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World Court Digest

I. Substantive International Law - First Part
5.2. General Assembly

¤ Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14

[p. 100] This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.

[p. 345 D.O. Schwebel] The significance of the Definition of Aggression - or of any definition of aggression - should not be magnified. It is not a treaty text. It is a resolution of the General Assembly which rightly recognizes the supervening force of the United Nations Charter and the supervening authority in matters of aggression of the Security Council. The Definition has its conditions, its flaws, its ambiguities and uncertainties. It is open-ended. Any definition of aggression must be, because aggression can only be ultimately defined and found in the particular case in the light of its particular facts. At the same time, the Definition of Aggression is not a resolution of the General Assembly which purports to declare principles of customary international law not regulated by the United Nations Charter. The legal significance of such resolutions is controversial, a controversy which is not relevant for immediate purposes. This resolution rather is an interpretation by the General Assembly of the meaning of the provisions of the United Nations Charter governing the use of armed force - the use of armed force "in contravention of the Charter". As such, of itself it is significant. Weighed as it should be in the light of the practice and the doctrine which the Nicaraguan Memorial assembles - which may be extensively amplified to the same effect - the Definition cannot be dismissed. In substance, however, the Court's Judgment - while affirming that the Definition of Aggression reflects customary international law - does dismiss both the import of the Definition of Aggression and the State practice and doctrine which on this paramount point is reflected by the Definition.