Aerial Incident of 27 July 1955 (United States of America v.
Bulgaria) requested an extension to September 2nd, 1958, of the time-limit for the
OVERVIEW OF THE CASE
This case arose out of the incident which was the subject of the proceedings
in the case concerning the Aerial Incident of 27 July 1955 (Israel v. Bulgaria).
The aircraft destroyed by Bulgarian anti-aircraft defence forces was carrying
several United States nationals, who all lost their lives. Their Government
asked the Court to find Bulgaria liable for the losses thereby caused and to
award damages. Bulgaria filed preliminary objections to the Court’s
jurisdiction, but, before hearings were due to open, the United States
informed the Court of its decision, after further consideration, not to proceed
with its application. Accordingly, the case was removed from the List by an
Order of 30 May 1960.
ORDER
The President of the International Court of Justice,
having regard to Article 48 of the Statute of the Court,
having regard to Article 37 of the Rules of the Court;
Having regard to the Order of November 26th, 1957, in the case concerning
the Aerial Incident of July 27th, 1955, between the United States of America
and Bulgaria, whereby June 2nd, 1958, was fixed as the time-limit for the
filing of the Memorial of the Government of the United States of America and
the fixing of the time-limit for the filing by the Respondent of its Counter-
Memorial was reserved for a subsequent Order;
Having regard to the Order of January 27th, 1958, in the said case, whereby
December 9th, 1958, was fixed as the time-limit for the riling of the Counter-
Memorial of the Government of the People's Republic of Bulgaria and the
rest of the procedure was reserved for further decision;
Whereas, by a letter of May 2nd, 1958, received in the Registry on May 6th,
the Agent for the Government of the United States of [p23] America
filing of the Memorial of that Government;
Whereas, on May 7th, 1958, a copy of the said letter was sent to the Agent
for the Government of the People's Republic of Bulgaria, who was invited to
state the views of his Government on the request therein contained as soon
as possible; and whereas the Bulgarian Minister for Foreign Affairs was the
same day notified by a telegram of the request;
Whereas no reply to these communications has yet reached the Registry;
Whereas, however, by a letter of January 18th, 1958, which was received in
the Registry on January 22nd, and upon which the aforementioned Order of
January 27th, 1958, was made, the Agent for the Government of the
People's Republic of Bulgaria, who had been informed of the date fixed for
the filing of the Memorial of the Government of the United States of America,
stated that he considered that, in accordance with Article 37 of the Rules and
in connection with Article 62 of the Rules, the Court should fix a time-limit for
the Counter-Memorial at least equal to that fixed for the Memorial;
Whereas there is no objection to granting the application of the Agent for the
Government of the United States of America for an extension of the time-
limit, and to granting a similar extension of the time-limit for the Counter-
Memorial of the Government of the People's Republic of Bulgaria;
Extends as follows the time-limits fixed by the Orders made in this case on
November 26th, 1957, and January 27th, 1958;
For the Memorial of the Government of the United States of America:
September 2nd, 1958;
For the Counter-Memorial of the Government of the People's Republic of
Bulgaria: June 9th, 1959;
The subsequent procedure remaining reserved for further decision.

Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this nineteenth day of May, one thousand nine
hundred and fifty-eight, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
United States of America and to the Government of the People's Republic of
Bulgaria, respectively.
NICARAGUA VS THE UNITED STATES: USE OF FORCE AND SELF-
DEFENSE (1 OF 3)
International Court of Justice Contentious Case: Case Concerning the
Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States)
Year of Decision: 1986.
Overview:
The case involved military and paramilitary activities carried out by the United
States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to
find that these activities violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de Liberacion Nacional (FSLN).
Supporters of the former Somoza Government and former members of the
National Guard opposed the new government. The US – initially supportive
of the new government – changed its attitude when, according to the United
States, it found that Nicaragua was providing logistical support and weapons
to guerrillas in El Salvador. In April 1981 the United States stopped its aid to
Nicaragua and in September 1981, according to Nicaragua, the United
States “decided to plan and undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the
border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE),
which operated along the border with Costa Rica. Initial US support to these
groups fighting against the Nicaraguan Government (called “contras”) was
covert. Later, the United States officially acknowledged its support (for
example: In 1983 budgetary legislation enacted by the United States
Congress made specific provision for funds to be used by United States
intelligence agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of
the contras, the United States devised their strategy and directed their
tactics, and that the contras were paid for and directly controlled by the
United States. Nicaragua also alleged that some attacks against Nicaragua
were carried out, directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports, and other attacks on ports, oil
installations, and a naval base. Nicaragua alleged that aircrafts belonging to
the United States flew over Nicaraguan territory to gather intelligence, supply
to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after
refusing to accept the ICJ’s jurisdiction to decide the case. The United
States at the jurisdictional phase of the hearing, however, stated that it relied
on an inherent right of collective self-defense guaranteed in A. 51 of the UN
Charter when it provided “upon request proportionate and appropriate
assistance…” to Costa Rica, Honduras, and El Salvador in response to
Nicaragua’s acts of aggression against those countries (paras 126, 128).
Questions before the Court:
1. Did the United States violate its customary international law
obligation not to intervene in the affairs of another State, when it
trained, armed, equipped, and financed the contra forces or when it
encouraged, supported, and aided the military and paramilitary
activities against Nicaragua?
2. Did the United States violate its customary international law
obligation not to use force against another State, when it directly
 attacked Nicaragua in 1983 and 1984 and when its activities in
point (1) above resulted in the use of force?
3. Can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as collective
self-defense?
4. Did the United States breach its customary international law
obligation not to violate the sovereignty of another State, when it
directed or authorized its aircrafts to fly over the territory of
Nicaragua and because of acts referred to in (2) above?
5. Did the United States breach its customary international law
obligations not to violate the sovereignty of another State, not to
intervene in its affairs, not to use force against another State and
not to interrupt peaceful maritime commerce, when it laid mines in
the internal waters and in the territorial sea of Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation to (1), (2),
(4) and (5) above. On (3), the Court found that the United States could not
rely on collective self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary
international law obligation not to use force against another State
when its activities with the contras resulted in the threat or use of
force (see paras 191-201).
The Court held that:
 The prohibition on the use of force is found both in Article 2(4) of the
Charter of the United Nations (UN Charter) and in customary
international law.
 In a controversial finding the Court sub-classified the use of force
as:
(1) “most grave forms of the use of force” (i.e. those that constitute an armed
attack); and
(2) “other less grave forms” of the use of force (i.e. organizing, instigating,
assisting, or participating in acts of civil strife and terrorist acts in another
State – when the acts referred to involve a threat or use of force, but not
amounting to an armed attack). (Para 191),
 The United States violated the customary international law
prohibition on the use of force when it laid mines in Nicaraguan
ports. It also violated this prohibition when it attacked Nicaraguan
ports, oil installations, and a naval base (see below). The United
States could only justify its action on the basis of collective self-
defense, if certain criteria were met (these criteria are discussed
below).
 The United States violated the customary international law
prohibition on the use of force when it assisted the contras by
“organizing or encouraging the organization of irregular forces and
armed bands… for incursion into the territory of another state” and
participated “in acts of civil strife…in another State” and when these
acts involved the threat or use of force.
 The supply of funds to the contras did not violate the prohibition on
the use of force. On the contrary, Nicaragua had previously argued
before the Court that the United States determined the timing of
offensives against Nicaragua when it provided funds to the contras.
The Court held that “…it does not follow that each provision of
funds by the United States was made to set in motion a particular
offensive, and that that offensive was planned by the United
States.” The Court held further that the arming and training of the
contras and the supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did not violate
the prohibition on the use of force (para 227) (again, this aspect will
be discussed in detail below).
2. The Court held that the United States violated its customary
international law obligation not to use force against another State
when it directly attacked Nicaragua in 1983 and 1984 (see paras 187 –
201).
Note: A controversial but interesting aspect of the Court’s judgement was its
definition of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups, irregulars
or mercenaries, which carry out acts of (sic) armed force against another
State of such gravity as to amount to (inter alia) an actual armed attack
conducted by regular forces, or its (the State’s) substantial involvement
therein”.
Note also that that he second point somewhat resembles Article 3(g) of
the UNGA Resolution 3314 (XXIX) on the Definition of Aggression.
The Court further held that:
 Mere frontier incidents will not considered as armed attacks, unless,
because of its scale and effects, it would have been classified as an
armed attack had it been carried out by regular forces.
 Assistance to rebels by providing weapons or logistical support did
not constitute an armed attack. Instead, it can be regarded as a
threat or use of force or an intervention in the internal or external
affairs of other States (see paras 195, 230).
 Under Article 51 of the UN Charter and under CIL – self-defence is
only available against a use of force that amounts to an armed
attack (para 211).
3. The Court held that the United States could not justify its military
and paramilitary activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements
on the exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent
right of individual or collectiveself-defence if an armed attack occurs
against a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-
defence shall be immediately reported to the Security Council.”
The Court held that:
 Customary international law allows for exceptions to the prohibition
on the use of force, which includes the right to individual or
collective self-defence (see here for a difference between individual
and collective self defense). The United States, at an earlier stage
of the proceedings, had also agreed that the UN Charter
acknowledges the existence of this customary international law
right when it talks of the “inherent” right under Article 51 of the
Charter (para.193).
 When a State claims that it used force in collective self-defence, the
Court would examine the following:
(1) Whether the circumstances required for the exercise of self-defence
existed; and
(2) Whether the steps taken by the State, which was acting in self-defence,
corresponds to the requirements of international law.
 Under international law, several requirements must be met for a
State to exercise the right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The
assessment on whether an armed attack had taken place or not, is done by
the State who was subjected to the attack. A third State cannot exercise a
right of collective self-defence based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for
assistance. The Court held that “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”;
(4) A State that is attacked, does not, under customary international law,
have the same obligation as under Article 51 of the UN Charter to report to
the Security Council that an armed attack happened – but the Court held
that “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”
(see paras 200, 232 -236).
“…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 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 (See paras 200, 232 -236)”.
 The Court, then, looked extensively into the conduct of Nicaragua,
El Salvador, Costa Rica, and Honduras to determine if (1) an
armed attack was undertaken by Nicaragua against the three
countries, which in turn would (2) necessitate those countries to act
in self-defence against Nicaragua (paras 230 – 236). The
Court noted that (1) none of the countries who were allegedly
subject to an armed attack by Nicaragua declared themselves as
victims of an armed attack; (2) they did not request assistance from
the United States to exercise its right of self-defence; (3) the United
States did not claim that when it used force, it was acting under
Article 51 of the UN Charter; and (4) the United States did not report
that it was acting in self-defense to the Security Council. The Court
concluded that, based on the above, the United States cannot
justify its use of force as collective self-defence.
 In any event, the Court held that the criteria relating to necessity
and proportionality, that is required to be met when using force in
self-defence – were also not fulfilled (para 237).
4. The Court held that the United States breached its CIL obligation
not to intervene in the affairs of another State, when it trained, armed,
equipped and financed the contra forces or encouraged, supported
and aided the military and paramilitary activities against Nicaragua.
The Court held that:
 The principle of non-intervention requires that every State has a
right to conduct its affairs without outside interference. In other
words, the principle “…forbids States or groups of States to
intervene directly or indirectly in internal or external affairs of other
States.” This is a corollary of the principle of sovereign equality of
States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in
which each State is permitted, by the principle of State sovereignty to decide
freely. One of these is the choice of a political, economic, social and cultural
system, and the formulation of foreign policy. Intervention is wrongful when it
uses methods of coercion in regard to such choices, which must remain free
ones. The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action, or in
the indirect form of support for subversive or terrorist armed activities within
another State (para 205).”
 Nicaragua stated that the activities of the United States were
aimed to overthrow the government of Nicaragua, to substantially
damage the economy and to weaken the political system with the
aim to coerce the Government of Nicaragua to accept various
political demands of the United States. The Court concluded that:
“…first, that the United States intended, by its support of the contras, to
coerce the Government of Nicaragua in respect of matters in which each
State is permitted, by the principle of State sovereignty, to decide freely (see
paragraph 205 above) ; and secondly that the intention of the contras
themselves was to overthrow the present Government of Nicaragua… The
Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State
whose purpose is to overthrow the government of that State, that amounts to
an intervention by the one State in the internal affairs of the other, whether or
not the political objective of the State giving such support and assistance is
equally far reaching.”
 The financial support, training, supply of weapons, intelligence and
logistic support given by the United States to the contras
violated the principle of non-interference. “…(N)o such general right
of intervention, in support of an opposition within another State,
exists in contemporary international law”, even if such a request for
assistance is made by an opposition group of that State (see para
246 for more).
5. The United States violated its customary international law obligation
not to violate the sovereignty of another State, when it directed or
authorized its aircrafts to fly over Nicaraguan territory and when it laid
mines in the internal waters of Nicaragua and its territorial sea.
 The Court examined evidence and found that in early 1984 mines
were laid in or close to ports of the territorial sea or internal waters of
Nicaragua “by persons in the pay or acting ion the instructions” of
the United States and acting under its supervision with its logistical
support. The United States did not issue any warning on the
location or existence of mines and this resulted in injuries and
increases in maritime insurance rates.
 The Court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-
altitude flights, complained of as causing sonic booms. It held that a
State’s sovereignty extends to its internal waters, its territorial sea,
and the airspace above its territory. The United States violated
customary international law when it laid mines in the territorial sea
and internal waters of Nicaragua and when it carried out
unauthorised overflights over Nicaraguan airspace by aircrafts that
belong to or was under the control of the United States..
Case Concerning East Timor
(Portugal v. Australia)
Judgment of June 30, 1995
On 22 February 1991 Portugal had instituted proceedings against Australia
concerning "certain activities of Australia with respect to East Timor".
Portugal acted as the administering Power over East Timor in accordance
with Chapter XI of the Charter of the United Nations. Portugal claimed that
Australia, by the conclusion of a Treaty of "Cooperation in an area between
the Indonesian Province of East Timor and Northern Australia of 11
December 1989", had failed to observe the obligation to respect the powers
and duties of Portugal as the administering Power of East Timor, as well as
the right of the people of East Timor to self-determination and the related
rights. Australia, according to Portugal's allegations, had thereby incurred
international responsibility vis-à-vis both the people of East Timor and
Portugal, which claimed to have remained the administering Power
according to several resolutions of the General Assembly and the Security
Council, even though it had left East Timor definitely when Indonesia
invaded East Timor in 1975. As the basis of jurisdiction Portugal referred to
the declarations of both States according to Art. 36 paragraph 2 of the
Statute. Australia objected to the jurisdiction of the Court and the admissibility
of the application. The central issue for the Court was whether the 1989
Treaty could have been legally concluded between Indonesia and Australia
or whether Portugal alone was empowered to conclude treaties on behalf of
East Timor. Thus, the main question was whether the Court could decide the
case in the absence of Indonesia which had not accepted the jurisdiction of
the Court and was not inclined to intervene in the case.
Australia argued that the Court was confronted with a situation comparable
to that in the Monetary Gold Case, namely that the Court would have to
decide on the lawfulness of Indonesia's entry into and continuing presence in
East Timor as well as the lawfulness of the conclusion of the Treaty, what
could not be done in the absence of Indonesia. While Portugal agreed in
principle on this point, it disagreed that the Court had in fact to decide on the
forementioned questions. Portugal argued that the Court had only to judge
upon the objective conduct of Australia, which consisted in having
negotiated, concluded and initiated performance of the 1989 Treaty with
Indonesia, and that this question was perfectly separable from any question
relating to the lawfulness of the conduct of Indonesia.
In its judgment, however, the Court concluded that Australia's behaviour
could not be assessed without first entering into the question of why
Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal
allegedly could have done so. The Court was of the opinion that the very
subject-matter of the decision would necessarily be a determination of
whether Indonesia could or could not have acquired the power to conclude
treaties on behalf of East Timor relating to the resources of its continental
shelf. Such a determination, however, could not be made without the
consent of Indonesia.
The Court also rejected Portugal's additional argument that the rights which
Australia had allegedly breached were rights erga omnes and as such
permitted Portugal to sue Australia individually, regardless of whether or not
another State had conducted itself in a similarly unlawful manner. The Court
fully shared the assertion of Portugal that the right of peoples to self-
determination had an erga omnes character. Nevertheless, the Court
considered that the erga omnes character of a norm and the principle of
consent to the Court's jurisdiction were two different things. Whatever the
nature of the obligations invoked, the Court could not rule on the lawfulness
of the conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State not a party to the case.
The Court likewise dismissed the argument of Portugal that the United
Nations resolutions concerning the status of Portugal as administering
Power were imposing upon all States an obligation not to recognize any
authority of Indonesia over East Timor. The Court found that without
prejudice to the question of the binding or non-binding nature of these
resolutions such an obligation could not be inferred from those resolutions.
Therefore, the Court would have necessarily to rule upon the lawfulness of
Indonesia's conduct as a prerequisite for deciding Portugal's contention that
Australia violated its obligation to respect Portugal's status as administering
Power and East Timor's status as a non-self governing territory and the right
of 7its people to self-determination and to permanent sovereignty of its
natural resources. Thus, the rights and obligations of Indonesia would
constitute the very subject-matter of the case and could only be judged with
the consent of Indonesia. Since this consent was lacking, the Court had to
dismiss the case, despite the importance of the questions raised.
Legality of Use of Force (Yugoslavia v. United States of
America)
On 29 April 1999, the (former) Federal Republic of Yugoslavia (FRY)
instituted proceedings before the International Court of Justice (ICJ) against
the United States of America “for violation of the obligation not to use force”,
resulting from the bombing of Yugoslav territory by the United States and
other Member States of NATO. Concurrent to this Application, the FRY
submitted a request for the indication of provisional measures, calling on the
ICJ to order the United States to “cease immediately its acts of use of force”
and to refrain from any further threat or act of force against the FRY.
In filing the Application, the FRY relied on Article IX of the Convention on the
Prevention and Punishment of Genocide, 1948 and Article 38(5) of the
Rules of the Court. These articles state, respectively, that disputes between
contracting parties relating to the interpretation, application or fulfilment of the
Convention shall be submitted to the ICJ, and that applications filed against
States which have not accepted the Court’s jurisdiction cannot proceed
unless and until that State accepts the Court’s jurisdiction for the purposes of
the case.
In delivering its decision on 2 June 1999 the ICJ first sought to emphasize its
deep concern over the “human tragedy” in Kosovo, and declared its
profound concern with the use of force in the Yugoslav territories, which it
deemed to “raise very serious issues of international law”. Nevertheless, the
ICJ reiterated the fundamental principle of its Statute that it cannot settle a
dispute between states in the absence of the consent of those states to its
jurisdiction. Furthermore, it reminded the parties that it was unable to indicate
provisional measures without first establishing prima facie jurisdiction in a
case.
On the issue of prima facie jurisdiction, the ICJ ruled that whilst it was
indisputable that both the United States and the Federal Republic of
Yugoslavia are parties to the Genocide Convention, a reservation made to
Article IX by the United States declaring that its “specific consent” is needed
before any dispute is submitted to the ICJ, meant that Article IX could not
constitute a basis for jurisdiction. Regarding Article 38(5), the Court said that
in the absence of consent by the United States it lacked even prima facie
jurisdiction. As a result, in rejecting the FRY’s request for provisional
measures by twelve votes to three, the Court concluded that it “manifestly
lacked jurisdiction to entertain Yugoslavia’s Application”.
Land, Island and Maritime Frontier Dispute Case parties, within six months, conclude a Special Agreement to submit the
(El Salvador v. Honduras), dispute to the ICJ. Accordingly, a Special Agreement was concluded on
May, 24, 1986 requesting the Court to delimit the frontier between El
Judgment of 11 September 1992
Salvador and Honduras in the subject six sectors and to determine the legal
status of the islands in the Gulf of Fonseca, and the waters of the Gulf itself.
On 11 December 1986, El Salvador and Honduras jointly notified the Court
Regarding the land boundary, the decision of the Court was unanimous for
of a Special Agreement concluded between them on 24 May 1986 whereby
all but the fourth sector, which was decided against the vote of ad hoc Judge
a dispute referred to as "Land, Island and Maritime Frontier Dispute" would
Valticos.
be submitted for decision by a Chamber to be constituted according to
The Court relied on the uti possidetis juris principle, according to which the
Article 26 para.2 of the Statute. The Chamber would consist of three
national boundaries of former colonies correspond to the earlier
Members of the Court and two judges ad hoc chosen by each Party. The
administrative borders of the colonies. The Court underlined that it was the
Chamber finally consisted of Judges Oda, Sette-Camara and Sir Robert
application of this principle which provided States liberated from former
Jennings and the ad hoc judges Valticos and Torres Bernárdez (cf. Digest,
colonial empires with internationally recognized borders. The different titles
vol. 1, page 294).
invoked by the parties to the case were of different legal value; thus, the
The dispute was essentially rooted in the fall of the Spanish Colonial Empire
Court decided to recognize only the title deeds granted by the Spanish
in Central America in the 19th century. Both Honduras and El Salvador
crown as valid proof of title as well as topographical characteristics in order to
belonged to the Captaincy-General of Guatemala, which itself was a part of
define a clearly recognizable borderline.
Mexico at the time. In 1821, Honduras and El Salvador joined the Federal
With regard to the islands in the Gulf of Fonseca, the Court decided in a vote
Republic of Central America and became independant in 1839 after the
of 4 to 1 (against : ad hoc Judge Torres Bernárdez) that, according to Art. 2
disintegration of the Federal Republic. Their respective national borders
para. 2 of the Special Agreement, the parties had transferred general
corresponded to the administrative borders recognized for the former
jurisdiction over all islands located in the Gulf to the Court as far as their
Spanish colonies according to the uti possidetis iuris principle applied first in
national affiliation was in dispute. Accordingly, the Court concluded that three
Central America and later in Africa.
islands were in dispute, namely El Tigre, Meanguera and Meanguerita,
As early as 1854, the legal status of the islands located in the Gulf of
refusing Honduras' contention that El Tigre had been part of Honduras since
Fonseca became an issue of dispute; the question of the land frontier
1854, without challenge.
followed in 1861. Border incidents led to mounting tension between the
The decision of the Court was based on the assumption that none of the
States and, ultimately, to an armed conflict in 1969. However, in 1972 the
islands had been terra nullius in 1821, the date of independance. Thus,
parties were able to reach an agreement on a substantial part of the land
sovereignty over the islands had been achieved according to the uti
border between El Salvador and Honduras; only six sectors of the frontier
possidetis juris principle. However, the application of this principle suffered
remained unsettled. A mediation process initiated in 1978 resulted in the
from the lack of documents that might have testified clearly the
conclusion of a peace treaty in 1980.
appertainance of the islands to one administrative district or the other. Thus
Under this treaty a Joint Border Commission was created to determine the
the Court was forced to concentrtate more on the behaviour of the parties
boundary in the remaining six sectors as well as to decide upon the legal
with regard to the islands after 1821. On this basis the Court found that El
status of the islands and the maritime spaces. In the event that the parties
Tigre appertained to Honduras and Meanguera and Meanguerita to El
did not reach a settlement within five years, the treaty provided that the
Salvador.
The decision on the legal situation of the maritime spaces of the Gulf
constituted the part of the proceedings where the intervention of Nicaragua
had been admitted (Cf. Digest, vol. 1, p. 294f). The Court, in this context, had
first to decide whether the Special Agreement empowered it to draw the
frontier only within or also outside the closing line of the Gulf. Following the
argument of El Salvador, the Court came to the conclusion that it was not
competent to delimit the waters of the Gulf, because the Special Agreement
did not contain indications in this sense. According to the Agreement, the
Court had to determine the legal status of the waters of the Gulf on the basis
of applicable international law and, insofar as necessary, the General Peace
Treaty of 1980 between El Salvador and Honduras. In view of its general
characteristics, dimensions and proportions, the Gulf would today be
regarded as a juridical bay in accordance with the Convention on the
Territorial Sea and the Contiguous Zone of 1958 and the Convention on the
Law of the Sea of 1982. As a consequence thereof, if the Gulf was a single
State bay, a closing line could be drawn and the waters thereby enclosed
and considered as internal waters. However, the Gulf was not a single State
bay but constituted a so called historical bay, which is neither defined in the
1958 Convention nor in the Convention of 1982. From this fact the Court
concluded that its decision had to be taken on the basis of customary
international law. After reviewing its own jurisprudence on the topic, the Court
found that it had to examine the history of the Gulf. In this context, much
weight was accorded to a judgment of the Central American Court of Justice
of 1917 in a dispute between El Salvador and Nicaragua. That Court had
come to the conclusion that the Gulf of Fonseca effectively constituted a
"closed sea" belonging to all three coastal States communally, with the
exception of a three mile zone established unilaterally by each coastal State.
Thus, the Central American Court viewed the Gulf of Fonseca as a
condominium resulting from the succession of the three States from Spain in
1821. Until then, the Gulf had been a single State bay belonging to Spain
alone. According to the Court, the decision of the Central American Court
underlined the fact that at the time of independance, no boundaries were
delimited in the Gulf and thus the waters had remained undivided. The
Court, however, stressed that the decision of the Central American Court
constituted a binding judgment only between the two parties originally
involved, namely El Salvador and Nicaragua, and accordingly, the Court had
to reach its own decision. With a 4 to 1 vote, the Court affirmed that the Gulf
of Fonseca was a case of "historic waters", whereby the three coastal States
had succeeded to communal sovereignty. In contrast to the frontier delimited
on land, the waters of the Gulf had never been divided or otherwise delimited
after the independance of the three coastal States. Thus, the communal
succession for the three States was a logical consequence of the uti
possidetis juris principle with regard to the sovereignty of the Gulf.
Finally, the Court drew the closing line of the Gulf between Punta de
Amapala and Punta Cosiguina and determined that the special regime of the
Gulf did not extend beyond this closing line. The legal status of these waters
inside the Gulf were defined by the Court as sui generis, but would be the
same as that of internal waters and not that of territorial sea, except for the
three-mile coastal zone of each State.
As to the waters outside the Gulf, the Chamber noted that intirely new
concepts of maritime law existed present day, unheard of in 1917. The
Chamber held in this context that there is a territorial sea proper seawards of
the closing line of the Gulf. Since there is a condominium of the waters inside
the Gulf, there is a tripartite presence at the closing line. Only seaward of the
closing line could modern territorial seas exist, as otherwise, the Gulf waters
could not be waters of a historic bay. Therefore, the three coastal States,
joint sovereigns of the internal waters, must each be entitled outside the
closing line to a territorial sea, continental shelf and exclusive economic
zone. It is, however, for the three States to decide whether this situation
should be upheld or replaced by a division and delimitation into three
separate zones.
BRIAND-KELLOGG PACT 1928
The Kellogg-Briand Pact was an agreement signed by a number of nations
in 1928, named after Frank B. Kellogg, United States Secretary of State, and
Aristide Briande, the foreign minister of France. Its intention was to outlaw
the use of war to resolve disputes between signatory states. Its first
signatories, on August 27, 1928, were the United States, France, and
Germany; most other powers signed afterwards. Although the pact was
unsuccessful in preventing the re-militarization that eventually led to World
War II, its intentions were incorporated into the United Nations Charter in the
1940s.
Background
After World War One, many Americans were determined that the United
States should not become involved in another war. Their methods of trying to
achieve this were varied – some pointed to the new World Court and the
existing League of Nations as being the best forums in which to decide
international disagreements, while others believed that disarmament was the
first priority. The latter group tended to speak out in favor of the
1921 Washington Naval Conference and its successors.
A further group, generally given the title of peace advocates, went further
and declared that war itself should be made illegal. Among the most
prominent people to be involved with this faction were James T. Shotwell
and Nicholas Murray Butler, who had close links with the Carnegie
Endowment for International Peace. This organization had been set up by
the renowned industrialist, Andrew Carnegie, in 1910, and had as its aim the
promotion of internationalism.
French Involvement
Butler and Shotwell helped Briand to suggest an agreement on bilateral
terms between France and the United States, with the effect of outlawing the
two nations from going to war with each other. France had suffered greatly in
World War One and remained nervous of neighboring Germany’s future
intentions. As such, the country was eager to make alliances with other
world powers, especially those which would strengthen its somewhat
unevenly spread defenses. In April 1927, Briand published the proposal in
an open letter.
The suggestion was received coolly in Washington by President Coolidge
and by Kellogg, although elements within the U.S. peace movement were
much more enthusiastic. Coolidge and Kellogg were concerned that the
bilateral nature of the proposed pact might be taken to mean that the U.S.
would have to intervene if the security of France ever came under threat.
The way out of this, they decided, was to use the bilateral agreement merely
as a starting point to encourage other nations to sign up to the abolition of
war.
An International Dimension
The notion of extending the pact was warmly received in international circles.
World War One had caused grievous losses in many countries, and there
was a strong distaste for anything that might lead to a repeat. Public opinion
was strongly in favor of outlawing war, while most nations were satisfied by
the pact’s provision that acts of self-defense would be excluded from the
prohibition; wars of aggression would be the only types of military action to
be expressly banned.
International governments also calculated that signing up to the agreement
posed them little real risk. If the pact proved to be a success, then it would be
to the benefit of all parties. If, however, it failed, there would be no legal
consequences. By the early months of 1928, negotiations had expanded to
include all the powers which eventually became part of the first round of
signatories, and the pact took its final form: one clause made war as a matter
of national policy illegal, while the other urged signatories to use peaceful
means to settle disputes.
Fifteen nations attended the initial signing session for the pact, which was
held in Paris on August 27, 1928. These included most of the existing great
powers, including Britain, Germany, Italy, and Japan, as well as the original
authors, France and the United States. The other signatories were drawn
from two groups: one consisting of the British territories such as Canada, the
other made up of smaller European nations like Belgium. The Soviet Union
was a notable exception. The U.S. Senate, having established that the pact
did not prevent the U.S. acting militarily in self-defense, ratified the pact by an
85-1 vote.
The Pact in Action
The first significant test of the Kellogg-Briand pact came in 1931 with the
Mukden Incident, in which Japan invaded Manchuria. Japan was a signatory
to the agreement, but neither the League of Nations nor the United States
was eager to take strong action, partly on account of the ravages many parts
of the world were experiencing in the midst of the Great Depression. Japan
therefore had an almost free hand to behave as it wished in Manchuria, and
this in turn signaled the pact’s essential weakness to other powers.
During the 1930s, the increasingly militaristic nature of the governments of
Germany, Italy, and Austria placed the pact under further pressure. It
became clear that the exemption for self-defense in the agreement’s wording
was vague, and could therefore be interpreted to any party’s best
advantage. Because of its numerous loopholes, the pact was more symbolic
than actual in its anti-war expression, and it was ineffective in preventing the
outbreak of World War Two. Nevertheless, Kellogg was awarded the 1929
Nobel Peace Prize for his work on the pact.
CHARTERS OF THE UNITED NATIONS
Article 2
The Organization and its Members, in pursuit of the Purposes stated in
Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality
of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall
refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members
of the United Nations act in accordance with these Principles so far
as may be necessary for the maintenance of international peace
and security.
7. Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter; but
this principle shall not prejudice the application of enforcement
measures under Chapter Vll.
CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE
PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and
security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may,
before making the recommendations or deciding upon the measures
provided for in Article 39, call upon the parties concerned to comply with
such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or
position of the parties concerned. The Security Council shall duly take
account of failure to comply with such provisional measures.
Article 41
The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may call
upon the Members of the United Nations to apply such measures. These
may include complete or partial interruption of economic relations and of rail,
sea, air, postal, telegraphic, radio, and other means of communication, and
the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such
action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the
United Nations.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defence 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.
DEFINITION OF AGGRESSION GENERAL ASSEMBLY RESOLUTION
3314 (XXIX)
Already under the League of Nations attempts were made to define
aggression. The Special Committee of the Temporary Mixed Commission
for the Reduction of Armaments, for instance, had considered it desirable to
define exactly what constituted an act of aggression in order to provide the
basis for the Council to decide in a given case whether an act of aggression
had been committed. The Commission was, however, unable to draw up
any such definition of aggression and therefore merely indicated the factors
that might provide the elements of a just decision made by the Council
(Commentary on the Definition of a case of Aggression by a Special
Committee of the Temporary Mixed Commission, Records of the Fourth
Assembly, Minutes of the Third Committee, League of Nations O.J. Spec.
Supp. 26, pp. 183-185). At the United Nations Conference on International
Organization, held in San Francisco from 25 April to 26 June 1945, several
delegations proposed that the term “aggression”, contained in section B of
Chapter VIII of the Dumbarton Oaks Proposals (which later became Chapter
VII of the Charter), be defined or explained, but the majority of Committee
III/3, working with these issues, thought that a preliminary definition of the
term went beyond the scope of the Charter and that the modern techniques
of warfare rendered any definition of “aggression” impossible (see Report of
Mr. Paul-Boncour, Rapporteur, on Chapter VIII, Section B, Doc. 881
(English) III/3/46, 10 June 1945, United Nations Conference on International
Organization, Vol. 12,p. 505). During its fifth session, the General Assembly,
in resolution 378 (V) of 17 November 1950, decided to refer to the
International Law Commission a proposal made by the Union of Soviet
Socialist Republics in connection with the agenda item “Duties of States in
the event of the outbreak of hostilities” and all the records of the First
(Political and Security) Committee of the General Assembly dealing with the
question, so that the Commission might take them into consideration and
formulate its conclusions as soon as possible. The Soviet proposal provided
that the General Assembly, “considering it necessary ... to define the concept
of aggression as accurately as possible,” declares, inter alia, that “in an
international conflict that State shall be declared the attacker which first
commits” one of the acts enumerated in the proposal (A/C.1/608). In 1951,
the International Law Commission considered the question whether it should
enumerate aggressive acts or try to draft a definition of aggression in general
terms. It was decided that the only practical course was to aim at a general
and abstract definition of aggression, but the Commission’s efforts to draw
up a general definition were not successful. During the same session, the
matter was reconsidered in connection with the preparation of the draft Code
of Offences against the Peace and Security of Mankind. The Commission
then decided to include among the offences defined in the draft Code any
act of aggression and any threat of aggression (A/1858). The report of the
International Law Commission was on the agenda of the sixth session of the
General Assembly, in 1952, and was submitted for consideration to the Sixth
Committee, where it was discussed from 5 to 22 January 1952. The
Committee adopted a draft resolution, which was submitted to the General
Assembly (A/2087). On the recommendation of the Sixth Committee the
General Assembly adopted resolution 599 (VI) on 31 January 1952. The
General Assembly thereby concluded that it was both “possible and
desirable, with a view to ensuring international peace and security and to
developing international criminal law, to define aggression by reference to
the elements which constitute it”. Furthermore, it decided to include the
question of defining aggression in the agenda of its seventh session and
instructed the Secretary-General to submit to it at that session a report in
which the question of defining aggression should be thoroughly discussed.
The question of defining aggression was accordingly on the agenda of the
General Assembly at its seventh session, in 1952, and was again allocated
to the Sixth Committee for consideration. The Committee, which discussed
the matter from 19 November to 10 December 1952, had before it the report
on the question submitted by the Secretary-General (A/2211). Various
representatives supported the idea of creating a special committee to study
the question further and to present one or more draft definitions to the
General Assembly. The Sixth Committee presented to the General
Assembly a draft resolution providing accordingly (A/2322 and Corr.1), which
the Assembly considered on 20 December 1952. By resolution 688 (VII) of
that date, the General Assembly established a fifteen-member special
committee which was requested to submit to the Assembly at its ninth
session, in 1954, “draft definitions of aggression or draft statements of the
notion of aggression”. The Special Committee met at United Nations
Headquarters from 24 August to 21 September 1953. Several different texts
aimed at defining aggression were presented. The committee, however,
decided unanimously not to put the texts to a vote but to transmit them in its
report (A/2638) to the General Assembly and to Member States for
comments. Comments were received from eleven Member States. The
report of the Special Committee was on the agenda of the General
Assembly at its ninth session, in 1954, and was submitted for consideration
to the Sixth Committee, which discussed it from 14 October to 10 November
1954. Widely different views were expressed on whether it was possible and
desirable to define aggression, on what type of definition should be adopted
and on the draft definitions which had been submitted. No draft resolutions
relating to the substance of the question were, however, put to a vote and
the Sixth Committee instead decided, on 10 November 1954, by the
adoption of a joint draft resolution submitted by Lebanon, Syria and Yemen
(A/C.6/L.337 and Rev.1 and Add.1.), to propose that the General Assembly
again establish a special committee to submit to it at its eleventh session, in
1956, a detailed report followed by a draft definition of aggression, having
regard to the ideas expressed at the ninth session and to the proposals
submitted by delegations. On the recommendation of the Sixth Committee,
the General Assembly adopted resolution 895 (IX) of 4 December 1954, by
which it established the Special Committee. The Special Committee,
composed of nineteen members, met at United Nations Headquarters from
8 October to 9 November 1956. The members of the Special Committee
differed on the possibility and desirability of defining aggression, on the
function and scope of such a definition and on the draft definitions submitted
to it. The Special Committee therefore did not adopt a definition but decided
to transmit its report (A/3574) to the General Assembly, summarizing the
views expressed on the various aspects of the matter, together with the draft
definitions previously submitted to it. Though the question of defining
aggression was included in the provisional agenda of the eleventh session of
the General Assembly, the Assembly decided that this item should be
postponed until the twelfth session to allow Governments sufficient time to
study the report of the Special Committee. During the General Assembly’s
twelfth session, in 1957, the Sixth Committee again discussed the question
of defining aggression, having before it the report of the 1956 Special
Committee. Several draft resolutions were submitted to the Sixth Committee
by Member States, but the Committee finally adopted a merely procedural
draft resolution presented by Chile, Colombia, Cuba, Ecuador, El Salvador,
the Philippines and Venezuela (A/C.3/L.403/Rev.l). On 29 November 1957,
the General Assembly thus adopted resolution 1181 (XII), by which it took
note of the Special Committee’s report, and decided to invite the views of
twenty-two States admitted to the United Nations since 14 December 1955
and to renew the request for comments from other Member States. It also
decided to refer the replies of Governments to a new committee, composed
of the Member States which had served on the General Committee of the
Assembly at its most recent regular session, and entrusted the committee
with the procedural task of studying the replies “for the purpose of
determining when it shall be appropriate for the General Assembly to
consider again the question of defining aggression”. Lastly, it requested “the
Secretary-General to convene the first meeting of the committee prior to the
fourteenth session of the General Assembly”. The said Committee
accordingly met at United Nations Headquarters from 14 to 24 April 1959. It
was decided (A/AC.91/2) that the fourteen replies received did not indicate
any change of attitude and agreed to postpone further consideration of the
question until April 1962, unless an absolute majority of its members
favoured an earlier meeting in the light of new developments. The
Committee asked the SecretaryGeneral to transmit its resolution on the
matter to all Member States and to convene the committee in either of the
two cases specified. As no such request to meet earlier than 1962 was
received, the second session of the Committee began on 2 April 1962 at
United Nations Headquarters in New York. At the end of that session on 9
April, the Committee, on the proposal of Cyprus, adopted a resolution
(A/AC.91/3) providing for a further three-year adjournment of its work, until
April 1965, unless a request for earlier consideration was received from an
absolute majority of the committee's members. By the same resolution, the
Committee also asked the Secretary-General to request States admitted to
the United Nations since its 1959 session to submit their views on the
question of defining aggression. It also asked him to renew his earlier
request for other Member States to submit their views on the matter. The
third session of the Committee took place at the United Nations
Headquarters between 5 and 16 April 1965, as no requests for an earlier
meeting were received. At the conclusion of its work at that session, the
Committee adopted, on the proposal of Cyprus, a resolution (A/AC.91/5)
whereby it decided on a further adjournment until April 1967, again, unless a
majority requested otherwise. By that resolution adopted on 16 April 1965,
the Committee again asked the Secretary-General to request States
admitted to the United Nations since its 1962 session to submit their views
on the question of defining aggression. At the fourth session of the
Committee, held from 3 April to 26 May 1967, three draft resolutions were
introduced, but the Committee took no decision on any of these proposals.
On 22 September 1967, at the General Assembly’s twenty-second session,
the Union of Soviet Socialist Republics requested that an item entitled “Need
to expedite the drafting of a definition of aggression in the light of the present
international situation” be placed on the Assembly’s agenda as an important
and urgent matter (A/6833 and Corr.1). In deciding to place this item on its
agenda, the General Assembly also decided that it should hold discussions
first in plenary meetings of the General Assembly and then, in the light of the
debate and results achieved, in the Sixth Committee. The plenary debate
took place between 28 November and 4 December 1967. The item was
then taken up in the Sixth Committee on 7 December 1967 and resulted in
the adoption, on 14 December of the same, of a draft resolution, submitted
by 26 Members (A/C.6/L.644). On the recommendation of the Sixth
Committee, the General Assembly thus adopted resolution 2330 (XXII) on
18 December 1967, establishing a 35-member Special Committee on the
Question of Defining Aggression which was to “consider all aspects of the
question so that an adequate definition of aggression might be prepared”
and “submit to the General Assembly at its twenty-third session a report
which would reflect all the views expressed and the proposals made.” It was
furthermore decided “to include in the provisional agenda of [the General
Assembly’s] twenty-third session an item entitled ‘Report of the Special
Committee on the Question of Defining Aggression’”. The Special
Committee accordingly met, prior to the twenty-third session of the General
Assembly, from 4 June to 6 July 1968, and adopted a draft resolution
(A/7185/Rev.1) which would have had the Assembly decide, among other
things, that the Special Committee should resume its work as soon as
possible before the end of 1968, so that it could complete its work by
submitting a report containing a generally accepted draft definition of
aggression to the General Assembly at its twenty-third session. The report of
the Special Committee was discussed at the General Assembly’s twenty-
third session, later in 1968, mainly in the Sixth Committee. The Sixth
Committee decided not to recommend that the General Assembly schedule
meetings of the Special Committee during 1968 and instead adopted a draft
resolution (A/C.6/L.733/Rev.1 and Add. 1-3) which would have the Special
Committee resume its work as early as possible in 1969. On 18 December
1968, the General Assembly, acting on the basis of the recommendation of
the Sixth Committee, adopted resolution 2420 (XXIII) on the question of
defining aggression. The Special Committee held six further sessions, one
every year from 1968 to 1974, its mandate having been annually renewed
by the General Assembly (see resolutions 2420 (XXIII) of 18 December
1968, 2549 (XXIV) of 12 December 1969, 2644 (XXV) of 25 November
1970, 2781 (XXVI) of 3 December 1971, 2967 (XXVII) of 14 December 1972
and 3105 (XXVIII) of 12 December 1973). At its seventh and last session
held at United Nations Headquarters in New York from 11 March to 12 April
1974, the Special Committee decided to establish a working group. The
working group established three Contact Groups, to which it referred for
consideration different areas relating to the definition of aggression. After the
working group had received the reports of Contact Groups I, II and III, it
established Contact Group IV, which was instructed to prepare a new
consolidated text of the draft definition of aggression in the light of those
reports. On 11 April 1974, the working group decided to refer the revised
consolidated text prepared by Contact Group IV for final review to a drafting
group. On the same day, the working group considered the text of the draft
definition of aggression as finally reviewed by the drafting group. It took note
of the report of the chairman of the drafting group and decided by consensus
to submit to the Special Committee, for its approval, the text of the draft
definition (A/9619 and Corr.1). It also recommended that the Special
Committee include in its report further explanatory notes on the interpretation
of certain words and phrases in articles 3 and 5 of the text. On 12 April 1974,
the Special Committee adopted by consensus the text of the draft definition
of aggression, as well as the explanatory notes, and recommended to the
General Assembly the adoption of the draft. The report of the Special
Committee on the Question of Defining Aggression, which contained the
draft definition, was taken up by the General Assembly at its twenty-ninth
session, in 1974, and was referred to the Sixth Committee for consideration.
The Sixth Committee considered the report and the text of the definition
between 8 October and 22 November 1974. It made no amendments to the
text of the definition elaborated by the Special Committee, but decided to
include in its report to the General Assembly two statements clarifying the
Sixth Committee’s views on operative paragraphs 3(c) and 3(d) concerning
the qualification of “[t]he blockade of the ports or coasts of a State by the
armed forces of another State” and “[a]n attack by the armed forces of a
State on the land, sea or air forces, or marine and air fleets of another State”
as acts of aggression. On the recommendation of the Sixth Committee, the
General Assembly, on 14 December 1974, adopted without a vote
resolution 3314 (XXIX), to which the Definition of Aggression was annexed.
The General Assembly also called the attention of the Security Council to the
Definition and recommended that the Security Council should, as
appropriate, take account of that Definition as guidance in determining, in
accordance with the Charter, the existence of an act of aggression.
Resolution 1483 (2003) Adopted by the Security Council
at its 4761st meeting, on 22 May 2003 Reconstruction of
IRAQ
The Security Council, Recalling all its previous relevant resolutions,
Reaffirming the sovereignty and territorial integrity of Iraq, Reaffirming also
the importance of the disarmament of Iraqi weapons of mass destruction
and of eventual confirmation of the disarmament of Iraq, Stressing the right
of the Iraqi people freely to determine their own political future and control
their own natural resources, welcoming the commitment of all parties
concerned to support the creation of an environment in which they may do
so as soon as possible, and expressing resolve that the day when Iraqis
govern themselves must come quickly, Encouraging efforts by the people of
Iraq to form a representative government based on the rule of law that
affords equal rights and justice to all Iraqi citizens without regard to ethnicity,
religion, or gender, and, in this connection, recalls resolution 1325 (2000) of
31 October 2000, Welcoming the first steps of the Iraqi people in this regard,
and noting in this connection the 15 April 2003 Nasiriyah statement and the
28 April 2003 Baghdad statement, Resolved that the United Nations should
play a vital role in humanitarian relief, the reconstruction of Iraq, and the
restoration and establishment of national and local institutions for
representative governance, Noting the statement of 12 April 2003 by the
Ministers of Finance and Central Bank Governors of the Group of Seven
Industrialized Nations in which the members recognized the need for a
multilateral effort to help rebuild and develop Iraq and for the need for
assistance from the International Monetary Fund and the World Bank in
these efforts, Welcoming also the resumption of humanitarian assistance
and the continuing efforts of the Secretary-General and the specialized
agencies to provide food and medicine to the people of Iraq, Welcoming the
appointment by the Secretary-General of his Special Adviser on Iraq
Affirming the need for accountability for crimes and atrocities committed by
the previous Iraqi regime, Stressing the need for respect for the
archaeological, historical, cultural, and religious heritage of Iraq, and for the
continued protection of archaeological, historical, cultural, and religious sites,
museums, libraries, and monuments, Noting the letter of 8 May 2003 from
the Permanent Representatives of the United States of America and the
United Kingdom of Great Britain and Northern Ireland to the President of the
Security Council (S/2003/538) and recognizing the specific authorities,
responsibilities, and obligations under applicable international law of these
states as occupying powers under unified command (the “Authority”), Noting
further that other States that are not occupying powers are working now or in
the future may work under the Authority, Welcoming further the willingness
of Member States to contribute to stability and security in Iraq by contributing
personnel, equipment, and other resources under the Authority, Concerned
that many Kuwaitis and Third-State Nationals still are not accounted for since
2 August 1990, Determining that the situation in Iraq, although improved,
continues to constitute a threat to international peace and security, Acting
under Chapter VII of the Charter of the United Nations, 1. Appeals to
Member States and concerned organizations to assist the people of Iraq in
their efforts to reform their institutions and rebuild their country, and to
contribute to conditions of stability and security in Iraq in accordance with this
resolution; 2. Calls upon all Member States in a position to do so to respond
immediately to the humanitarian appeals of the United Nations and other
international organizations for Iraq and to help meet the humanitarian and
other needs of the Iraqi people by providing food, medical supplies, and
resources necessary for reconstruction and rehabilitation of Iraq’s economic
infrastructure; 3. Appeals to Member States to deny safe haven to those
members of the previous Iraqi regime who are alleged to be responsible for
crimes and atrocities and to support actions to bring them to justice; 4. Calls
upon the Authority, consistent with the Charter of the United Nations and
other relevant international law, to promote the welfare of the Iraqi people
through the effective administration of the territory, including in particular
working towards the restoration of conditions of security and stability and the
creation of conditions in which the Iraqi people can freely determine their
own political future; 5. Calls upon all concerned to comply fully with their
obligations under international law including in particular the Geneva
Conventions of 1949 and the Hague Regulations of 1907; 6. Calls upon the
Authority and relevant organizations and individuals to continue efforts to
locate, identify, and repatriate all Kuwaiti and Third-State Nationals or the
remains of those present in Iraq on or after 2 August 1990, as well as the
Kuwaiti archives, that the previous Iraqi regime failed to undertake, and, in
this regard, directs the High-Level Coordinator, in consultation with the
International Committee of the Red Cross and the Tripartite Commission
and with the appropriate support of the people of Iraq and in coordination
with the Authority, to take steps to fulfil his mandate with respect to the fate of
Kuwaiti and Third-State National missing persons and property; 7. Decides
that all Member States shall take appropriate steps to facilitate the safe
return to Iraqi institutions of Iraqi cultural property and other items of
archaeological, historical, cultural, rare scientific, and religious importance
illegally removed from the Iraq National Museum, the National Library, and
other locations in Iraq since the adoption of resolution 661 (1990) of 6 August
1990, including by establishing a prohibition on trade in or transfer of such
items and items with respect to which reasonable suspicion exists that they
have been illegally removed, and calls upon the United Nations Educational,
Scientific, and Cultural Organization, Interpol, and other international
organizations, as appropriate, to assist in the implementation of this
paragraph; 8. Requests the Secretary-General to appoint a Special
Representative for Iraq whose independent responsibilities shall involve
reporting regularly to the Council on his activities under this resolution,
coordinating activities of the United Nations in post-conflict processes in Iraq,
coordinating among United Nations and international agencies engaged in
humanitarian assistance and reconstruction activities in Iraq, and, in
coordination with the Authority, assisting the people of Iraq through: (a)
coordinating humanitarian and reconstruction assistance by United Nations
agencies and between United Nations agencies and non-governmental
organizations; (b) promoting the safe, orderly, and voluntary return of
refugees and displaced persons; (c) working intensively with the Authority,
the people of Iraq, and others concerned to advance efforts to restore and
establish national and local institutions for representative governance,
including by working together to facilitate a process leading to an
internationally recognized, representative government of Iraq; (d) facilitating
the reconstruction of key infrastructure, in cooperation with other international
organizations; (e) promoting economic reconstruction and the conditions for
sustainable development, including through coordination with national and
regional organizations, as appropriate, civil society, donors, and the
international financial institutions; (f) encouraging international efforts to
contribute to basic civilian administration functions; (g) promoting the
protection of human rights; (h) encouraging international efforts to rebuild the
capacity of the Iraqi civilian police force; and (i) encouraging international
efforts to promote legal and judicial reform; 9. Supports the formation, by the
people of Iraq with the help of the Authority and working with the Special
Representative, of an Iraqi interim administration as a transitional
administration run by Iraqis, until an internationally recognized,
representative government is established by the people of Iraq and assumes
the responsibilities of the Authority; 10. Decides that, with the exception of
prohibitions related to the sale or supply to Iraq of arms and related materiel
other than those arms and related materiel required by the Authority to serve
the purposes of this and other related resolutions, all prohibitions related to
trade with Iraq and the provision of financial or economic resources to Iraq
established by resolution 661 (1990) and subsequent relevant resolutions,
including resolution 778 (1992) of 2 October 1992, shall no longer apply; 11.
Reaffirms that Iraq must meet its disarmament obligations, encourages the
United Kingdom of Great Britain and Northern Ireland and the United States
of America to keep the Council informed of their activities in this regard, and
underlines the intention of the Council to revisit the mandates of the United
Nations Monitoring, Verification, and Inspection Commission and the
International Atomic Energy Agency as set forth in resolutions 687 (1991) of
3 April 1991, 1284 (1999) of 17 December 1999, and 1441 (2002) of 8
November 2002; 12. Notes the establishment of a Development Fund for
Iraq to be held by the Central Bank of Iraq and to be audited by independent
public accountants approved by the International Advisory and Monitoring
Board of the Development Fund for Iraq and looks forward to the early
meeting of that International Advisory and Monitoring Board, whose
members shall include duly qualified representatives of the Secretary-
General, of the Managing Director of the International Monetary Fund, of the
Director-General of the Arab Fund for Social and Economic Development,
and of the President of the World Bank; 13. Notes further that the funds in
the Development Fund for Iraq shall be disbursed at the direction of the
Authority, in consultation with the Iraqi interim administration, for the
purposes set out in paragraph 14 below; 14. Underlines that the
Development Fund for Iraq shall be used in a transparent manner to meet
the humanitarian needs of the Iraqi people, for the economic reconstruction
and repair of Iraq’s infrastructure, for the continued disarmament of Iraq, and
for the costs of Iraqi civilian administration, and for other purposes benefiting
the people of Iraq; 15. Calls upon the international financial institutions to
assist the people of Iraq in the reconstruction and development of their
economy and to facilitate assistance by the broader donor community, and
welcomes the readiness of creditors, including those of the Paris Club, to
seek a solution to Iraq’s sovereign debt problems; 16. Requests also that the
Secretary-General, in coordination with the Authority, continue the exercise
of his responsibilities under Security Council resolution 1472 (2003) of 28
March 2003 and 1476 (2003) of 24 April 2003, for a period of six months
following the adoption of this resolution, and terminate within this time period,
in the most cost effective manner, the ongoing operations of the “Oil-for-
Food” Programme (the “Programme”), both at headquarters level and in the
field, transferring responsibility for the administration of any remaining activity
under the Programme to the Authority, including by taking the following
necessary measures: (a) to facilitate as soon as possible the shipment and
authenticated delivery of priority civilian goods as identified by the Secretary-
General and representatives designated by him, in coordination with the
Authority and the Iraqi interim administration, under approved and funded
contracts previously concluded by the previous Government of Iraq, for the
humanitarian relief of the people of Iraq, including, as necessary, negotiating
adjustments in the terms or conditions of these contracts and respective
letters of credit as set forth in paragraph 4 (d) of resolution 1472 (2003); (b) to
review, in light of changed circumstances, in coordination with the Authority
and the Iraqi interim administration, the relative utility of each approved and
funded contract with a view to determining whether such contracts contain
items required to meet the needs of the people of Iraq both now and during
reconstruction, and to postpone action on those contracts determined to be
of questionable utility and the respective letters of credit until an
internationally recognized, representative government of Iraq is in a position
to make its own determination as to whether such contracts shall be fulfilled;
(c) to provide the Security Council within 21 days following the adoption of
this resolution, for the Security Council’s review and consideration, an
estimated operating budget based on funds already set aside in the account
established pursuant to paragraph 8 (d) of resolution 986 (1995) of 14 April
1995, identifying: (i) all known and projected costs to the United Nations
required to ensure the continued functioning of the activities associated with
implementation of the present resolution, including operating and
administrative expenses associated with the relevant United Nations
agencies and programmes responsible for the implementation of the
Programme both at Headquarters and in the field; (ii) all known and
projected costs associated with termination of the Programme; (iii) all known
and projected costs associated with restoring Government of Iraq funds that
were provided by Member States to the Secretary-General as requested in
paragraph 1 of resolution 778 (1992); and (iv) all known and projected costs
associated with the Special Representative and the qualified representative
of the Secretary-General identified to serve on the International Advisory and
Monitoring Board, for the six month time period defined above, following
which these costs shall be borne by the United Nations; (d) to consolidate
into a single fund the accounts established pursuant to paragraphs 8 (a) and
8 (b) of resolution 986 (1995); (e) to fulfil all remaining obligations related to
the termination of the Programme, including negotiating, in the most cost
effective manner, any necessary settlement payments, which shall be made
from the escrow accounts established pursuant to paragraphs 8 (a) and 8 (b)
of resolution 986 (1995), with those parties that previously have entered into
contractual obligations with the Secretary-General under the Programme,
and to determine, in coordination with the Authority and the Iraqi interim
administration, the future status of contracts undertaken by the United
Nations and related United Nations agencies under the accounts established
pursuant to paragraphs 8 (b) and 8 (d) of resolution 986 (1995); (f) to provide
the Security Council, 30 days prior to the termination of the Programme, with
a comprehensive strategy developed in close coordination with the Authority
and the Iraqi interim administration that would lead to the delivery of all
relevant documentation and the transfer of all operational responsibility of the
Programme to the Authority; 17. Requests further that the Secretary-General
transfer as soon as possible to the Development Fund for Iraq 1 billion
United States dollars from unencumbered funds in the accounts established
pursuant to paragraphs 8 (a) and 8 (b) of resolution 986 (1995), restore
Government of Iraq funds that were provided by Member States to the
Secretary-General as requested in paragraph 1 of resolution 778 (1992),
and decides that, after deducting all relevant United Nations expenses
associated with the shipment of authorized contracts and costs to the
Programme outlined in paragraph 16 (c) above, including residual
obligations, all surplus funds in the escrow accounts established pursuant to
paragraphs 8 (a), 8 (b), 8 (d), and 8 (f) of resolution 986 (1995) shall be
transferred at the earliest possible time to the Development Fund for Iraq; 18.
Decides to terminate effective on the adoption of this resolution the functions
related to the observation and monitoring activities undertaken by the
Secretary-General under the Programme, including the monitoring of the
export of petroleum and petroleum products from Iraq; 19. Decides to
terminate the Committee established pursuant to paragraph 6 of resolution
661 (1990) at the conclusion of the six month period called for in paragraph
16 above and further decides that the Committee shall identify individuals
and entities referred to in paragraph 23 below; 20. Decides that all export
sales of petroleum, petroleum products, and natural gas from Iraq following
the date of the adoption of this resolution shall be made consistent with
prevailing international market best practices, to be audited by independent
public accountants reporting to the International Advisory and Monitoring
Board referred to in paragraph 12 above in order to ensure transparency,
and decides further that, except as provided in paragraph 21 below, all
proceeds from such sales shall be deposited into the Development Fund for
Iraq until such time as an internationally recognized, representative
government of Iraq is properly constituted; 21. Decides further that 5 per cent
of the proceeds referred to in paragraph 20 above shall be deposited into the
Compensation Fund established in accordance with resolution 687 (1991)
and subsequent relevant resolutions and that, unless an internationally
recognized, representative government of Iraq and the Governing Council of
the United Nations Compensation Commission, in the exercise of its
authority over methods of ensuring that payments are made into the
Compensation Fund, decide otherwise, this requirement shall be binding on
a properly constituted, internationally recognized, representative government
of Iraq and any successor thereto; 22. Noting the relevance of the
establishment of an internationally recognized, representative government of
Iraq and the desirability of prompt completion of the restructuring of Iraq’s
debt as referred to in paragraph 15 above, further decides that, until
December 31, 2007, unless the Council decides otherwise, petroleum,
petroleum products, and natural gas originating in Iraq shall be immune, until
title passes to the initial purchaser from legal proceedings against them and
not be subject to any form of attachment, garnishment, or execution, and
that all States shall take any steps that may be necessary under their
respective domestic legal systems to assure this protection, and that
proceeds and obligations arising from sales thereof, as well as the
Development Fund for Iraq, shall enjoy privileges and immunities equivalent
to those enjoyed by the United Nations except that the abovementioned
privileges and immunities will not apply with respect to any legal proceeding
in which recourse to such proceeds or obligations is necessary to satisfy
liability for damages assessed in connection with an ecological accident,
including an oil spill, that occurs after the date of adoption of this resolution;
23. Decides that all Member States in which there are: (a) funds or other
financial assets or economic resources of the previous Government of Iraq
or its state bodies, corporations, or agencies, located outside Iraq as of the
date of this resolution, or (b) funds or other financial assets or economic
resources that have been removed from Iraq, or acquired, by Saddam
Hussein or other senior officials of the former Iraqi regime and their
immediate family members, including entities owned or controlled, directly or
indirectly, by them or by persons acting on their behalf or at their direction,
shall freeze without delay those funds or other financial assets or economic
resources and, unless these funds or other financial assets or economic
resources are themselves the subject of a prior judicial, administrative, or
arbitral lien or judgement, immediately shall cause their transfer to the
Development Fund for Iraq, it being understood that, unless otherwise
addressed, claims made by private individuals or non-government entities on
those transferred funds or other financial assets may be presented to the
internationally recognized, representative government of Iraq; and decides
further that all such funds or other financial assets or economic resources
shall enjoy the same privileges, immunities, and protections as provided
under paragraph 22; 24. Requests the Secretary-General to report to the
Council at regular intervals on the work of the Special Representative with
respect to the implementation of this resolution and on the work of the
International Advisory and Monitoring Board and encourages the United
Kingdom of Great Britain and Northern Ireland and the United States of
America to inform the Council at regular intervals of their efforts under this
resolution; 25. Decides to review the implementation of this resolution within
twelve months of adoption and to consider further steps that might be
necessary; 26. Calls upon Member States and international and regional
organizations to contribute to the implementation of this resolution; 27.
Decides to remain seized of this matter.
GENERAL ASSEMBLY RESOLUTION 2131 (XX) OF 21 DECEMBER
1965 DECLARATION ON THE INADMISSIBILITY OF INTERVENTION IN
THE DOMESTIC AFFAIRS OF STATES AND THE PROTECTION OF
THEIR INDEPENDENCE AND SOVEREIGNTY
By Edward McWhinney, Q.C. Professor of International Law
1. Resolution 2131 (XX) in its historical (political-legal) context General
Assembly resolution 2131 (XX) entitled Declaration on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty was adopted on 21 December 1965, by a
vote of 109 votes to none, with one abstention. In the preamble and its
opening paragraph, the resolution cites the “gravity of the international
situation and the increasing threat to universal peace due to armed
intervention and other direct or indirect forms of interference threatening the
sovereign personality and the political independence of States.” The ties of
consanguinity with that earlier historic act of the General Assembly, – the
Declaration on the Granting of Independence to Colonial Countries and
Peoples, – resolution 1514 (XV) of 14 December 1960, adopted by a vote of
89 to none, with, however, nine abstentions are clear enough (see
introductory note on General Assembly resolution 1514 (XV)). After invoking
Article 1, paragraph 2, of the Charter of the United Nations and the principles
of equal rights and self-determination of peoples as the foundation of
“friendly relations among nations”, resolution 2131 (XX) goes on, in its
preamble, expressly to cite resolution 1514 (XV) on States’ “inalienable right
to complete freedom, the exercise of their sovereignty and the integrity of
their national territory and ... [to] freely determine their political status and
freely pursue their economic, social and cultural development.” Resolution
2131 (XX) of 1965, in historical terms, reflects the remarkable acceleration of
the decolonization process in the few years since the adoption of resolution
1514 (XV). Eighteen new States, all but one of these (Mongolia) “colonies” in
the classical international law sense, had been admitted to the United
Nations in the meantime. With their new numbers, the informal coalitions or
associations of the neutral States had taken on an extra political coherence
and certainly tactical and often strategical legal sophistication. These
coalitions, sometimes already existing and sometimes new, included the
Organization of American States, the League of Arab States, and the
Organization of African Unity as formal organizations. Even more effective
politically, perhaps, since they were open always to further accretions to their
ranks, were rather more informal arrangements such as the Bandung
Conference, the Group of 77, and the Non-Aligned Countries as such. In
some ways in politically realistic reaction to all this, the two political and
military superpowers, the Soviet Union and the United States, and their
supporting blocs from the Cold War era, had entered into their own era of
peaceful coexistence which would progressively ripen into a highly
pragmatic, problem-oriented East-West détente based on mutuality and
reciprocity of interest in concrete areas like peace and security, nuclear
testing and armaments control, in ways not always coinciding with the policy
imperatives of the emerging third world majorities in the United Nations and
other international arenas. The accommodation or compromising of these
contradictions in legal terms can be found – behind the displays of
unanimous voting on the formal accords – in the arts of diplomatic-legal
drafting: the resort to succinct, lapidarian formulations that facilitate normative
ambiguity as to their later interpretation or concrete application, and also the
inclusion of “saving” clauses, usually at the tail-end of the formal declarations
themselves. On the part of the neutral, non-aligned States who constituted
the moving, pro-active elements in support of resolution 2131 (XX), there
would have to be some consensus, nonetheless, as to the future application
in concrete cases of the highly abstract principles contained in the text. One
such area of concern would certainly be the well-evidenced practice of
unilateral intervention, by armed force. A not less serious and more general
concern would stem from modes of intervention other than military, of a
financial or economic character not yet adequately defined in or fully reached
by positive law – economic and financial coercion or extreme trade
pressures or boycotts, and also covert, or sometimes direct and open,
encouragement or incitement for dissident, political breakaway groups in a
particular State or region.
2. Legislative drafting and negotiation within the General Assembly The
proposal for the resolution was launched by the Soviet Union in a letter to the
President of the General Assembly on 24 September 1965, and was
followed up with a Soviet draft resolution submitted to the First Committee, at
the twentieth session of the General Assembly on 3 December 1965. The
Soviet initiative was then immediately responded to by the United States with
its own list of amendments, and then by the United Kingdom. The politically
decisive initiatives, however, are to be found in a joint draft resolution tabled
by Egypt on behalf of twenty-six Member States, followed by another joint
draft resolution tabled by Colombia on behalf of eighteen Member States,
with India joining in. Within an extraordinarily rapid sequence of eighteen
days, from the first tabling of the Soviet draft resolution and the examination
and disposal of proposals for amendment, resolution 2131 (XX) was
adopted by the General Assembly. The brevity and succinctness of its verbal
formulation, as a factor in inducing a consensus has already been
commented on. There is enough generality in the text, in the adumbration of
highly abstract primary principles at the expense of detailed secondary
principles and rules, to allow for some give-and-take in concrete application
in future cases, with the built in final safety valve in paragraph 8 which
expressly safeguards Chapters VI, VII and VIII of the Charter of the United
Nations relating to the maintenance of international peace and security, but
without offering any factual indicia for their application in any future conflict
situations.
3. Core legal postulates of resolution 2131 (XX) In the core legal principles
adumbrated in the text of resolution 2131 (XX), there is apparent operational
synthesis between two historically different, but presently converging,
streams of legal doctrinal thinking, namely, between the legal imperatives of
the contemporary post-decolonization succession States, of the late 1950s
and the early 1960s, and the older (late nineteenth and early twentieth
centuries) classical legal doctrines of the Latin American States – technically
refined under the rubric of the Calvo and Drago doctrines – which, in their
own origins, had also been products of decolonisation and independence, a
full century and a quarter earlier. It should be recalled that, already at the
founding conference of the United Nations at San Francisco in 1945, as a
result of their common historical experiences, Latin American delegates
presented a common front which became the driving force leading up to the
adoption of Article 2, paragraph 7, of the Charter, prohibiting interventions by
the United Nations in matters essentially within the domestic jurisdiction of
any State. Article 2, paragraph 7, of the Charter of the United Nations thus
became the master-clause, in legal terms, on non-intervention as imperative
legal principle of contemporary international law, though containing its own
in-built antimony that it should not prejudice the application of enforcement
measures under Chapter VII of the Charter. Of particular note are the
following paragraphs of resolution 2131 (XX):
“1. No State has the right to intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any State. Consequently,
armed intervention and all other forms of interference or attempted threats
against the personality of the State or against its political, economic and
cultural elements, are condemned.
2. No State may use or encourage the use of economic, political or any other
type of measures to coerce another State in order to obtain from it the
subordination of the exercise of its sovereign rights or to secure from it
advantages of any kind. Also, no State shall organize, assist, foment,
finance, incite or tolerate subversive, terrorist, or armed activities directed
towards the violent overthrow of the regime of another State, or interfere in
civil strife in another State.
3. The use of force to deprive peoples of their national identity constitutes a
violation of their inalienable rights and of the principle of non-intervention. […]
5. Every State has an inalienable right to choose its political, economic,
social and cultural systems, without interference in any form by another
State.
6. All States shall respect the right of self-determination and independence of
peoples and nations, to be freely expressed without any foreign pressure,
and with absolute respect for human rights and fundamental freedoms.
Consequently, all States shall contribute to the complete elimination of racial
discrimination and colonialism in all its forms and manifestations.”
Paragraph 7 stipulates that the term “State” covers “both individual States
and groups of States”, presumably as an admonition addressed principally to
would-be intervenor (military and/or economic) States, whether acting
unilaterally or in concert.
4. Contribution of Resolution 2131 (XX) to the Elaboration of “New”
International Law Thinking and Rules on the Non-Use of Force and on Non-
Intervention.
It was already clear from the first tabling of the draft that was to become
resolution 2131 (XX), at the beginning of December 1965, and its fast-track
adoption by the General Assembly a scant eighteen days later by
unanimous vote, that the political and legal battle on behalf of decolonization
and independence was already won, and that what would be involved from
now on would be a political and diplomatic cleaning-up process, with
attendant pressures to ensure complete effectuation with all deliberate
speed of the process of decolonization. Among the more spectacular
successes of this post-resolution 2131 (XX) operation was the achievement
of decolonization and independence for the former German colony of South
West Africa that had been converted into a League of Nations Mandated
Territory under the terms of the 1919 Treaty of Versailles after World War I,
but entrusted to the then white-minority ruled Union of South Africa by the
League of Nations. With colonialism on the way out and increasingly a
matter of past history, the principle of non-intervention as contained in
resolution 2131 (XX) began nonetheless to take on a life of its own and to
operate in new directions. In 1979, the General Assembly decided to include
an item entitled “The situation in Kampuchea” in its agenda, with a view to
address, inter alia, the issue of Viet Nam’s intervention in the country, in
December 1978, and remained seized of the matter until 1989, when Viet
Nam withdrew its troops. Throughout that period, the General Assembly
consistently called for immediate withdrawal of all foreign forces from
Kampuchea, with reference to the non-intervention and non-interference
principles, but without explicit reference to resolution 2131 (XX). In the mid-
1980s, the International Court of Justice, seized of the issue by the
Nicaraguan Government which had complained of active military, logistical
and other support by the United States to Contras rebel groups within
Nicaraguan territories and to other actions including the United States’
mining of Nicaraguan ports and coastal waters, referred in its Judgement,
inter alia, to resolution 2131 (XX) (Military and Paramilitary Activities in and
Against Nicaragua, I.C.J. Reports, 1986, p. 107, para. 203). The new life of
resolution 2131 (XX) as part of a general scientific and legal reexamination
and restatement, in more contemporary terms than the old classical
international law, of the right to self-determination, political and economic,
free from unilateral interventions or threats thereof by other States or groups
of States was perhaps demonstrated in the political aftermath to the NATO
armed intervention against the former Yugoslavia in early 1999, without any
prior enabling legal resolution from the Security Council. To respond to the
continuing legal debate as to the licitness, in international law terms, of the
NATO operation against the former Yugoslavia in 1999, the Institut de Droit
international established in the same year a special commission (later
reconstituted as a quadripartite entity with four separate sub-commissions) to
report on contemporary legal issues involving self-defence, humanitarian
intervention, military intervention by invitation and authorization of the use of
force by the United Nations. While the Institut de Droit international has not to
date issued any final legal conclusions and recommendations, its initiative
from 1999 onwards to achieve a contemporary updating or restatement of
the international law on the interdiction of the use of force under Chapter VII
of the Charter of the United Nations and on non-intervention had produced
one very clear result at least, eight years later. At its 2007 session, the
President of the Institut de Droit international noted that it had been unable to
agree to accepting “the lawfulness of military actions which have not been
authorised by the United Nations but which purport to have been taken to
end genocide, large-scale crimes against humanity, or large scale crimes”
(Annuaire de l’Institut de Droit international, vol. 72, session de Santiago du
Chili, 2007, pp. 365-366). In a separate development, the African Union has
recognized a role for international protection of humanitarian interests within
individual States (Chapter VIII of the Charter of the United Nations). In fact,
article 4 of the Constitutive Act of the African Union of 11 July 2000 expressly
establishes the right of the organization to intervene in any of its own
member States pursuant to a decision of the Assembly of the African Union
in respect of grave circumstances – war crimes, genocide, and crimes
against humanity. As was noted by Mr. Abdulqawi A. Yusuf, in the debates
of the Institut de Droit international in 2007, such a development at the
regional level, is particularly encouraging for the future, since it is now
occurring in Africa – “a continent which had always been one of the most
vociferous critics of humanitarian intervention due to the abuses associated
with it in the past.”