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Hopes and Loopholes in the 1974 Definition of Aggression *

Published online by Cambridge University Press:  27 February 2017

Julius Stone
Julius Stone*
Affiliation:
University of New South Wales, University of California, Hastings College of Law.
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Extract

Central to claims made for the long “Consensus Definition” of aggression now embodied in UN General Assembly Resolution 3314, is that it has “accomplished its main purpose of depriving a potential aggressor of the possibility of using juridical loopholes and pretexts to unleash aggression.” To this Soviet theme the Senegalese representative added the prophecy that “there would no longer be any loopholes in international law of which an aggressor could take advantage.”

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 2 , April 1977 , pp. 224 - 246
Copyright
Copyright © The American Society of International Law 1977

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Footnotes

*

This article is based in part on a forthcoming book by the author entitled Conflict through Consensus, United Nations Approaches to Aggression, to be published by Johns Hopkins University Press in summer 1977. The author wishes to express his appreciation for the cooperation of the Press in relation to the publication of this article.

References

1 G. A. Res. 3314 (XXIX), Dec. 14, 1974. 29 GAOR, Supp. (No. 31) 142, UN Doc. A/9631 (1974), 69 AJIL 480 (1975).

2 Representative of the USSR, UN Doc. A/C.6/SR.1472, at 2 (1974).

3 UN Doc. A/C.6/SR.1486, at 7 (1974).

4 For a fuller discussion of these aspects, see Stone, , Conflict Through Consensus, United Nations Approaches to Aggression, Ch. 3 (forthcoming, 1977)Google Scholar (hereinafter cited as Stone, Conflict). The main provisions of the definition expressly deferring to the UN Charter include paragraphs 2 and 4 of the Preamble and Articles 2, 4, and 6. See Section X infra for discussion.

5 Report of the Special Committee on the Question of Defining Aggression, 28 GAOR, Supp. (No. 19) 7, UN Doc. A/9019 (1973) (hereinafter cited as 1973 Report).

6 Id. 9.

7 Id. 11.

8 Id. 15.

9 On the even less sanguine mood in the preceding year, see Ferencz, , Defining Aggression, 56 AJIL 491, 496, 504 ff. (1972)Google Scholar. Cf. Stone, Conflict, supra note 4, Ch. 2, Sect. II.

10 Report of the Special Committee on the Question of Defining Aggression, 29 GAOR, Supp. (No. 19) 10, UN Doc. A/9619 (1974) (hereinafter cited as 1974 Report).

11 Stone, Conflict, supra note 4, Ch. 2, Sect. II.

12 1973 Report, supra note 5, at 23. There is a deceptive implied reference here to this phrase as used in the prohibition contained in Article 2(4) of the Charter; of course, it is there not forbidden simpliciter but only as used “against the territorial integrity or political independence” etc. See Stone, , Of Law and Nations 23–38, esp. 23(1974)Google Scholar.

13 Stone, Conflict, supra note 4, Ch. 5.

14 Id.

15 Stone, supra note 12, at 18, 23.

16 Stone, Conflict, supra note 4, Ch. 5.

17 Stone, , Aggbession and World Order 139 ff. (1958)Google Scholar.

18 For a full consideration of this in relation to the 1974 definition, see Stone, Conflict, supra note 4, Ch. 4.

19 E.g., Mexico, 1973 Report, supra note 5, at 25. The positions of various states are considered in Stone, Conflict, supra note 4, Ch. 4, Sects. III–IV.

20 1973 Report, supra note 5, at 19.

21 Id., at 23. Algerian proposal.

22 Id.

23 See Stone, Conflict, supra note 4, Ch. 4, on this and related points hereafter.

24 Id. Ch. 4, Sect. VII, and Ch. 7.

25 Id.

26 Now included in Article 5(1) of the Consensus Definition, supra note 1. See UN Docs. A/C.6/SR.1472, at 5 (M. Rydbeck, Sweden); SR.1479, at 5 (M. Petric, Yugoslavia); SR.1476, at 4 (M. Van Brusselen, Belgium) (1974). In the Special Committee, Romania proposed this as paragraph 3 of Article 1. UN Doc. A/AC.134/SR.111, at 8 (1974).

27 1973 Report, supra note 5, at 18.

28 See on this matter, Stone, Conflict, supra note 4, Ch. 7.

29 1973 Report, supra note 5, at 16 (emphasis added).

30 Id.

31 This seems to have been how Uruguay understood the Note. Id., at 27.

32 See infra Sects. VI and VII.

33 For fuller examination of this difficult matter, see Stone, Conflict, supra note 4, Ch. 6, Sect. III, and Ch. 7, passim.

34 1973 Report, supra note 5, at 19.

35 I have elsewhere examined in detail these and other changes and the conflicting interpretations still offered of them which here concern us. Both before and after consensus, there were disagreements as to the absence of express general reference to “indirect aggression” other than that affecting the internal government of states and as to what inference concerning this might be drawn from the texts. See Stone, Conflict, supra note 4, Chs. 6, 7.

36 The sixth preambular paragraph of the Consolidated Text stated the duty of states not to use armed force to deprive peoples of their right to “self–determination, freedom and independence.” In the final draft of the Consensus Definition there was added, “or to disrupt the territorial integrity.” This might be read to imply either that any license to support self–determination ceases at the point when such support would disrupt the territorial integrity of a state. This would support the Western view of the final Article 6. Or it might, with more difficulty, be taken to imply that a state’s territorial integrity is protected only if the state complies with the right to self–determination of its peoples. For fuller discussion, see Stone, Conflict, supra note 4, Ch. 6, Sect. III.

37 Id.

38 For ample evidence of this, see id. Ch. 6, Sect. VII.

39 Id. Ch. 6, Sect. VIII.

40 Id. Ch. 6, Sects. III, VII, IX.

41 Id. Ch. 1, Sect. VI.

42 Id. Ch. 5.

43 1973 Report, supra note 5, at 22.

44 Id., at 23.

45 Id., at 24.

46 Id., at 26.

47 Comment of the Contacts and Drafting Groups, id., at 19.

48 Id., at 23.

49 Id., at 19.

50 Stone, Conflict, supra note 4, Ch. 2, Sect. II, and Ch. 6.

51 Id., Ch. 1, Sect. III.

52 See Report of the Sixth Committee, UN Doc. A/9890, para. 10 (1974) and cf. id. para. 9 as to the blockade of landlocked states.

53 Stone, Conflicts, supra note 4, Ch. 8.

54 Stone, , Approaches to the Notion of International Justice, in Falk, R. A. & Black, C. E., The Future of the International Legal Order, Ch. 8 (1969)Google Scholar; and see generally Stone, Conflicts, supra note 4, Ch. 8.

55 Ferencz, , Defining Aggression: Where It Stands and Where It’s Going, 66 AJIL 491 (1972)CrossRefGoogle Scholar; A Proposed Definition of Aggression by Compromise, 2 Int. & Comp. L. Q. 407 (1973)Google Scholar; Defining Aggression—The Last Mile, 12 Col. J. Transnational L. 430 (1973)Google Scholar.

56 Ferencz, B., Defining International Aggression: The Search for World Peace (1975)Google Scholar. Volume Two consists of a commentary (pp. 19–76) and the texts of various UN documents (pp. 79–614). Volume One similarly introduces and collects the documents of the League period.

57 2 id. 51.

58 Id. 52.

59 Id.

60 [1971] Icj Rep. 53, 58.

61 For a fuller discussion of the relation of the 1974 definition to the Charter in the above and other aspects, see Stone, Conflict, supra note 4, Chs. 1, 3, passim.

62 1973 Report, supra note 5, at 27.

63 For fuller elaboration of these extraneous goals for which the 1974 definition may have importance, see Stone, Conflict, supra note 4, especially Ch. 9, Sect. X, and Ch. 10, Sects. IX, X.