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made the condition of a sanction, it is not illegal, and hence it is not "aggression” in the sense of an action prohibited by the security treaty.
A mixed definition of aggression is the one proposed by the representative of Panama at the 406th meeting of the Sixth Committee on 20 October 1954 84, which runs as follows:
1. Aggression means any use of armed force by one State against another State for any purpose other than individual or collective self-defence, or in pursuance of a decision or recommendation of a competent organ of the United Nations;
2. In addition to any other acts that the competent organs of the United Nations may declare to constitute aggression, the acts enumerated below are specific acts of aggression if committed for purposes other than those stated in the preceding paragraph: (a) invasion of the territory of a State by the armed forces of another State; (b) armed attack against the territory, population or land, naval or air forces of one State by the land, naval or air forces of another State; (c) blockade of the coast, ports, or any other part of the territory of a State by the land or naval forces of another State; (d) the organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions; (e) the annexation by the authorities of one State or territory belonging to another State by means of acts contrary to international law.
3. It shall rest with the General Assembly in the exercise of its general powers or with the Security Council in the exercise of the special power vested in it by Article 39 of the United Nations Charter to declare, at such time as it may deem appropriate, that the State that has directly or indirectly employed force in any of the ways set forth in
paragraphs 1 and 2 of this resolution is guilty of aggression. (1) The difficulties in defining aggression and in determining the
aggressor. It can certainly not be denied that defining aggression is difficult. However, to overcome the difficulties concerned, it is necessary to have a clear idea of their nature. First of all, it is necessary to avoid a confusion which almost always affects the discussion of the definition of aggression: the confusion between the difficulties which exist in defining "aggression” and those which exist in ascertaining that a concrete act is an act of aggression or, what amounts to the same
thing, in determining the aggressor in a concrete case in conformity with the definition of aggression. That this confusion actually occurs may be explained by the fact that if, and to the extent that, a definition of aggression is not pre-established in a constituent treaty but left to the law-applying organ, this function and that of determining the aggressor are both performed by the same individual or individuals, and hence the distinction between the two functions is not very clear in their minds. As a result, the difficulties involved in determining a concrete aggressor are mistaken for the difficulties involved in defining aggression, and vice versa.
From the foregoing it follows that the main difficulties which every attempt to define aggression encounters are caused by the decision concerning the scope of the definition—that is, by the answer to the question of how far the security system should go in prohibiting a definite conduct of states by attaching specific sanctions to it. As far as a pre-established definition is concerned, the difficulty consists of the fact that under particular circumstances which are not and cannot be foreseen, a certain action which does not fall under the definition may be, and an action which does fall under the definition may not be, an appropriate condition for a sanction. In other words, the difficulty is that the definition may prove to be too narrow or too broad. We have dealt with this problem which, as has been pointed out, is a problem of all legislation, as the formulation of general norms. The difficulty in an enumerative definition of aggression is that no exhaustive enumeration can be complete, especially in view of the modern technique of warfare, and if an enumeration is not exhaustive but only illustrative, the acts enumerated being only examples of aggression, the enumeration is not a definition at all.
Totally different from the difficulties in defining aggression are the difficulties in ascertaining that an act is an act of aggression, or, what amounts to the same thing, in determining the aggressor, in conformity with a definition, whether the definition is established in advance or is to be established by the law-applying organ competent to determine the aggressor. These difficulties are exactly the same as those encountered in any legal procedure for the ascertainment of a fact to which the law attaches certain consequences. They are the typical difficulties involved in gathering, examining and evaluating evidence whether the question is which of the states involved in a conflict was the first to use force, whether it is the intention of this state, or whether it is any other question to be answered in connection with the application of the general norm of the security system prohibiting aggression in a concrete case.
In the procedure by which the treaty constituting the security organization is to be applied, there are, as in any law-applying procedure, two different methods of regulating the procedure for ascertaining the legally relevant facts: one consists of leaving the lawapplying organ completely free in this respect, the other of establishing definite rules concerning the means of evidence and their evaluation. To adopt the first method within a system of international security means to confer an extraordinary power upon the organ competent to determine an aggressor. In this case, the position of this organ is not very different from that which results from leaving the definition of aggression to this organ. The restrictions imposed upon the law-applying organ by a pre-established definition may be outweighed by the organ's liberty in adjudging evidence. Attempts may be made to restrict this liberty or, to look at the problem from another angle, to facilitate the function of the organ. For this purpose, certain actions, indicated in the constituent treaty, may allow the presumption that aggression has taken place, e. g., the invasion of the territory of one state by the troops of another, or an attack on a considerable scale launched by one state against the frontier of another. It is especially difficult to ascertain that an act is an act of aggression if a definite intention of the state, which is to be stigmatized an aggressor, is an element of this concept. Hence, it may be considered advisable to insert into the constituent treaty an enumeration of certain objective facts as symptoms of such an intention, e. g., economic or military mobilization, presence of the armed forces of one state in the territory of another, or the refusal to submit the conflict to a pacific procedure. These facts would allow the lawapplying organ to presume that the intention exists. The presumption may or may not be conclusive—that is, the inference as to the existence of aggression or aggressive intention may or may not be made peremptory by the existence of the indicated facts. If the
presumption is conclusive, it cannot be reversed by any proof to the contrary, however strong the proof may be. It is irrebuttable, a presumptio juris et de jure. The enumeration of facts as irrebuttable evidence of the existence of aggression is equivalent to an enumerative definition of aggression.35 If the presumption is not irrebuttable, (a presumptio juris but not de jure), it can be rejected by a decision of the law-applying organ. The Geneva Protocol, a draft treaty adopted by the Assembly of the League of Nations on 2 October 1924 but abandoned the following year, contains a series of presumptions by which an aggressor may be determined "in the event hostilities having broken out,” but provides that these presumptions may be rejected by a unanimous decision of the Council.36
(mm) The problem of provocation.
Finally, it should be mentioned that there is a certain tendency to restrict the prohibition of the use of armed force and hence the concept of aggression to an unprovoked attack, so that a provoked use of armed force would be permitted and could be justified as self-defense. Provocation may consist of the use of armed force, or of the violation of international law not involving the use of armed force, or of an unfriendly attitude of a state towards another state which does not constitute any violation of international law. If a system of international security is to eliminate the principle of self-help as far as possible, only a provocation which consists of the use of armed force by one state against another can justify the use of armed force by the state attacked—that is, only if provoked by the use of armed force by another state, would a state be justified in using armed force itself. In this case, self-defense would be permitted only as a reaction against the use of armed force, and any use of armed force which is not selfdefense (or the execution of a specific sanction of the security system) would be aggression. If any violation of international law, and not only the use of armed force, is recognized as a provocation justifying the use of armed force by a single state—that is, if the states are authorized to resort to the use of armed force as a reaction against any violation of their rights—the principle of self-help prevails together with the bellum justum principle. This means that the lowest possible degree of international security exists. In this case, the concept of self-defense—that is, the use of armed force as a reaction against an illegal use of armed force is of little importance, since the use of armed force is legal as a reaction against any violation of the law. Hence, the concept of self-defense may be extended to include the reaction of a state against any violation of its rights, and the concept of aggression may be restricted to the use of armed force which is not a reaction against a violation of the law. If even the unfriendly attitude of a state, which does not constitute a violation of the law, is recognized as a provocation which justifies the use of armed force, and if a state may thus resort to the use of armed force as a reaction against the conduct of another state which is not illegal, even the principle of bellum justum does not prevail, and no international security whatsoever exists. In this case, the concept of aggression is not applicable at all, since the use of armed force is not illegal, and the concept of self-defense has no legal meaning.
1. The International Law Commission, established in pursuance of General Assembly Resolution 174 (II) of 21 November, 1947, adopted in its third session (16 May-27 July 1951) as a basis of discussion the following definition of aggression : "Aggression is the threat or use of force by a State or government against another State, in any manner, whatever the weapons employed and whether openly or otherwise, for any reason or for any purpose other than individual or collective self-defence or in pursuance of a decision or recommenda. tion by a competent organ of the United Nations.” However, when submitted to the final vote the definition was rejected. Report of the International Law Commission covering the work of its third session 16 May-27 July 1951. General Assembly, Official Records: Sixth Session, Suppl. No. 9 (A/1858), pp. 9, 10.
1a. Because the Kellogg-Briand Pact did not contain an express clause stipulating the right of self-defense, the contracting parties had to make reservations concerning their right to resort to war in the exercise of self-defense. It was generally assumed that the right of self-defense was presupposed by the Pact. However, the extent to which this right could be exercised under the Pact remained an open question which was answered in different ways by the various signatories. Thus in a note of June 23, 1928, the United States Government declared that the proposed treaty did not restrict or impair the right of selfdefense; but it justified this reservation by the doctrine that the right of selfdefense is established by natural law and hence does not need positive stipulation. "That right is inherent in every sovereign state and is implicit in every treaty. Every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense.” Treaty for the Renunciation of War, Department of State Publication No. 468 (1933), p. 57. Cf. Philip C. Jessup, A Modern Laro of Nations, New York 1948, p. 163. The statement that every nation “alone is competent to decide whether circumstances require recourse to war in self-defense” is hardly compatible with Articles 51 and 39 of the Charter of the United Nations. Cf. infra, note 3.
1b. Article 51 of the Charter runs as follows: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
The wording of this provision presupposes a natural right of self-defense existing independently of the Charter and declares only that it is not in conflict with this right: “Nothing in the present Charter shall impair the inherent right of individual and collective self-defense if an armed attack occurs against a Member of the United Nations ..." (In the French text the term “droit naturel de légitime défense" is used.) However, in truth, the Charter does not merely respect an already existing right but establishes a right and must establish it as an express restriction to the provision of Article 2, paragraph 4, which imposes upon the members the obligation to refrain in their international relations from the use of force. Since under Article 51 of the Charter the right