« ПредыдущаяПродолжить »
(kk) General or enumerative definition of aggression.
Aggression may be defined in a constitutent treaty either by a general formula (a so-called general definition), by specifying the particular actions which constitute aggression (a so-called enumerative definition), or by a general formula illustrated by the specifications of certain actions which fall within the scope of the general definition (mixed definition).28
A typical example of a general formula defining aggression is the statement: aggression is any use of armed force by one state against another for purposes other than self-defense or the execution of a sanction stipulated by the treaty constituting a security organization. 29 It makes no difference whether the treaty contains an express statement defining aggression in this way, or whether it simply prohibits any use of armed force by attaching specific sanctions including enforcement measures involving the use of armed force to it, excluding the application of these sanctions in the case of self-defense. It stands to reason that if a constituent treaty includes a general norm of this content, it need not employ the term “aggression” at all, and it would be superfluous to insert an express statement defining this term into the treaty. The definition of aggression is implied in the general norm and may be deduced from it by interpretation. Hence, the fact that a definition is superfluous in this case cannot be used, as it actually has been used, as an argument against a pre-established definition of aggression; nor can such an argument be based on the fact that a general definition, which is either implied in the general norm or is expressly formulated, could not achieve the main object of indicating precisely the cases in which aggression could be said to have occurred, and that in spite of such a definition it would be impossible to say in advance whether or not a given act was an aggressive act.80 The main object of a general definition is not to enable one to indicate precisely and in advance all possible acts of aggression. At any rate, such a prediction is impossible. However, without doubt, there is a greater probability of foreseeing which acts will be declared acts of aggression by law-applying organs if there is a general definition of aggression inserted in the constituent treaty than if the treaty forbids aggression without any express or implied definition of this concept.31
Because the general norm formulated above or an express definition corresponding to such a norm does not allow a precise indication of all possible acts which are to be recognized as acts of aggression, a security system of this type has a relatively high degree of flexibility. It is flexible although it is not the definition of aggression, but the
definition of a term used in the definition of aggression, the term “armed force,” which is left to the law-applying organ. There is no doubt that this term can be defined in very different ways and that a remarkable amount of discretion in defining the term is conferred upon the law-applying organ competent to decide whether a concrete act does or does not constitute a use of armed force.
A characteristic example of a so-called enumerative definition is the definition of agression contained in the proposal of the USSR Delegation submitted to the General Commission of the Disarmament Conference (1932–1933) on 6 February 1933. The proposal did not present a definition of aggression but a definition of the aggressor which ran as follows (Doc. 1933. IX., 10, p. 237):
“1. The aggressor in an international conflict shall be con-
(a) Declaration of war against another State;
(c) Bombarding the territory of another State by its
(d) The landing in, or introduction within the frontiers of, another State of land, naval or air forces without the permission of the Government of such a State, or the infringement of the conditions of such permission, particularly as regards the duration of sojourn or extension of area;
(e) The establishment of a naval blockade of the coast or ports of another State." To this enumeration of acts of aggression, intended to be considered as exhaustive, the following provision was added:
“No considerations whatsoever of a political, strategical, or economic nature, including the desire to exploit natural riches or to obtain any sort of advantages or privileges on the territory of another State, no references to considerable capital investments or other special interests in a given State, or to the alleged absence of certain attributes of State organization in the case of a given country, shall be accepted as justi
fication of aggression as defined in Clause 1." There followed an enumeration of particular facts on which a justification for attack could not be based. Since the enumeration of the acts of aggression in Clause 1 was exhaustive, the provision of Clause 2 as well as the enumeration of facts on which a justification of attack could not be based, was superfluous from the point of view of correct legal technique. 82
The USSR proposal was discussed by the General Commission and after discussion submitted to the Committee on Security Questions, which presented to the General Commission a report containing the following Articles (Doc. 1935. IX. 4, p. 683):
“ARTICLE 1.-The aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be that State which is the first to commit any of the following actions:
(1) Declaration of war upon another State;
(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
(3) Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State;
(4) Naval blockade of the coasts or ports of another State;
(5) Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory all the measures in its power to deprive those bands of all assistance or protection.
ARTICLE 2.—No political, military, economic or other considerations may serve as an excuse or justification for the aggression referred to in Article 1."
The most important difference between the USSR definition and the definition by the Committee on Security Questions is found in the latter's point 5 which added acts of indirect aggression.32a
In 1953 the USSR submitted to the Special Committee on the Question of Defining Aggression the following draft resolution (A/AC.66/L.2/Rev.1):
The General Assembly, considering it necessary to formulate directives with a view to determining which party is guilty of aggression, declares that:
i. In an international conflict that State shall be declared the attacker which first commits one of the following acts: (a) declaration of war against another State; (b) invasion by its armed forces, even without a declaration of war, of the territory of another State; (c) bombardment by its land, sea or air forces of the territory of another State or the carrying out of a deliberate attack on the ships or aircraft of the latter; (d) the landing or leading of its land, sea or air forces inside the boundaries of another State without the permission of the government of the latter, or the violation of the conditions of such permission, particularly as regards the length of their stay or the extent of the area in which they may stay; (e) naval blockade of the coasts or ports of another State; (f)
support of armed bands organized in its own territory which invade the territory of another State, or refusal, on being requested by the invaded State, to take in its own territory any action within its power to deny such bands any aid or protection.
2. That State shall be declared to have committed an act of indirect aggression which: (a) encourages subversive activity against another State (acts of terrorism, diversion, etc.); (b) promotes the outbreak of civil war within another State; (c) promotes an internal upheaval in another State or a reversal of policy in favour of the aggressor.
3. That State shall be declared to have committed an act of economic aggression which first commits one of the following acts: (a) takes against another State measures of economic pressure violating its sovereignty and economic independence and threatening the bases of its economic life; (b) takes against another State measures preventing it from exploiting or nationalizing its own natural riches; (c) subjects another State to an economic blockade.
4. That State shall be declared to have committed an act of ideological aggression which: (a) encourages war propaganda; (b) encourages propaganda in favour of using atomic, bacterial, chemical and other weapons of mass destruction; (c) promotes the propagation of fascist-nazi views of racial and national exclusiveness, and of hatred and contempt for other peoples.
5. An act other than those listed in the preceding paragraphs may when committed by a State be deemed to constitute aggression if declared by resolution of the Security Council in a particular case to be an attack or an act of economic, ideological or indirect aggression.
6. Attacks such as those referred to in paragraph 1 and acts of economic, ideological and indirect aggression such as those referred to in paragraphs 2, 3, and 4 may not be justified by any arguments of a political, strategic or economic nature, or by the desire to exploit natural riches in the territory of the State attacked or to derive any other kind of advantages or privileges, or by reference to the amount of capital invested in the State attacked or to any other particular interests in its territory, or by the affirmation that the State attacked lacks the distinguishing marks of statehood.-In particular, the following may not be used as justifications:
A. The internal position of any State, as for example: (a) the backwardness of any nation politically, economically or culturally; (b) alleged shortcomings of its administration ; (c) any danger which may threaten the life or property of aliens; (d) any revolutionary or counter-revolutionary movement, civil war, disorders, or strikes; (e) the establishment or maintenance in any State of any political, economic or social system.
B. Any acts, legislation or orders of any State, as for example: (a) the violation of international treaties; (b) the
violation of rights and interests in the sphere of trade, con-
7. In the event of the mobilization or concentration by
the meantime adopt requisite measures of a military nature similar to those described above, without, however,
crossing the frontier. The enumerative definition formulated in this draft resolution is characterized by the fact that it includes not only acts of indirect but also of economic and ideological aggression. 33
It is evident that an enumerative definition of aggression (or the aggressor) such as the one quoted above, restricts the freedom of action of the organ competent to apply the treaty containing such a definition to a much greater extent, and thus renders the security system less flexible, than the general definition mentioned above. However, neither a general nor an enumerative definition of aggression inserted into the constituent treaty attaching specific sanctions to acts of aggression necessarily leads to an application of these sanctions in all cases which, in the opinion of the law-applying organ, fall within the scope of the definition, or, as it is usually but incorrectly formulated, to the “automatic” operation of the coercive machinery of the security system. The law laid down in the constituent treaty may authorize the law-applying organ not to proceed immediately to the determination of the aggressor but first to call upon the parties to the conflict to cease hostilities and conform to certain measures of conservation, such as the withdrawal of troops beyond a certain line, or the acceptance of an investigation on the spot by impartial authorities. The law may also authorize the lawapplying organ, once it has ascertained the existence of an act of aggression, to apply peaceful measures to settle the conflict before applying sanctions. The law-applying organ may even be authorized to abstain altogether from applying sanctions under particular circumstances to be determined by this organ. However, in this latter case the fact must be considered that, if a definite conduct is not