INTERNATIONAL LAW AND THE USE OF FORCE BY STATES BY IAN BROWNLIE, Q.C., D.C.L., F.B.A. CHICHELE PROFESSOR OF PUBLIC INTERNATIONAL LAW IN THE UNIVERSITY OF OXFORD; FELLOW OF ALL SOULS COLLEGE, OXFORD; ASSOCIB DE L'INSTITUT DE DROIT INTERNATIONAL OXFORD AT THE CLARENDON PRESS
TABLE OF PREFACE ABBREVIATIONS AND PERIODICALS REFERRED TO IN TEXT AND BIBLIOGRAPHY V XXi PART I AN HISTORICAL EXPOSITION OF THE LEGAL REGULATION OF THE USE OF FORCE BY STATES INTRODUCTION I. THE HISTORICAL EXPERIENCE PRIOR TO 1815 3 I. Some Ancient Civilizations 3 z. Early Christian Doctrine 5 3 The Scholastics 6 f. Writers of the Fourteenth and Fifteenth Centuries and their Reflection of Changes in European Society 7 5 Probabilism and the Development of the European State System and Balance of Power, rsoo-1648 ro 6. Europe after Westphalia, r648-r8i5: Positivism and the Balance ofpower II. THE CUSTOMARY LAW OF THE PERIOD 1815-1914. SOME NEW DEVELOPMENTS: ARBITRATION AND TREATIES FOR PACIFIC SETTLEMENT 19 I. Major Features of State Practice in the Period I 815 to 1914 19 2. The State of War Doctrine z6 3 Hostile Measures not Constituting War in the Formal Sense: Some Instances of State Practice, 1798-1920 28 4 Conclusions on the Definition and Significance of a 'State of War' in the Period I 798.to I 920 38 5 Legal Justifications for the Use of Force in the Classical Law: Customary Rules of the Nineteenth Century. 40 6. The Practice of States in Relation to Intervention 44 7 Hostile Measures Short of War 45 8. Justifications for Resort to Force: Some Conclusions on the State of the Customary Law as it had developed by r 920 46 9 The Close of the Period I8I5 to I9I4: Retrospect and Prospect 49 If
xu III. THE FIRST WORLD WAR. THE VERSAILLES AND OTHER TREATIES: WAR GUILT AND REPARATIONS IV. THE COVENANT OF THE LEAGUE OF NATIONS r. Its Genesis and Main Functions 2. The 'Gaps' in the Covenant 3 Article roof the Covenant V. ILLEGAL WAR, AGGRESSIVE WAR, AND AGGRESSION: THE MAJOR LEGAL DEVELOPMENTS OF THE PERIOD 1920 TO 1945 I. Introduction 2. The Draft TreatY of Mutual Assistance 5I 55 55 59 62 3. The Geneva Protocol, r 924 69 4 'T'he Locarno Treaties of rgzs 70 5 Resolutions of the League Assembly in 1925 and 1927 71 6. Resolution of the Sixth International Conference of American States, 1928 73 7 The General Treaty for the Renunciation of War, signed on 27 August 1928: Its Role in State Practice 74 8. Origins and Interpretation of the General Treaty So 9 The Chaco Declaration of I932 92 IO. Further Pronouncements by Governments and Statesmen 93 I I. The Anti-War Treaty ofnon-aggression and Conciliation, signed at Rio de Janeiro, 10 October 1933 95 I 2. Seventh International Conference of American States, Montevideo, I933 96 r 3 Inter-American Conference for the Maintenance of Peace, Buenos Aires, 1936 97 14. Some Statements of Principle in 1937 99 I 5 Eighth International Conference of American States, Lima, 1938 101 16. Treaties of Friendship and Security, of Guarantee and Neutrality, and of Non-Aggression, I925-39 ror I 7. State Practice in the Period I 938-42 105 I 8. The Second World War and a Retrospect. An Evaluation of the State Practice of the Period 1920-45: the Formation of a Customary Rule I07 VI. NEW FOUNDATIONS: THE UNITED NATIONS CHARTER AND THE BASES OF THE LAW AFTER 1945 I. Introduction r 12 2. The United Nations Charter I 12 66 66 68 rrz J. 4 5. 6. Possible Sources of Weakness in the Legal Regime Other Legal Instruments Relating to the Use of Force of the 1)eriod since 1945 The Five Principles of Peaceful Co-Existence Some Characteristics of the Legal Developments since 1945 APPENDIX r. Instruments affirming the Five Principles of Peaceful Co-Existence I2J APPENDIX n. Reaffirmation of, and adherence to, the Principles of the United Nations Charter and in particular the obligations of Article 2, paragraph 4, of the Charter I 27 PART II THE CONTENT OF THE ILLEGALITY OF THE USE OF FORCE: THE DELICTUAL AND CRIMINAL ASPECTS xiii IIJ rr6 I I7 I20 INTRODUCTION I 30 VII. USE OF FORCE AS A STATE DELICT: THE OBLIGATION TO MAKE REPARATION r. Introduction I 33 2. Armistice Conditions and Peace Treaties, I9I8-2I 135 3 The Work of the League of Nations: some draft treaties and the settlement of the Greco-Bulgarian Dispute of I 92 5 I 40 4 Peace Treaties after the Second World War 142 5 Claims Arising from the Suez Operations, 1956 145 6. Frontier, Aerial, and Other Incidents: Intentional or Negligent Infliction of Harm by Armed Forces I 46 7 Conclusions 147 VIII. CRIMINAL RESPONSIBILITY FOR THE UNLAWFUL U.SE OF FORCE IN INTER-STATE RELATIONS r. The Concept of Criminal Responsibility of States I 50 2. The Concept of the Criminal Liability of Individuals responsible for the Unlawful use of force in Inter-State Relations I 54 3 Draft Treaties, League Resolutions, and St.,._te Practice I 56 4 Internal Law and the Pact of Paris, I 57 5 Provisions of Iviunicipal Law Concerning Acts likely to cause War I 58 6. The \Vars of Aggression 1939-45: Allied Declarations on the Punishment of War Criminals and Other Opinions 159 7. The International Conference on J'VTilitary Trials, London, z6 June-8 August 19+5 161 8. Theoretical Problems 164 IJJ rso
xiv IX. CHARGES OF CRIMES AGAINST PEACE ARISING OUT OF THE SECOND WORLD WAR I. The Trial of German Major War Criminals 167 2. The Arguments of Dr. Jahrreiss eta!. 169 3. The Gpinion of the Tribunal on the Legal Basis of the Counts Charging Crimes against Peace 170 4 The Trial of Japanese Major War Criminals 171 S Trials held under Control Council Law No. 10 I74 6. Application in National Jurisdictions of the Concept of Crimes Against Peace I 75 7. Provisions Relating to Crimes against Peace m the Peace Treaties I 82 8. Crimes against Peace in Relation to Legislation on Treason, Collaboration, and Analogous Offences I 84-9 Evidence that Crimes against Peace as Defined in the Charters of the International Military Tribunals at Nuremberg and Tokyo have been Accepted as a PartofPositiveLawsince I946 I 85 10. Affirmation of Article 6 of the Charter annexed to the London Agreement by United Nations Organs I 88 I I. General Acceptance as Law of the Principles of the Nuremberg Charter 191 X. CRIMES AGAINST PEACE: DEFINITION AND BASES OF RESPONSIBILITY 195 r. Introduction. Article 6, paragraph (a) of the Charter of the International Military Tribunal at Nuremberg I95 2. Preparation of Aggressive War I96 3 Participation in Planning Specific Wars of Aggression 197 4 Remaining in High Office with Knowledge of Plans for Wars of Aggression 198 5 Liability for Waging Aggressive War on Count Two 199 6. Formulation and Execution of Occupation Policy 200 7. Initiation of War 200 8. Count One: the Conspiracy Count 200 9 The Judgment of the International Military Tribunal for the Far East 201 Jo. Decisions oftribunals exercising jurisdiction by virtue of Control Council Law No. IO 203 1 I. The Work of the International Law Commission and the Sixth Committee of the General Assembly 206 I 2. Elements of Confusion 207 I 3 Acts directed against other States and the motives for such acts: criteria of responsibility 207 r67 I I PART Ill LEGAL JUSTIFICATIONS FOR THE USE OF FORCE IN THE MODERN LAW INTRODUCTION 2 I 4 XI. PROBLEMS OF TRANSITION: THE LEGAL REGIME IN THE PERIOD 1920 TO 1930 216 1. The Nature of the Customary Law Recalled 2 I6 2. The Covenant of the League of Nations, the Kellogg-Briand Pact, and Problems of Transition 3 The Legality of Reprisals and Pacific Blockade 2I9 4 The Question of Intervention 224 5 The Porter Convention 225 6. Stock Justifications appearing in Treaties in the Period 1920 to 1930 226 XII. THE RIGHT OF LEGITIMATE DEFENCE: DOCTRINE AND STATE PRACTICE IN"THE PERIOD 1920TO 1939 1. Doctrine and State Practice of the Period I 920 to I 929 2. The Kellogg-Briand Pact and the Reservations to it, in particular those relating to the Right of Legitimate Defence or Self Defence 3 Determination of Necessity for Legitimate Defence 4 The Scope of the Reservation of the Right of Legitimate Defence 5. The British Reservation 6. The Monroe Doctrine 7 The Obligations of the Covenant 8. The Locarno Treaties 9 State Practice and Doctrine in the Period I930 to 1939 XIII. THE RIGHT OF SELF-DEFENCE IN THE PERIOD AFTER THE SECOND WORLD WAR I. Introduction 2. The Customary Law. The Question of the Forcible Protection of Rights 3 The Right of Anticipatory Self-Defence in the Customary Law 4 Some Reservations on the Customary Law in Respect of Anticipatory Self-Defence 5. The Proportionality Rule 6. The Right of Self~ Defence under the Charter of the United Nations XV 2I7 23J 2J! 2J5 237 2 39 24)- 245 246 247 247 25! 251 25! 257 258 26r f-flih n acy ~lnflf l~s!j V:):cu.ornn!I ~""""'...r~'""''"'""""""~-.-
xvi 7 'Against the territorial integrity or political independence of any State' 265 8. 'Or in any other manner inconsistent with the Purposes of the United Nations' 268 9 Article 2, paragraph 4-, Article 5 I, and the Right of Self-Defence in the Customary Law 269!0. The Purpose and Meaning of Article 5 I 270 II. The Relationship of Article 5 r and the Right of Self-Defence in Customary Law 272 I 2. Does Article 5 I Permit Anticipatory Self-Defence? 275 I 3 What is an Armed Attack? 278 14. The Relations of the Customary Law and the United Nations Charter 2 79. Action authorized by a Competent International Organ 333 3 4- Action against Ex-Enemy States: the Charter, Articles 53 and I07 336 XV!II. OTHER JUSTIFICATIONS FOR RESORT TO FORCE OF DOUBTFUL VALIDITY 338 r. Humanitarian Intervention 338 z. Arnied Intervention to Enforce Provisions of a Peace Treaty 342 3 International Police Action 34-4- 4 Veto in the Security Council 345 5 Chronic Disorder on the Territory of a Neighbouring State 346 6. Force to Execute an Arbitral Award or Judgment 347 7 Miscellaneous Justifications 349 xvii ;' XIV. SOME PROBLEMS RELATING TO SELF-HELP IN THE MODERN LAW I. Introduction z8r 2. The Exercise of Legal Rights and the Decision of the International Court of Justice in the Cotfu Channel Case 283 3 The Protection of the Lives and Property ofnationals:.the Nineteenth-Century Doctrine and Practice 289 4- The Protection of Nationals in the Period since I920 292 5. (The Status of this Right of Intervention in the Modern Law 298 6. Self-Defence on the High Seas: Claims to Jurisdiction on the Basis of Self-Defence 301 7. The Particular Problems of Self-Defence on the High Seas 305 XV. FORCIBLE ANTICIPATION OF A BREACH OF NEU- TRALITY 309 I. Doctrine and State Practice 2. Breaches pf the Rules of Maritime Neutrality JIZ 3 Some Conclusions JI3 XVI. THE CONSENT OF STATES I. Problems of a General Character 3I7 2. Treaties Conferring a Right to Intervene 318 3 Intervention in Civil yy"ar at the Request or with Consent of the Legitimate Government 321 XVII. INTERNATIONAL ACTION 328 I. Collective Defence and Defence of Other States 328 2. Tlle Concept of a War of Sanction 332 28I JI7 INTRODUCTION PART IV PROBLEMS OF A GENERAL NATURE RELATING TO THE USE OF FORCE XIX. THE QUESTION OF DEFINING AGGRESSION 1. Historical Origins and Development 3 5 1 2. Attempts to Define Aggression 35 2 3 Is a Definition Possible or Desirable? 355 APPENDIX 1. A Selection of Terms of Art in Treaties of Defensive Alliance, Mutual Assistance, or Security, I920-54 359 APPENDIX n. Text of the Conventions for the Definition of Aggression signed in London, 3, 4, and 5 July I933 36o XX. THE USE OR THREAT OF FORCE AND THE CONCEPT OF ARMED ATTACK I. The Use of Force 2. The Threat of Force 3 The Concept of Armed Attack XXI. SOME PROBLEMS OF RESPONSIBILITY Complicity in Breaches of the Peace: Indirect Aggression 1 2. Problems Relating to Self-Defence 3 Special Cases of Necessity 4 Animus Aggression is and Other Questions 3SI
xviii XXII. THE AUTHORS OF AND THE ENTITIES PROTECTED FROM UNLAWFUL RESORT TO FORCE 379 I. The Problem Stated 379 2. Authors of Aggression 379 3. Entities Protected 38o 4-- State Territory 382 XXIII. THE LEGAL SIGNIFICANCE OF THE STATE OF WAR IN THE PERIOD SINCE 1920 AND THE PROBLEM OF DEFINING WAR I. The 'State of War' Doctrine in the Period 6f the League and the United Nations 2. The Legal Significance of a 'State of War' in the Modern Law 3 The Value of a Definition of War 384 384 393 398 OFFICIAL SOURCES REFERRED TO TABLE OF DOCUMENTS DOCUMENTS OF THE INTERNATIONAL LAW COMMISSION TABLE OF NATIONAL LEGISLATION GENERAL STUDIES OF THE COVENANT OF THE LEAGUE OF NATIONS GENERAL STUDIES OF THE CHARTER OF THE UNITED NATIONS BIBLIOGRAPHY OF BOOKS AND ARTICLES ON THE LAW RELATING TO THE USE OF FORCE BY STATES SUBJECT INDEX xix 46r 462 467 469 473 474 475 52! XXIV. THE ILLEGALITY OF THE USE OF FORCE: THE QUESTION OF COROLLARIES IN THE LAW r. The Nature of the Problem and the Scope of Inquiry 2. The Law of Neutrality 3. The Effect of Duress on the Validity of Treaties 4 The Application of the Laws ofy\l ar in a Conflictwith an Aggressor 5. Some Further Suggestions XXV. THE PRINCIPLE OF NON-RECOGNITION I. Genesis of the Principle 2. State Practice and Non-recognition 3 Is there a Legal Duty of Non-recognition of the Validity of Acquisition of Territory by Unlawful Use of Force? 4 The Limitations of the Principle of Non-recognition 5. The Problem of Prescription 6. Conclusions XXVI. CONCLUSIONS TABLE OF CASES (ACCORDING TO COUNTRIES AND COURTS AND TRIBUNALS, AND WITH REFERENCES TO LAW REPORTS OR OTHER SOURCES) TABLE OF CASES (ALPHABETICAL) TABLE OF TREATIES A, MULTILATERAL TREATIES B. BILATERAL TREATIES GENERAL SOURCES OF STATE PRACTICE f02 f02 foz 4 4 406 408 4-10 f!o 4'3 fi8 4 1 9 422 422 424 437 446 45 45 454 46o