| I. | Substantive International Law - First Part |
| 6. | USE OF FORCE AND RELATED PROBLEMS |
| 6.2. | Self-defence |
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Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[pp. 35-36] Both Article 51 of the United Nations Charter and
Article 21 of the Organization of American States Charter refer to self-defence
as an exception to the principle of the prohibition of the use of force. Unlike
the United Nations Charter, the Organization of American States Charter does not
use the expression "collective self-defence", but refers to the case
of "self-defence in accordance with existing treaties or in fulfillment
thereof", one such treaty being the United Nations Charter. Furthermore it
is evident that if actions of the United States complied with all requirements
of the United Nations Charter so as to constitute the exercise of the right of
collective self-defence, it could not be argued that they could nevertheless
constitute a violation of Article 21 of the Organization of American States
Charter. It therefore follows that the situation of El Salvador with regard to
the assertion by the United States of the right of collective self-defence is
the same under the Organization of American States Charter as it is under the
United Nations Charter.
[p. 45] The Court would observe that the normal purpose of an
invocation of self-defence is to justify conduct which would otherwise be
wrongful. If advanced as a justification in itself, not coupled with a denial of
the conduct alleged, it may well imply both an admission of that conduct, and of
the wrongfulness of that conduct in the absence of the justification of
self-defence.
[p. 71] In the Court's view, however, if Nicaragua has been giving
support to the armed opposition in El Salvador, and if this constitutes an armed
attack on El Salvador and the other appropriate conditions are met, collective
self-defence could be legally invoked by the United States, even though there
may be the possibility of an additional motive, one perhaps even more decisive
for the United States, drawn from the political orientation of the present
Nicaraguan Government. The existence of an additional motive, other than that
officially proclaimed by the United States, could not deprive the latter of its
right to resort to collective self-defence. The conclusion to be drawn is that
special caution is called for in considering the allegations of the United
States concerning conduct by Nicaragua which may provide a sufficient basis for
self-defence.
[p. 94] As regards the suggestion that the areas covered by the two
sources of law are identical, the Court observes that the United Nations
Charter, the convention to which most of the United States argument is directed,
by no means covers the whole area of the regulation of the use of force in
international relations. On one essential point, this treaty itself refers to
pre-existing customary international law; this reference to customary law is
contained in the actual text of Article 5l, which mentions the "inherent
right" (in the French text the "droit naturel") of individual or
collective self-defence, which "nothing in the present Charter shall impair"
and which applies in the event of an armed attack. The Court therefore finds
that Article 51 of the Charter is only meaningful on the basis that there is a "natural"
or "inherent" right of self-defence, and it is hard to see how this
can be other than of a customary nature, even if its present content has been
confirmed and influenced by the Charter. Moreover the Charter, having itself
recognized the existence of this right, does not go on to regulate directly all
aspects of its content. For example, it does not contain any specific rule
whereby self-defence would warrant only measures which are proportional to the
armed attack and necessary to respond to it, a rule well established in
customary international law. Moreover, a definition of the "armed attack"
which, if found to exist, authorizes the exercise of the "inherent right"
of self-defence, is not provided in the Charter, and is not part of treaty law.
It cannot therefore be held that Article 51 is a provision which "subsumes
and supervenes" customary international law. It rather demonstrates that in
the field in question, the importance of which for the present dispute need
hardly be stressed, customary international law continues to exist alongside
treaty law. The areas governed by the two sources of law thus do not overlap
exactly, and the rules do not have the same content. This could also be
demonstrated for other subjects, in particular for the principle of
non-intervention.
[pp. 102-105] The general rule prohibiting force allows for certain
exceptions. In view of the arguments advanced by the United States to justify
the acts of which it is accused by Nicaragua, the Court must express a view on
the content of the right of self-defence, and more particularly the right of
collective self-defence. First, with regard to the existence of this right, it
notes that in the language of Article 51 of the United Nations Charter, the
inherent right (or "droit naturel") which any State possesses in the
event of an armed attack, covers both collective and individual self-defence.
Thus, the Charter itself testifies to the existence of the right of collective
self-defence in customary international law. Moreover, just as the wording of
certain General Assembly declarations adopted by States demonstrates their
recognition of the principle of the prohibition of force as definitely a matter
of customary international law, some of the wording in those declarations
operates similarly in respect of the right of self-defence (both collective and
individual). Thus, in the declaration quoted above on the Principles of
International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, the reference to the
prohibition of force is followed by a paragraph stating that:
"nothing in the foregoing paragraphs shall be construed as enlarging or
diminishing in any way the scope of the provisions of the Charter concerning
cases in which the use of force is lawful".
This resolution demonstrates that the States represented in the General
Assembly regard the exception to the prohibition of force constituted by the
right of individual or collective self-defence as already a matter of customary
international law.
With regard to the characteristics governing the right of self-defence,
since the Parties consider the existence of this right to be established as a
matter of customary international law, they have concentrated on the conditions
governing its use. In view of the circumstances in which the dispute has arisen,
reliance is placed by the Parties only on the right of self-defence in the case
of an armed attack which has already occurred, and the issue of the lawfulness
of a response to the imminent threat of armed attack has not been raised.
Accordingly the Court expresses no view on that issue. The Parties also agree in
holding that whether the response to the attack is lawful depends on observance
of the criteria of the necessity and the proportionality of the measures taken
in self-defence. Since the existence of the right of collective self-defence is
established in customary international law, the Court must define the specific
conditions which may have to be met for its exercise, in addition to the
conditions of necessity and proportionality to which the Parties have referred.
In the case of individual self-defence, the exercise of this right is
subject to the State concerned having been the victim of an armed attack.
Reliance on collective self-defence of course does not remove the need for this.
There appears now to be general agreement on the nature of the acts which can be
treated as constituting armed attacks. In particular, it may be considered to be
agreed that an armed attack must be understood as including not merely action by
regular armed forces across an international border, but also "the sending
by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to
amount to" (inter alia) an actual armed attack conducted by regular
forces, "or its substantial involvement therein". This description,
contained in Article 3, paragraph (g), of the Definition of Aggression
annexed to General Assembly resolution 3314 (XXIX), may be taken to reflect
customary international law. The Court sees no reason to deny that, in customary
law, the prohibition of armed attacks may apply to the sending by a State of
armed bands to the territory of another State, if such an operation, because of
its scale and effects, would have been classified as an armed attack rather than
as a mere frontier incident had it been carried out by regular armed forces. But
the Court does not believe that the concept of "armed attack" includes
not only acts by armed bands where such acts occur on a significant scale but
also assistance to rebels in the form of the provision of weapons or logistical
or other support. Such assistance may be regarded as a threat or use of force,
or amount to intervention in the internal or external affairs of other States.
It is also clear that it is the State which is the victim of an armed attack
which must form and declare the view that it has been so attacked. There is no
rule in customary international law permitting another State to exercise the
right of collective self-defence on the basis of its own assessment of the
situation. Where collective self-defence is invoked, it is to be expected that
the State for whose benefit this right is used will have declared itself to be
the victim of an armed attack.
The question remains whether the lawfulness of the use of collective
self-defence by the third State for the benefit of the attacked State also
depends on a request addressed by that State to the third State. A provision of
the Charter of the Organization of American States is here in point : and while
the Court has no jurisdiction to consider that instrument as applicable to the
dispute, it may examine it to ascertain what light it throws on the content of
customary international law. The Court notes that the Organization of American
States Charter includes, in Article 3 the principle that: "an act of
aggression against one American State is an act of aggression against all the
other American States" and a provision in Article 27 that:
"Every act of aggression by a State against the territorial integrity
or the inviolability of the territory or against the sovereignty or political
independence of an American State shall be considered an act of aggression
against the other American States."
Furthermore, by Article 3, paragraph 1, of the Inter-American Treaty of
Reciprocal Assistance, signed at Rio de Janeiro on 2 September 1947, the
High-Contracting Parties
"agree that an armed attack by any State against an American State
shall be considered as an attack against all the American States and,
consequently, each one of the said Contracting Parties undertakes to assist in
meeting the attack in the exercise of the inherent right of individual or
collective self-defence recognized by Article 51 of the Charter of the United
Nations";
and under paragraph 2 of that Article,
"On the request of the State or States directly attacked and until the
decision of the Organ of Consultation of the Inter-American System, each one of
the Contracting Parties may determine the immediate measures which it may
individually take in fulfilment of the obligation contained in the preceding
paragraph and in accordance with the principle of continental solidarity."
(The 1947 Rio Treaty was modified by the 1975 Protocol of San José,
Costa Rica, but that Protocol is not yet in force.)
The Court observes that the Treaty of Rio de Janeiro provides that measures
of collective self-defence taken by each State are decided "on the request
of the State or States directly attacked". It is significant that this
requirement of a request on the part of the attacked State appears in the treaty
particularly devoted to these matters of mutual assistance; it is not found in
the more general text (the Charter of the Organization of American States), but
Article 28 of that Charter provides for the application of the measures and
procedures laid down in "the special treaties on the subject".
At all events, the Court finds that in customary international law, whether
of a general kind or that particular to the inter-American legal system, there
is no rule permitting the exercise of collective self-defence in the absence of
a request by the State which regards itself as the victim of an armed attack.
The Court concludes that the requirement of a request by the State which is the
victim of the alleged attack is additional to the requirement that such a State
should have declared itself to have been attacked.
At this point, the Court may consider whether in customary international law
there is any requirement corresponding to that found in the treaty law of the
United Nations Charter, by which the state claiming to use the right of
individual or collective self-defence must report to an international body,
empowered to determine the conformity with international law of the measures
which the state is seeking to justify on that basis. Thus Article 51 of the
United Nations Charter requires that measures taken by States in exercise of
this right of self-defence must be "immediately reported" to the
Security Council. As the Court has observed above, a principle enshrined in a
treaty, if reflected in customary international law, may well be so unencumbered
with the conditions and modalities surrounding it in the treaty. Whatever
influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition
of the lawfulness of the use of force in the self-defence that a procedure so
closely dependent on the content of a treaty commitment and of the institutions
established by it, should have been followed. On the other hand, if self-defence
is advanced as a justification for measures which would otherwise be in breach
both of the principle of customary international law and of that contained in
the Charter, it is to be expected that the conditions of the Charter should be
respected. Thus for the purpose of enquiry into the customary law position, the
absence of a report may be one of the factors indicating whether the State in
question was itself convinced that it was acting in self-defence.
[p. 110] When dealing with the rule of prohibition of the use of
force, the Court considered the exception to it constituted by the exercise of
the right of collective self-defence in the event of armed attack. Similarly, it
must now consider the following question: if one State acts towards another
State in breach of the principle of non-intervention, may a third State lawfully
take such action by way of counter-measures against the first State as would
otherwise constitute an intervention in its internal affairs? A right to act in
this way in the case of intervention would be analogous to the right of
collective self-defence in the case of an armed attack, but both the act which
gives rise to the reaction, and that reaction itself, would in principle be less
grave. Since the Court is here dealing with a dispute in which a wrongful use of
force is alleged, it has primarily to consider whether a State has a right to
respond to intervention with intervention going so far as to justify a use of
force in reaction to measures which do not constitute an armed attack but may
nevertheless involve a use of force. The question is itself undeniably relevant
from the theoretical viewpoint. However, since the Court is bound to confine its
decision to those points of law which are essential to the settlement of the
dispute before it, it is not for the Court here to determine what direct
reactions are lawfully open to a State which considers itself the victim of
another State's acts of intervention, possibly involving the use of force. Hence
it has not to determine whether, in the event of Nicaragua's having committed
any such acts against El Salvador, the latter was lawfully entitled to take any
particular counter-measure. It might however be suggested that, in such a
situation, the United States might have been permitted to intervene in Nicaragua
in the exercise of some right analogous to the right of collective self-defence,
one which might be resorted to in a case of intervention short of armed attack.
The Court has recalled above (paragraphs 193 to 195) that for one State to
use force against another, on the ground that that State has committed a
wrongful act of force against a third State, is regarded as lawful, by way of
exception, only when the wrongful act provoking the response was an armed
attack. Thus the lawfulness of the use of force by a State in response to a
wrongful act of which it has not itself been the victim is not admitted when
this wrongful act is not an armed attack. In the view of the Court, under
international law in force today - whether customary international
law or that of the United Nations system - States do not have a right of "collective"
armed response to acts which do not constitute an "armed attack".
[pp. 116-117] As to subparagraph 1 (d) 1, clearly "measures...
necessary to fulfill the obligations of a Party for the maintenance or
restoration of international peace and security" must signify measures
which the State in question must take in performance of an international
commitment of which any evasion constitutes a breach. A commitment of this kind
is accepted by Members of the United Nations in respect of Security Council
decisions taken on the basis of Chapter VII of the United Nations Charter (Art.
25), or, for members of the Organization of American States, in respect of
decisions taken by the Organ of Consultation of the Inter-American system, under
Articles 3 and 20 of the Inter-American Treaty of Reciprocal Assistance (Rio de
Janeiro, 1947). The Court does not believe that this provision of the 1956
Treaty can apply to the eventuality of the exercise of the right of individual
or collective self-defence.
On the other hand, action taken in self-defence, individual or collective,
might be considered as part of the wider category of measures qualified in
Article XXI as "necessary to protect" the "essential security
interests" of a party. In its Counter-Memorial on jurisdiction and
admissibility, the United States contended that : "Any possible doubts as
to the applicability of the FCN Treaty to Nicaragua's claims is dispelled by
Article XXI of the Treaty ..." After quoting paragraph 1 (d) (set
out in paragraph 221 above), the Counter-Memorial continues:
"Article XXI has been described by the Senate Foreign Relations
Committee as containing 'the usual exceptions relating ... to traffic in arms,
ammunition and implements of war and to measures for collective or individual
self-defense'."
It is difficult to deny that self-defence against an armed attack
corresponds to measures necessary to protect essential security interests. But
the concept of essential security interests certainly extends beyond the concept
of an armed attack, and has been subject to very broad interpretations in the
past.
[p. 119] As regards El Salvador, the Court has found (paragraph 160
above) that it is satisfied that between July 1979 and the early months of 1981,
an intermittent flow of arms was routed via the territory of Nicaragua to the
armed opposition in that country. The Court was not however satisfied that
assistance has reached the Salvadorian armed opposition, on a scale of any
significance, since the early months of 1981, or that the Government of
Nicaragua was responsible for any flow of arms at either period. Even assuming
that the supply of arms to the opposition in El Salvador could be treated as
imputable to the Government of Nicaragua, to justify invocation of the right of
collective self-defence in customary international law, it would have to be
equated with an armed attack by Nicaragua on El Salvador. As stated above, the
Court is unable to consider that, in customary international law, the provision
of arms to the opposition in another State constitutes an armed attack on that
State. Even at a time when the arms flow was at its peak, and again assuming the
participation of the Nicaraguan Government, that would not constitute such armed
attack.
[pp. 120-121] The exercise of the right of collective self-defence
presupposes that an armed attack has occurred; and it is evident that it is the
victim State, being the most directly aware of that fact, which is likely to
draw general attention to its plight. It is also evident that if the victim
State wishes another State to come to its help in the exercise of the right of
collective self-defence, it will normally make an express request to that
effect. Thus in the present instance, the Court is entitled to take account, in
judging the asserted justification of the exercise of collective self-defence by
the United States, of the actual conduct of El Salvador, Honduras and Costa Rica
at the relevant time, as indicative of a belief by the State in question that it
was the victim of an armed attack by Nicaragua, and of the making of a request
by the victim State to the United States for help in the exercise of collective
self-defence.
The Court has seen no evidence that the conduct of those States was
consistent with such a situation, either at the time when the United States
first embarked on the activities which were allegedly justified by self-defence,
or indeed for a long period subsequently.
[pp. 121-122] There is also an aspect of the conduct of the United
States which the Court is entitled to take into account as indicative of the
view of that State on the question of the existence of an armed attack. At no
time, up to the present, has the United States Government addressed to the
Security Council, in connection with the matters the subject of the present
case, the report which is required by Article 51 of the United Nations Charter
in respect of measures which a State believes itself bound to take when it
exercises the right of individual or collective self-defence. The Court, whose
decision has to be made on the basis of customary international law, has already
observed that in the context of that law, the reporting obligation enshrined in
Article 51 of the Charter of the United Nations does not exist. It does not
therefore treat the absence of a report on the part of the United States as the
breach of an undertaking forming part of the customary international law
applicable to the present dispute. But the Court is justified in observing that
this conduct of the United States hardly conforms with the latter's avowed
conviction that it was acting in the context of collective self-defence as
consecrated by Article 51 of the Charter. This fact is all the more noteworthy
because, in the Security Council, the United States has itself taken the view
that failure to observe the requirement to make a report contradicted a State's
claim to be acting on the basis of collective self-defence (S/PV. 2187).
[pp. 122-123] Since the Court has found that the condition sine
qua non required for the exercise of the right of collective self-defence by
the United States is not fulfilled in this case, the appraisal of the United
States activities in relation to the criteria of necessity and proportionality
takes on a different significance. As a result of this conclusion of the Court,
even if the United States activities in question had been carried on in strict
compliance with the canons of necessity and proportionality, they would not
thereby become lawful. If however they were not, this may constitute an
additional ground of wrongfulness. On the question of necessity, the Court
observes that the United States measures taken in December 1981 (or, at the
earliest, March of that year - paragraph 93 above) cannot be said to correspond
to a "necessity" justifying the United States action against Nicaragua
on the basis of assistance given by Nicaragua to the armed opposition in El
Salvador. First, these measures were only taken, and began to produce their
effects, several months after the major offensive of the armed opposition
against the Government of El Salvador had been completely repulsed (January
1981), and the actions of the opposition considerably reduced in consequence.
Thus it was possible to eliminate the main danger to the Salvadorian Government
without the United States embarking on activities in and against Nicaragua.
Accordingly, it cannot be held that these activities were undertaken in the
light of necessity. Whether or not the assistance to the contras might
meet the criterion of proportionality, the Court cannot regard the United States
activities summarized in paragraphs 80, 81 and 86, i.e., those relating to the
mining of the Nicaraguan ports and the attacks on ports, oil installations,
etc., as satisfying that criterion. Whatever uncertainty may exist as to the
exact scale of the aid received by the Salvadorian armed opposition from
Nicaragua, it is clear that these latter United States activities in question
could not have been proportionate to that aid. Finally on this point, the Court
must also observe that the reaction of the United States in the context of what
it regarded as self-defence was continued long after the period in which any
presumed armed attack by Nicaragua could reasonably be contemplated.
[p. 127] On the legal level the Court cannot regard response to an
intervention by Nicaragua as such a justification. While an armed attack would
give rise to an entitlement to collective self-defence, a use of force of a
lesser degree of gravity cannot, as the Court has already observed (paragraph
211 above), produce any entitlement to take collective counter-measures
involving the use of force. The acts of which Nicaragua is accused, even
assuming them to have been established and imputable to that State, could only
have justified proportionate counter-measures on the part of the State which had
been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They
could not justify counter-measures taken by a third State, the United States,
and particularly could not justify intervention involving the use of force.
[pp. 268-269 D.O. Schwebel] The delictual acts of the Nicaraguan
Government have not been confined to provision of very large quantities of arms,
munitions and supplies (an act which of itself might be viewed as not tantamount
to an armed attack); Nicaragua (and Cuba) have joined with the Salvadoran rebels
in the organization, planning and training for their acts of insurgency; and
Nicaragua has provided the Salvadoran insurgents with command-and-control
facilities, bases, communications and sanctuary, which have enabled the
leadership of the Salvadoran insurgency to operate from Nicaraguan territory.
Under both customary and conventional international law, that scale of
Nicaraguan subversive activity not only constitutes unlawful intervention in the
affairs of El Salvador; it is cumulatively tantamount to an armed attack upon El
Salvador. (It is striking that both Nicaragua and the United States, in their
pleadings before the Court, agree that significant material support by a State
of foreign armed irregulars who endeavour forcibly to overthrow the Government
of another State is tantamount to armed attack upon the latter State by the
former State.) Not only is El Salvador entitled to defend itself against this
armed attack; it can, and has, called upon the United States to assist it in the
exercise of collective self-defence. The United States is legally entitled to
respond. It can lawfully respond to Nicaragua's covert attempt to overthrow the
Government of El Salvador by overt or covert pressures, military and other, upon
the Government of Nicaragua, which are exerted either directly upon the
Government, territory and people of Nicaragua by the United States, or
indirectly through the actions of Nicaraguan rebels - the "contras"
- supported by the United States.
[p. 269 D.O. Schwebel] While United States pressure upon Nicaragua
is essentially lawful, nevertheless questions about the legality of aspects of
United States conduct remain. In my view, the fundamental question is this.
Granting that the United States can join El Salvador in measures of collective
self-defence (even if, contrary to Article 51 of the United Nations Charter,
they were not reported to the United Nations Security Council, as, by their
nature, covert defensive measures will not be), those measures must be
necessary, and proportionate to the delicts - the actions tantamount to armed
attack - of Nicaragua. And they must in their nature be fundamentally measures
of self-defence.
By these standards, the unannounced mining by the United States of
Nicaraguan ports was a violation of international law. That mining could affect
and did affect third States as against whom no rationale of self-defence could
apply in these circumstances. As against Nicaragua, however, the mining was no
less lawful than other measures of pressure.
[p. 270 D.O. Schwebel] To say, as did Nicaraguan counsel, that
action designed to overthrow a government cannot be defensive, is evident error,
which would have come as a surprise to Roosevelt and Churchill (and Stalin), who
insisted on the unconditional surrender of the Axis Powers. In the largest-scale
international hostilities currently in progress, one State, which maintains that
it is the victim of armed attack, proclaims as its essential condition for peace
that the government of the alleged aggressor be overthrown - a condition which
some may find extreme, others not, but which in any event has not aroused the
legal condemnation of the international community. Moreover, I agree with the
Court that, if Nicaragua has been giving support to the armed opposition in El
Salvador, and if this constitutes an armed attack upon El Salvador, collective
self-defence may be legally invoked by the United States, even though the United
States may possibly have an additional and perhaps more decisive motive drawn
from the political orientation of the Nicaraguan Government.
[p. 332 D.O. Schwebel] In my view, the Judgment of the Court on the
critical question of whether aid to irregulars may be tantamount to an armed
attack departs from accepted - and desirable - law. Far from contributing, as so
many of the Court's judgments have, to the progressive development of the law,
on this question the Court's Judgment implies a regressive development of the
law which fails to take account of the realities of the use of force in
international relations: realities which have unfortunately plagued the world
for years and give every sign of continuing to do so - whether they are
recognized by the Court or not. I regret to say that I believe that the Court's
Judgment on this profoundly important question may detract as much from the
security of States as it does from the state of the law.
[p. 344 D.O. Schwebel] It accordingly follows not only that the
multiple acts of subversive intervention by Nicaragua against El Salvador are
acts of aggression, and that those acts fall within the proscriptions of the
Definition of Aggression. It is also important to note that the Definition -
contrary to the Thirteen-Power proposals - designedly says nothing about
prohibiting a State from having recourse to the right of individual or
collective self-defence when that State "is a victim in its own territory
of subversive and/or terrorist acts by irregular, volunteer or armed bands
organized or supported by another State". That prohibitive proposal proved
unacceptable to the international community. Rather, it is plain that, under the
Definition, and customary international law, and in the practice of the United
Nations and of States, a State is entitled in precisely these circumstances to
act in individual and collective self-defence. To be entitled to do so, it is
not required to show that the irregulars operating on its territory act as the
agents of the foreign State or States which support them. It is enough to show
that those States are "substantially involved" in the sending of those
irregulars on to its territory.
[pp. 347-348 D.O. Schwebel] I do not agree with a construction of
the United Nations Charter which would read Article 51 as if it were worded: "Nothing
in the present Charter shall impair the inherent right of individual or
collective self-defence if, and only if, an armed attack occurs ..." I do
not agree that the terms or intent of Article 51 eliminate the right of
self-defence under customary international law, or confine its entire scope to
the express terms of Article 51. While I recognize that the issue is
controversial and open to more than one substantial view.
[pp. 372-373 D.O. Schwebel] What matters in this context is not
whether one agrees or disagrees with the legality of the cited acts of the
United Nations, Israel, France, the United Kingdom, the United States, China,
Viet Nam, Iraq, the Soviet Union, Afghanistan and Nicaragua. It is by no means
suggested that all of these actions are of the same legal value; some were
clearly lawful, others clearly not. But what is significant is that these
actions, whose legality has been affirmed by those carrying them out, provide
ample and significant State practice indicating that what is proposed as a
limitation upon self-defence and counter-intervention is not today applied as a
rule of international law. It is not generally accepted State practice.
Nevertheless, if the proposed rule is not the accepted rule, should it be?
Should the response of a victim of direct or indirect aggression, and a State or
States lending it support in its resistance to that aggression, be confined to
the territory of the victim? The purpose of such a principle would be to
constrict conflict by reducing the actuality of and potential for its
territorial expansion. That is an appealing purpose. But the drawbacks of
implementing such a principle appear to outweigh its attractions. For a result
of confining hostilities to the territory of the victim would be to encourage
victimization; potential aggressors would be the likelier to estimate that their
aggression will be free of significant cost. The potential aggressor might
reason that it has little to lose in launching covert aggression, as by
concealed support of insurgents operating against the government of a
neighbouring State. If the aggression succeeds, the aggressor's purposes are
achieved; if not, the aggressor cannot suffer in its territory. If it has done
no more than lend substantial support to foreign insurgents, it is those
insurgents alone who will take the punishment. The aggressor may lose its
material investment in the foreign insurgency but no more; it will not suffer
deterrence of its forces, on its territory, with incidental damage to its people
and possessions. Thus if one attempt at foreign armed subversion fails, another
can be attempted at a more propitious time. Or, indeed, the aggressor can carry
on its support of a foreign insurgency continuously, relatively secure in the "rule"
of international law that it is immune from a defensive response on its
territory directed at its forces. In short, such a rule would encourage rather
than deter aggression. Thus it would not succeed even in its purpose of
confining the potential for the territorial expansion of hostilities.
International law is better left as it is, confining the scope of permissible
self-defence, individual and collective, by the provisions of the United Nations
Charter and the norms of necessity and proportionality.
[p. 376 D.O. Schwebel] It must be recalled, however, that, if the
legality of the actions of the United States in this case are to be adjudged not
under the United Nations Charter and the other treaties on which Nicaragua has
relied, but, by reason of the multilateral treaty reservation of the United
States, under customary international law, customary international law knows
nothing of an obligation of a State to report to the Security Council.
[pp. 379-380 D.O. Schwebel] The use of mines in hostilities is not
of itself unlawful. That today is so whether the hostilities are declared or
undeclared; a state of war or of belligerency need not exist. If the use of
force by the United States against Nicaragua is lawful, then the use of mining
as a measure of such use of force may, in principle, be lawful, provided that
its usage comports with measures taken in the exercise of the right of
collective self-defence.
...
However, as against third States whose shipping was damaged or whose
nationals were injured by mines laid by or on behalf of the United States, the
international responsibility of the United States may arise. Third States were
and are entitled to carry on commerce with Nicaragua and their ships are
entitled to make use of Nicaraguan ports. If the United States were to be
justified in taking blockade-like measures against Nicaraguan ports, as by
mining, it could only be so if its mining of Nicaraguan ports were publicly and
officially announced by it and if international shipping were duly warned by it
about the fact that mines would be or had been laid in specified waters.
However, no such announcement was made by the United States in advance of or
upon the laying of mines; international shipping was not duly warned by it in a
timely, official manner.
[p. 535 D.O. Jennings] One is, however, immediately faced with the
difficulty that a plea of collective self-defence is obviously a possible
justification of intervention and that this is the justification which the
United States has pleaded. So it is again a dispute arising under Article 51 of
the United Nations Charter. If one turns to the Inter-American system of law,
the same problem arises. Article 18 of the Charter of the Organization of
American States deals with intervention in peculiarly comprehensive terms, in
that it prohibits intervention "for any reason whatever"; it also, in
Article 21, deals with force and self-defence, but in specifically treaty terms.
Thus, by that article, the American States "bind themselves in their
international relations not to have recourse to the use of force, except in the
case of self-defense in accordance with existing treaties or in fulfillment
thereof" (emphasis added).
[pp. 543-544 D.O. Jennings] It may readily be agreed that the mere
provision of arms cannot be said to amount to an armed attack. But the provision
of arms may, nevertheless, be a very important element in what might be thought
to amount to armed attack, where it is coupled with other kinds of involvement.
Accordingly, it seems to me that to say that the provision of arms, coupled with
"logistical or other support" is not armed attack is going much too
far. Logistical support may itself be crucial. According to the dictionary,
logistics covers the "art of moving, lodging, and supplying troops and
equipment" (Concise Oxford English Dictionary, 7th ed., 1982). If
there is added to all this "other support", it becomes difficult to
understand what it is, short of direct attack by a State's own forces, that may
not be done apparently without a lawful response in the form of collective
self-defence nor indeed may be responded to at all by the use of force or threat
of force, for, to cite the Court again, "States do not have a right of
'collective' armed response to acts which do not constitute an 'armed attack'"
(see para. 211).
This looks to me neither realistic nor just in the world where power
struggles are in every continent carried on by destabilization, interference in
civil strife, comfort, aid and encouragement to rebels, and the like. The
original scheme of the United Nations Charter, whereby force would be deployed
by the United Nations itself, in accordance with the provisions of Chapter VII
of the Charter, has never come into effect. Therefore an essential element in
the Charter design is totally missing. In this situation it seems dangerous to
define unnecessarily strictly the conditions for lawful self-defence, so as to
leave a large area where both a forcible response to force is forbidden, and yet
the United Nations employment of force, which was intended to fill that gap, is
absent.
[pp. 544-546 D.O. Jennings] Obviously the notion of collective
self-defence is open to abuse and it is necessary to ensure that it is not
employable as a mere cover for aggression disguised as protection, and the Court
is therefore right to define it somewhat strictly. Even so, it may be doubted
whether it is helpful to suggest that the attacked State must in some more or
less formal way have "declared" itself the victim of an attack and
then have, as an additional "requirement", made a formal request to a
particular third State for assistance. Thus the Court says:
"The Court concludes that the requirement of a request by the State
which is the victim of the alleged attack is additional to the requirement that
such a State should have declared itself to have been attacked." (Para.
199.)
It may readily be agreed that the victim State must both be in real need of
assistance and must want it and that the fulfilment of both these conditions
must be shown. But to ask that these requirements take the form of some sort of
formal declaration and request might sometimes be unrealistic.
But there is another objection to this way of looking at collective
self-defence. It seems to be based almost upon an idea of vicarious defence by
champions: that a third State may lawfully come to the aid of an authenticated
victim of armed attack provided that the requirements of a declaration of attack
and a request for assistance are complied with. But whatever collective
self-defence means, it does not mean vicarious defence; for that way the notion
is indeed open to abuse. The assisting State is not an authorized champion,
permitted under certain conditions to go to the aid of a favoured State. The
assisting State surely must, by going to the victim State's assistance, be also,
and in addition to other requirements, in some measure defending itself. There
should even in "collective self-defence" be some real element of self
2 involved with the notion of defence. This is presumably also the philosophy
which underlies mutual security arrangements, such as the system of the
Organization of American States, for which indeed Article 51 was specifically
designed. By such a system of collective security, the security of each member
State is meant to be involved with the security of the others; not merely as a
result of a contractual arrangement but by the real consequences of the System
and its organization. Thus, Article 27 of the Charter of the Organization of
American States provides that:
"Every act of aggression by a State against the territorial integrity
or the inviolability of the territory or against the sovereignty or political
independence of an American State shall be considered an act of aggression
against the other American States."
This, I believe, should not be regarded as a mere contractual arrangement
for collective defence - a legal fiction used as a device for arranging for
mutual defence -; it is to be regarded as an organized system of collective
security by which the security of each member is made really and truly to have
become involved with the security of the others, thus providing a true basis for
a system of collective self-defence.
| 1 | Subparagraph 1 (d) of Article XXI of the 1956 FCN-Treaty. |
| 2 | It may be objected that the very term "self-defence" is a common law notion, and that, for instance, the French equivalent of "légitime défense" does not mention "self". Here, however, the French version is for once, merely unhelpful; it does no more than beg the question of what is "légitime". |
