out in a previous chapter, self-defense means the use of force by the victim of an act of aggression as a reaction against this aggression, i. e., as a reaction against an illegal use of force. Hence, the right of self-defense presupposes a legal order prohibiting in principle the use of force by the subjects of the order, so that the right of a subject to use force represents a restriction of this principle. If general international law does not prohibit the resort to war as the use of armed force, in other words if the bellum justum principle is not part of general international law, there can be no right of selfdefense under this law because there can be no use of armed force as a reaction against an illegal use of armed force. There is no need to justify the use of armed force as self-defense, as a restriction of or
exception to a general prohibition of the use of armed force, if no such prohibition exists. If the use of armed force by an aggressor is as legal as the use of armed force by a defender, self-defense is a legally irrelevant concept. Just as under general international law, if it does not contain the bellum justum principle, there is no collective security, there is no right of self-defense. There is a definite connection between the two legal phenomena. If general international law does not prohibit the use of armed force, an international right of self-defense—that is, the right of a state to use armed force as a reaction against an illegal use of armed force can be recognized only under a treaty prohibiting the use of armed force and thus establishing a system of international security.
Since the right of self-defense represents a restriction of the prohibition of the use of force, and since this restriction may be of wide or narrow scope, the right of self-defense should always be expressly defined in the legal order establishing the system of collective security in general and in the treaty constituting the system of international security in particular. From the point of view of legal positivism, the widespread idea that the international right of self-defense, as a consequence of the natural right of self-preservation, is always presupposed and hence does not need express stipulation, is without foundation and is the source of serious difficulty in interpreting the treaties prohibiting the use of armed force.la
Within a system of international security, self-defense may be permitted only as a reaction against an illegal use of armed force, against an "attack” which has actually begun. Hence, self-defense would be “defense” and the illegal use of armed force would be "aggression" in the military-technical sense of these terms. However, self-defense may also be recognized as a reaction against an attack which has not yet actually begun but which may reasonably be expected imminently. In this case, from a military-technical point of view, the use of armed force in the exercise of self-defense is an act of aggression, while from a legal point of view, the state against which self-defense is exercised is the aggressor. If an attack is not considered to be imminent but only to be probable in the near future, a war resorted to in order to forestall the attack is a preventive war. As a rule, a preventive war is prohibited within a system of international security and hence must be regarded as aggression.16 Within a security organization, the use of physical force by the individual members is permitted to a certain extent because the coercive machinery of the organization cannot function at the same moment the attack starts or appears imminent and hence the procedure of putting into operation the special sanctions of the system requires time. However, if the attack
has not yet started or is not imminent but is only considered probable in the near future, and consequently if there is time to prepare the operation of the coercive machinery of the security organization, there is no reason to permit the exercise of self-defense. Since it is difficult, if not impossible, to distinguish an international situation in which an attack on one state by another is imminent from a situation in which such an attack is only probable in the near future, the exercise of the right of self-defense within a system of international security may be properly restricted to the case of an armed attack which has already begun.
In conformity with the terminology of the Charter of the United Nations, a distinction must be made between individual and collective self-defense. Individual self-defense is the action exercised by a state which is the immediate victim of an armed attack. Collective selfdefense is the action by other members of the security organization which, without being attacked themselves, come to the assistance of the victim. Hence, collective self-defense is not "self”-defense but the defense of another, and if it consists of the use of armed force, it is defense and not aggression only from a legal point of view and not from a military-technical standpoint.
So-called collective self-defense—that is, the right to come to the assistance of the victim of an illegal use of armed force
may be restricted to the case in which a state-member or non-member of the organization-uses its own armed forces against a state which is a contracting party to the treaty constituting the security organization. However, the treaty may authorize or oblige the members to come to the assistance not only of another member but also of any other state, and not only in case the state is the victim of an illegal use of armed force by another state but also in case another state directly or indirectly supports revolutionary forces within the former, or even in case of a revolution not supported by a foreign state. This means that the security organization may protect its members not only against external and direct aggression but also against internal and indirect aggression,
Since within a more or less centralized system of international security the exercise of the right of individual and collective selfdefense must be permitted because the central organ of the organization cannot interfere immediately after an illegal use of armed force has taken place, the question of whether or not the use of armed force which has actually taken place is illegal must be decided by the state which claims to be exercising the right of individual or collective selfdefense. However, this is true only as long as the central organ of the security organization does not interfere. As soon as it does, this cen
tral organ must decide that question, and it may decide that question in another way than the state which claims to be exercising its right of self-defense. The central organ may decide that no armed attack has taken place which would justify the exercise of the right of selfdefense, and that consequently the state claiming to be a defender is, in truth, an aggressor. Consequently, a state can exercise the right of self-defense only at its own risk. (cc) Other exceptions to the prohibition of the use of armed force.
The prohibition of the use of armed force may be restricted not only by permitting the use of armed force in executing the specific sanctions provided by the constituent treaty and in exercising selfdefense, but also in case a state comes to the assistance of its own nationals abroad whose lives or property are seriously endangered.
The use of armed force may be prohibited by the constituent treaty and may thus constitute aggression only if it has the definite purpose of imposing the will of the state exercising the armed force on the state against which this action is directed. A state may resort to war against another state not in order to force this state to accept a change of their relations which could be brought about legally only with the voluntary consent of this state, but, on the contrary, in order to prevent the latter from forcing its will upon the former. This is the case of a preventive war which has already been discussed. Without resorting to war, a state may also perform a single act of armed force, e. g., it may occupy a definite place in the territory of a more powerful state only for the purpose of securing its defense against an attack by this state expected immediately or in the near future. This case differs from the case of a preventive war, but the difference is irrelevant within a system of international security. Whatever its purpose, unless it is an act of self-defense against an armed attack or an act of participation in the execution of the specific sanctions of the system, any use of armed force is a breach of the peace. Hence, without regard to its purpose, the use of armed force should be prohibited by a treaty constituting an effective system of international security. However, security treaties frequently prohibit the use of armed force only insofar is it may be directed against the territorial integrity or political independence (i. e., the sovereignty) of another state,* which means only if the purpose of the enforcement action is to violate the territorial integrity or political independence of another state. Since it is hardly possible to use armed force against another state without violating its territorial integrity or political independence, this restriction does not really impair the effectiveness of the security system.