Threats of Armed Force and Contemporary International Law

Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports (1997) para. 79. Report of the International Law Commission on the work of its fifty-third session (23 April–1 June and 2 July–10 August 2001), UN Doc. A/56/10, GAOR, fifty-sixth session, Suppl. no. 10, p. 143. ILC Yearbook (1950-I) p. 59 (remarks by Liang). In some situations, threats of force can be part of a plan or preparation to wage war: see, e.g., the 1940–1941 Japanese threats against French Indo-China, carried out in order to secure a ‘jumping-off place’ for attacks against the Philippines, Malaya and the Netherlands East Indies (International Military Tribunal for the Far East, Judgment, 4–12 November 1948, reprinted in B.V.A. Röling and C.F. Rüter, eds., The Tokyo Judgment, Vol. I (Amsterdam, University Press Amsterdam 1977) (hereinafter ‘Tokyo Judgment’) pp. 381, 440). As noted by the UN Secretary-General, ‘the threat of force differs from the employment of force in the same way as the threat to kill differs from murder. The person who utters the threat may not intend to carry it out, and the threat is then only a form of intimidation and “blackmail”’ (Report of the Secretary-General on the question of defining aggression, UN Doc. A/2211 (3 October 1952), GAOR, seventh session, Annexes, Agenda item 54, at p. 68. ILC Yearbook (1950-I) p. 58 (remarks by Yepes). See, e.g., SC Res. 581 (13 February 1986) with regard to the threats of South Africa against its neighbouring states, which were qualified by the Council as a threat to the peace. South Africa’s aggressive policies against neighbouring states had already been qualified as a threat to international peace and security in SC Res. 418 (4 November 1977), although in this resolution the link between threat of force and threat to the peace was less explicit. H. McCoubrey and N.D. White, International Law and Armed Conflict (Aldershot, Dartmouth Publishing 1992) p. 57. SC Res. 186 (4 March 1964). SC Res. 353 (20 July 1974). R. Sadurska, ‘Threats of Force’, 82 AJIL (1988) p. 246. P. Karsten, P.D. Howell and A.F. Allen, Military Threats: A Systematic Historical Analysis of the Determinants of Success (Westport, Conn., Greenwood Press 1984) p. 4. The 1907 Hague Convention I revised the 1899 Hague Convention I on the Pacific Settlement of International Disputes. Obligatory arbitration is only mentioned in the declaration contained in the Final Act of the Conference. See E.C. Stowell, ‘Convention Relative to the Opening of Hostilities’, 2 AJIL (1908) pp. 50–57. See also infra n. 44. There are currently 34 States Parties to this Convention, while 17 states have signed but not ratified it. The Nuremberg and Tokyo International Military Tribunals included the 1907 Hague Conventions I and III among the treaties violated by Germany and Japan (Nuremberg International Military Tribunal, Judgment, 1 October 1946, reprinted in 41 AJIL (1947) (hereinafter ‘Nuremberg Judgment’) pp. 214–215; Tokyo Judgment, supra n. 3, at pp. 46–47, 378–380). The prohibition of threats of force in international relations was included neither in the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy (Pact of Paris) nor in the Covenant of the League of Nations. However, Art. 10 of the League of Nations Covenant made threats of aggression and of war a matter of concern for the Organization and all members (Arts. 10 and 11). As to the Pact of Paris, it has been suggested that ‘a threat to resort to war for political motives would seem to be a[n] [illegal] “recourse to war for the solution of international controversies” and “as an instrument of national policy”’ and would thus be implicitly prohibited by the Pact (I. Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press 1963) p. 364). Unlike the Covenant, the Pact of Paris is still in force. Oppenheim argues that ‘[i]f it is unlawful for Members of the United Nations to threaten another State with the use of force’, they cannot be ‘in a position to comply with the obligation to issue an ultimatum prior to resorting to war’ and therefore ‘as between Members of the United Nations these provisions of the Hague Convention, although not directly conflicting with the Charter, are substantially obsolete’. This is because ‘there is hardly room for an ultimatum’ in case of a self-defence action under Art. 51 of the UN Charter, while in the case of Chapter VII operations ‘the ultimatum will be replaced by the numerous warnings and resolutions preceding the enforcement action’ (L. Oppenheim, International Law: A Treatise (H. Lauterpacht, ed.), Vol. II (London, Longmans, Green and Co. 1952) p. 297). It is well-established that Art. 2(4) of the UN Charter only covers armed force, and not other forms of coercion. Therefore, only threats of the use of armed force will be discussed in this article. This author does not share the view according to which ‘palpable threat of economic measures that could cause a serious disruption of the trade of a certain country, and scare away, for instance, indispensable investors, should also be held to constitute an illegal threat of force’ (B. Asrat, Prohibition of Force Under the UN Charter: A Study of Article 2(4) (Uppsala, Iustus 1991) p. 139). Such a view is not consistent with the drafting history of the Charter and, in particular, with the rejection of a Brazilian amendment prohibiting also ‘the threat or use of economic measures in any manner inconsistent with the purposes of the UN’ (Documents of the United Nations Conference on International Organization, San Francisco, 1945, Vol. VI (London, United Nations Information Organizations 1945–1955) pp. 559, 720–721). J. Stein and L. Urdang, eds., The Random House Dictionary of the English Language (New York, Random House 1967) p. 1478. E.A. Martin and J. Law, eds., A Dictionary of Law (Oxford, OUP 2006) p. 535. Legality of the threat and use of nuclear weapons (hereinafter ‘Nuclear Weapons’), written statement of the Government of the French Republic, 20 June 1995, at p. 25. The ICJ written and oral proceedings are available on line at the Court’s website, >www.icj-cij.org<. UN Doc. A/AC.125/L.23, in Report of the 1966 Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, 27 June 1966, GAOR, twenty-first session, Annexes, Vol. III, Agenda item 87, pp. 30–31. ILC Yearbook (1989-II, pt. 2) p. 68. Brownlie, supra n. 15, at p. 364. Sadurska, supra n. 10, at p. 242. This is also suggested by Randelzhofer where he writes that ‘[o]nly a threat directed towards a specific reaction on the part of the target State is unlawful under the terms of Art. 2(4)’ (A. Randelzhofer, ‘tArticle 51’, in B. Simma, ed., The Charter of the United Nations. A Commentary, Vol. I (Oxford, OUP 2002) p. 124). It has been suggested that deterrent threats are usually more successful than compellent ones, since they are used to prevent actions that would not be carried out in any event (B.M. Blechman and T. Cofman Wittes, ‘Defining Moment: The Threat and Use of Force in American Foreign Policy’, in D.J. Caraley, ed., The New American Interventionism (New York, Columbia University Press 1999) p. 19). This opinion is also maintained by Y. Dinstein, War, Aggression and Self-Defence (Cambridge, CUP 2005) p. 86, and by N.D. White and R. Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat Too Far?’, 29 California Western ILJ (1999) pp. 253–254. See also the remarks by Indonesia (Verbatim Record, CR/95/25, 3 November 1995, p. 34) and Qatar (Verbatim Record, CR/95/29, 10 November 1995, p. 27) in the oral proceedings before the ICJ in the Nuclear Weapons Advisory Opinion. The point is made by S. Suy, counsel for Libya, before the ICJ in the Lockerbie case (Questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arab Jamahiriya v. UK; Libyan Arab Jamahiriya v. US) (hereinafter ‘Lockerbie’), Preliminary Objections, Verbatim Record, CR 97/24, 22 October 1997, p. 35). In spite of a contrary opinion (Asrat, supra n. 17, at p. 140, who quotes the Cuban and ‘Osirak’ cases), it does not appear that the threat of force must necessarily possess some degree of immediacy, i.e., that the harm should materialize in the near future. See also White and Cryer, supra n. 27, at p. 253, according to whom ‘[i]mmediacy may be good evidence of a real threat [but] it would be too restrictive to see immediacy as an essential component’. The Taiwanese opposition parties were supporting independence from the mainland, so the purpose of the Chinese actions was allegedly to intimidate the Taiwanese and influence the outcome of the elections. Y. Song, ‘The PRC’s Peacetime Military Activities in Taiwan’s EEZ: A Question of Legality’, 16 International Journal of Marine and Coastal Law (2001) pp. 631–635; S. Zao, ‘Military oercion and Peaceful Offence: Beijing’s Strategy of National Reunification with Taiwan’, 72 Pacific Affairs (1999) pp. 497–498. It has been suggested that this amounted to a partial blockade against Taiwan (Y.-h. Song, ‘China’s Missile Tests in the Taiwan Strait: Relevant International Law Questions’, 23 Marine Policy (1999) pp. 84–89). Taiwan established its exclusive economic zone only in January 1998, therefore the legality of those exercises under the law of the sea has to be evaluated with reference to the regime of the high seas. Y.-h. Song, ‘China’s Missile Tests’, supra n. 30, at p. 82; J.A. Bosco, ‘The International Law Implications of China’s Military and Missile Exercises in the Taiwan Strait under the 1982 United Nations Law of the Sea Convention and the United Nations Charter’, 16 Chinese Yearbook of International Law and Affairs (1997–1998) p. 52. China’s aggressive declarations were aimed not only at Taiwan but also at the US. In particular, Beijing threatened a ‘sea of fire’ if the American carriers entered the Taiwan Strait and warned of nuclear missiles on Los Angeles if the US defended Taiwan (ibid., at p. 51). The threats of force in the South China Sea were condemned, among others, by the XII Ministerial Conference of the Movement of Non-Aligned Countries, New Delhi, 4–8 April 1997, para. 146. On the subsequent 2005 Chinese Anti-Separation Law, see infra n. 43. Dinstein notes that ‘if a State declares its readiness to use force in conformity with the Charter, this is not an illegal “threat” but a legitimate warning and a reminder’ (Dinstein, supra n. 27, at p. 86). Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports (1996) para. 47. The same view was taken by some members of the ILC during the works for the Draft Code of Offences Against the Peace and Security of Mankind (ILC Yearbook (1951-I) p. 236). The French government pointed out that defensive military alliances are lawful even though they imply a deterrent threat (Nuclear Weapons, written statement of the Government of the French Republic, 20 June 1995, p. 25). Karsten, Howell and Allen, supra n. 11, at p. 117. However, the threats failed and the UK had to use force to regain control of the archipelago. Of course, threats can also be lawfully made directly by the Security Council when exercising its powers under Chapter VII of the Charter: to cite well-known examples, in Res. 1154 (2 March 1998) and 1441 (8 November 2002), the Council threatened Yugoslavia and Iraq with ‘serious’ and ‘severest’ consequences should they not comply with previous resolutions. SC Res. 940 (31 July 1994). J. Currie, ‘NATO’s Humanitarian Intervention in Kosovo: Making or Breaking International Law?’, 36 Can. YIL (1998) p. 320. It is well-known that this opinion was argued by the UK Attorney General, Lord Goldsmith (54 ICLQ (2005) pp. 767–778). Sadurska, supra n. 10, at p. 242, who adds that ‘[o]nly communications that arouse the anticipation of severe deprivation or destruction of values in the target audience and, hence, trigger a reaction of stress that leads to accommodating or adaptive behaviour as the only reasonable alternative can be regarded as a threat’ (ibid., at p. 244). See also San Marino’s statement according to which ‘the threat does not work unless it is credible’ (Nuclear Weapons, Verbatim Record, CR 95/31, 13 November 1995, p. 20). This view is also maintained by Judge Weeramantry: ‘a secretly harboured intention to commit a wrongful or criminal act does not attract legal consequences, unless and until that intention is followed through by corresponding conduct. Hence such a secretly harboured intention may not be an offence. If, however, the intention is announced, whether directly or by implication, it then becomes the criminal act of threatening to commit the illegal act in question’ (Dissenting Opinion, Nuclear Weapons, p. 541). For instance, in 1971 Guinea denounced the threat of imminent attack by Portugal against its territory. The representatives of Somalia and Syria in the Security Council held that the Portuguese threat against Guinea ‘should be taken seriously... because of the history of continued aggression by Portugal against Guinea’ (25 Yearbook of the United Nations (1971) p. 119). However, Portugal’s actions amounted to preparation of aggression and not to a threat of force against Guinea, as the Portuguese Foreign Ministry and the Governor of Guinea Bissau denied that any invasion was being prepared (Keesing’s Contemporary Archives (1971–1972) p. 24940). According to the ILC, the threat may consist in ‘declarations, that is to say expression made public in writing or orally; communications, that is to say messages sent by the authorities of one Government to the authorities of another Government, by no matter what means of transmission; and, finally, demonstrations of force such as concentration of troops near the frontier’ (ILC Yearbook (1989-II, pt. 2) p. 68). See, e.g., the 2005 Chinese Law against the Separation of Taiwan, adopted on 14 March 2005 by the Third Session of the Tenth People’s National Congress and entered into force on the day of its adoption. Art. 8(1) of the Law provides that ‘[i]n the event that the “Taiwan independence” secessionist forces should act under any name or by any means to cause the fact of Taiwan’s secession from China, or that major incidents entailing Taiwan’s secession from China should occur, or that possibilities for a peaceful reunification should be completely exhausted, the state shall employ non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity’ (text in 4 Chinese JIL (2005) pp. 461–463). Section 2008 of the 2002 American Servicemembers’ Protection Act (dubbed ‘Hague Invasion Act’) might also be recalled here, where it provides that the US President can use ‘all means necessary and appropriate to bring about the release’ of covered US and allied persons detained or imprisoned by, on behalf of, or at the request of the International Criminal Court (text at >www.state.gov/t/pm/rls/othr/misc/23425.htm<). See also the Russian policy to reserve the right to use armed force in the territory of the CIS republics if other means have been exhausted (press conference of the Russian Defence Minister Ivanov, Colorado Springs (9 October 2003), Radio Free Europe/Radio Liberty Reports, vol. 4, no. 41 (14 October 2003), at >www.rferl.org/reports/securitywatch/2003/10/41-141003.asp<). Section 15 of the 1983 Swedish Ordinance Containing Instructions for the Armed Forces in Times of Peace and in State of Neutrality, which was adopted in response to a series of Soviet intrusions, threatens to use force with or without prior warning against foreign submarines found submerged in Sweden’s internal and territorial waters. However, states do not appear to have protested against the adoption of the Ordinance. For a discussion, see R. Sadurska, ‘Foreign Submarines in Swedish Waters: The Erosion of an International Norm’, 10 Yale JIL (1984–1985) pp. 34–58 (the text of Section 15 is at p. 49). Oppenheim, supra n. 16, at p. 295. There are two types of ultimata: the ones mentioned in the 1907 Hague Convention III amounting to a conditional declaration of war and setting a specific deadline after which war will follow immediately if the demands are not accepted; and ultimata that contain no deadlines or references to automatic consequences and must thus be interpreted in the light of the existing circumstances (N. Hill, ‘Was There an Ultimatum Before Pearl Harbor?’, 42 AJIL (1948) pp. 357–359; Dinstein, supra n. 27, at pp. 30–31). Hague Convention III implies that the latter type must be followed by a formal declaration of war, the absence of which, however, does not per se make the war illegal. There have been several examples of post-World War II ultimata, such as the Anglo-French 24 hour ultimatum to Egypt on 30 October 1956 (Q. Wright, ‘Intervention, 1956’, 51 AJIL (1957) pp. 257–259). Nicaragua also argued that President Reagan’s peace proposal of 4 April 1985 ‘was in reality an ultimatum announcing recourse to military measures if certain demands are not accepted’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) (hereinafter ‘Nicaragua’), ICJ Pleadings (1991-IV) p. 120). More recently, NATO threatened to launch air strikes against heavy weapons located in the exclusion zone surrounding Sarajevo after the expiration of a 10-day deadline. The ultimatum was reiterated two months later (T. Gazzini, ‘NATO Coercive Military Activities in the Yugoslav Crisis (1992–1999)’, 12 EJIL (2001) pp. 399–400). In the Kosovo crisis, the North Atlantic Council issued an Activation Order for Phased Air Operation and Limited Air Option (13 October 1998) to begin in ninety-six hours should the Federal Republic of Yugoslavia not fully comply with SC Res. 1199 of 23 September 1998. O. Schachter, ‘The Right of States to Use Armed Force’, 82 Michigan L Rev. (1984) p. 1625. According to the UN Secretary-General, a threat of force does not necessarily have to be made openly, as in certain occasions ‘veiled threats... may be very effective, but... difficult to detect’ (Report of the Secretary-General on the question of defining aggression, supra n. 4, at p. 68). Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction, Judgment of 2 February 1973, ICJ Reports (1973) p. 91. See, e.g., the note sent by the British government to Egypt during the Cairo riots in 1952 (N. Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht, Nijhoff 1985) p. 28). The point was made by Brownlie on behalf of Libya in the Lockerbie case, Preliminary Objections, Verbatim Record, CR 97/21, 17 October 1997, pp. 51–54, in particular at p. 53 (‘a statement that force may be used if it proves necessary... is... in fact, and in law, a threat of force’). According to the UK, however, ‘to repeat, parrot-fashion, a series of stale allegations... as if the repetition constituted proof’ would not provide evidence of the existence of a threat of force, and ‘[i]t will simply not do.... to offer ambiguous public utterances as proof of so serious an allegation as an imminent threat to use force in the face of the observable facts’ (Verbatim Record, CR 97/22, 20 October 1997, p. 14). The US maintained that no decision had been made on any option at the time and that thus those expressions did not amount to a threat of the use of force (Verbatim Record, CR 97/23, 20 October 1997, p. 9). The ICJ did not pronounce on the point as it decided that it was bound to dismiss Libya’s request for provisional measures of protection because the Security Council had taken concrete enforcement action under Chapter VII (Order of 14 April 1992, ICJ Reports (1992) pp. 3–16). Declarations similar to those made by the UK and the US towards Libya in the Lockerbie case were also employed by NATO against Yugoslavia during the Kosovo crisis (Gazzini, supra n. 44, at p. 406). See also the British declarations towards Iran during the 1946 and 1951 crisis (Ronzitti, supra n. 46, at pp. 26–27). More recently, Iran argued that ‘threatening Iran with “tangible and painful consequences” and using the phrases “use all the tools at our disposal”, “rest assured, though, we are not relying on the Security Council as the only tool in our toolbox to address this problem” and “already beefing up defensive measures”’ are ‘unlawful, unacceptable and dangerous threats of use of force’ (Letter dated 17 March 2006 from the permanent representative of Iran to the UN Secretary-General, A/60/730-S/2006/178 (22 March 2006), pp. 1–2, at >www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Iran%20S2006178.pdf<). Letter dated 27 April 2006 from the permanent representative of the Islamic Republic of Iran to the UN Secretary-General, A/60/834-S/2006/273 (1 May 2006), p. 1, at >daccessdds.un.org/doc/UNDOC/GEN/N06/334/42/PDF/N0633442.pdf?OpenElement<. Corfu Channel (UK v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949) para. 35. As highlighted by Nauru, ‘not every disparity of power between persons or economic or political units constitutes a threat actionable at law’ (Nuclear Weapons, Memorial of the Government of Nauru, 15 June 1995, at p. 26). M. Walzer, Just and Unjust Wars (New York, Basic Books 2000) p. 81. This seems to be incidentally suggested also by Schachter, supra n. 45, at p. 1625. Walzer points out that there must be ‘a manifest intent to injure’ and ‘a degree of active preparation that makes that intent a positive danger’ (Walzer, supra n. 51, at pp. 80–81). Randelzhofer (supra n. 25, at p. 124) recognizes the importance of ‘coercive intent’ in order to determine the existence of a threat under Art. 2(4), but specifies that this intent must be directed towards a specific behaviour on the part of the target state, which, in this author’s opinion, is not always necessary (supra nn. 25 et seq. and corresponding text). The relevance of the intention to threat was also highlighted by some members of the ILC during the drafting of Art. 13 of the Code of Crimes against Peace and Security of Mankind (ILC Yearbook (1989-I) pp. 292–294). It is to be pointed out that intention (animus) is different from motive: ‘[m]otive... is the reason for which an act of aggression is committed...: e.g., the destruction of a State, the annexation of a territory, the establishment of a protectorate... Intention exists only when the State committing the act has acted deliberately’ (Report of the Secretary-General on the question of defining aggression, supra n. 4, at p. 68). The motive of the preparation and of the threat of aggression could be the same (e.g., the annexation of a territory) but the intention would necessarily be different (to eventually use force in the former, only to threaten it in the latter). Para. 2 was added as a compromise between those states maintaining that intent was an essential element of aggression and those who argued that only due regard had to be given to it, as the first use of armed force would suffice (J. Stone, ‘Hopes and Loopholes in the 1974 Definition of Aggression’, 71 AJIL (1977) pp. 228–230). According to the Special Rapporteur on the Draft Code of Offences Against the Peace and Security of Mankind, ‘[t]hat the animus aggressionis is a constitutive element of the concept of aggression needs no demonstration. It follows from the very essence of the notion of aggression as such’ (ILC Yearbook (1951-II) p. 68). See also A. Cassese, International Law (Oxford, OUP 2005) p. 273. In re Von Leeb et al. (28 October 1948), 15 ILR (1948) pp. 379–380. The Nuremberg Judgment also held that rearmament is a crime against peace only when it is part of the plans to wage aggressive wars (Nuremberg Judgment, supra n. 14, at p. 300). Supra n. 33, at p. 54. Verbatim Record, CR 97/24, 22 October 1997, p. 44. Keesing’s Contemporary Archives (1987) p. 35129. Keesing’s Contemporary Archives (1995) pp. 40373, 40513. ILC Yearbook (1989-I) p. 291. Corfu Channel, supra n. 49, at p. 35. ICJ Pleadings (1991-IV) pp. 117, 120. Nicaragua, Merits, Judgment of 27 June 1986, ICJ Reports (1986) para. 118. Declaration by I. Brownlie, counsel for Libya (Lockerbie, Preliminary Objections, Verbatim Record, CR 97/21, 17 October 1997, p. 51). S/PV.3438, 15 October 1994, pp. 9, 11. The UK pointed out that Iraq had a ‘record of aggression’, which entailed that ‘the deployment of such large units of the Iraqi army, with their heavy sophisticated weaponry, cannot be considered, under any circumstances, a purely internal affair or one that falls within the purview of inviolable sovereignty, particularly in the light of the Iraqi Revolutionary Council’s statement of 6 October, which contained a clear threat to Kuwait and the States of the region’ (ibid., at p. 13). The US also linked the 1994 threats to the events of 1990 (S/PV.3439, 17 October 1994, p. 7). The movements of Turkish troopships in the vicinity of Cyprus accompanied by the Turkish Prime Minister’s aggressive declarations was also considered a threat of force by the representative of Cyprus in the Security Council (Repertoire of the Practice of the Security Council, Suppl. 1964-1965 (New York, United Nations 1968) p. 202). Letter dated 17 March 2006 from the permanent representative of the Islamic Republic of Iran to the UN Secretary-General, supra n. 47, at p. 2; Letter dated 27 April 2006 to the UN Secretary-General, supra n. 48, at p. 2. I. Brownlie, Principles of Public International Law (Oxford, OUP 2003) p. 6. According to Section 102(3) of the Restatement (Third) of US Foreign Relations Law, ‘international agreements... may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted’ (American Law Institute, Restatement (Third) of Foreign Relations Law, Vol. I (St. Paul, Minn., American Law Institute Publishers 1987) p. 24). Comment (i) specifies that ‘[i]nternational agreements constitute practice of states and as such can contribute to the growth of customary law’ when a multilateral agreement is ‘designed for adherence by states generally, is widely accepted and is not rejected by a significant number of important states’, or when there is a ‘wide network’ of similar bilateral arrangements (ibid., at p. 27). Art. 19(2) (a) also provides that the passage of a foreign ship which engages, inter alia, in ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations’ is not innocent. Furthermore, Arts. 58(2) and 88 provide that the high seas and the exclusive economic zone shall be reserved for peaceful purposes: this language was meant to reflect the meaning of Art. 2(4) of the UN Charter (F. Francioni, ‘Peacetime Use of Force, Military Activities, and the New Law of the Sea’, 18 Cornell ILJ (1985) p. 223; T. Treves, ‘La navigation’, in R.-J. Dupuy and D. Vignes, eds., Traité du nouveau droit de la mer (Paris, Economica 1985) pp. 747–748). Threats of ‘aggression’ (not of other forms of the use of force) also trigger the mechanism for conflict prevention, management, resolution, peace-keeping and security provided in Art. 25 of the 1999 Lomé Protocol additional to the ECOWAS Treaty. Protocol II to the 1967 Tlatelolco Treaty, Protocol 2 of the 1985 Rarotonga Treaty, the Protocol Additional to the 1995 Bangkok Treaty, Protocol I to the 1996 Pelindaba Treaty and the Protocol Additional to the 2006 Semipalatinsk Treaty. See M. Roscini, Le zone denuclearizzate (Turin, Giappichelli 2003) pp. 301–338. Art. 1 of the 1959 Antarctic Treaty. See also Art. 4 of the 1967 Outer Space Treaty. Sadurska, supra n. 10, at p. 258. Dissenting Opinion, Nuclear Weapons, supra n. 33, at p. 526. Ronzitti, supra n. 46, at pp. 26–27. M.M. Whiteman, Digest of International Law, Vol. 5 (Washington, DC, Department of State Publication 1965) pp. 711–716 (quotation at p. 715). Ibid., at pp. 713–714. Repertoire of the Practice of the Security Council, Suppl. 1964–1965 (New York, United Nations 1968) pp. 201–202. Ronzitti, supra n. 46, at p. 40. Sadurska, supra n. 10, at p. 261. See the statements of Argentina, Djibouti, Kuwait, New Zealand, Pakistan, Spain, UK, US (S/PV.3438, 15 October 1994, pp. 4–5, 8–11, 13). Nicaragua, Merits, supra n. 62, para. 92. See also Nicaragua’s Memorial (Merits), ICJ Pleadings (1991-IV) pp. 119–120. S/PV.5551, 14 October 2006, p. 8. In 1998, Iran and Libya qualified the threats as a violation of the Charter (White and Cryer, supra n. 27, at p. 262). See also the declarations by China (S/PV.3831, 12 November 1997, p. 15, and S/PV.3858, 2 March 1998, p. 14) and the Russian Federation (S/PV.3831, 12 November 1997, p. 13). With regard to Operation Iraqi Freedom, see the declarations by the representatives of Lebanon (S/PV.4717, 11 March 2003, p. 33), Malaysia (S/PV.4625 (Resumption 1), 16 October 2002, p. 6), Nepal (S/PV.4625 (Resumption 2), 17 October 2002, p. 26), Nigeria (S/PV.4625 (Resumption 1), 16 October 2002, p. 20), Yemen (S/PV.4709, 18 February 2003, p. 29). The Summit of the Non-Aligned Movement held in Kuala Lumpur (24–25 February 2003) also condemned the threat of military action, as well as the Arab Summit held at Sharm el-Sheikh on 1 March 2003, the Annual Coordination Meeting of Foreign Ministers of Member States of the Organization of the Islamic Conference (New York, 17 September 2002) and the Beirut Summit of the League of Arab States of 27–28 March 2002. S/PV.3937, 24 October 1998, p. 14. As it has been observed, ‘although the sharp division between the members of the Security Council prevented that organ from taking any position on the legality of the NATO military threat, the strong Chinese and Russian opposition greatly reduced the relevance of the NATO initiative as a case of departure from the prohibition of the threat of force’ (Gazzini, supra n. 44, at p. 430). Russia called for the immediate rescission of the NATO Activation Order (S/PV.3937, 24 October 1998, p. 12). B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL (1999) p. 9. See the declarations by China (S/PV.3937, 24 October 1998, p. 14, and S/PV.3988, 24 March 1999, p. 12), India (S/PV.3988, 24 March 1999, p. 16), Malaysia (S/PV.3988, 24 March 1999, p. 9) and the Russian Federation (S/PV.3988, 24 March 1999, pp. 2–3). Armed activities on the territory of the Congo (DRC v. Uganda) (hereinafter ‘DRC-Uganda’), Counter-memorial submitted by the Republic of Uganda, Vol. I, 21 April 2001, p. 3. See the letter dated 17 March 2006 from the permanent representative of the Islamic Republic of Iran to the UN Secretary-General, supra n. 47, at pp. 1–2; Letter dated 31 July 2006 to the President of the UN Security Council, S/2006/603 (2 August 2006), p. 3, at >www.iranwatch.org/international/UNSC/unsc-s2006603-irancomm-080206.pdf<); Letter dated 10 November 2006 to the UN Secretary-General, A/61/571-S/2006/884 (13 November 2006), p. 1, at >daccessdds.un.org/doc/UNDOC/GEN/N06/614/45/PDF/N0661445.pdf?OpenElement<. S/PV.5647, 24 March 2007, p. 3. France, UK, US, Russia and Australia also condemned the declarations (P. Weckel, ‘Condamnation des propos du Chef d’Etat iranien appellant à “rayer Israël de la carte”’, Sentinelle, 30 October 2005, at >www.sfdi.org/actualites/Sentinelle%2039.htm<; see also S/PV.5647, 24 March 2007, p. 10). Ahmadinejad’s declarations can be read at >english.aljazeera.net/English/archive/archive?ArchiveId=15816<. In December 2001, Iranian President Rafsanjani had already called on the Muslim states to use nuclear weapons against Israel, assuring that it would result in the annihilation of the Jewish state and in damages only to them (‘Rafsanjani says Muslims should use nuclear weapons against Israel’, Iran Press Service, 14 December 2001, available at >www.iran-press-service.com/articles_2001/dec_2001/rafsanjani_nuke_threats_141201.htm<). See >www.foreignminister.gov.au/transcripts/2005/050314_sky.html< (14 March 2005). However, the Australian Minister for Foreign Affairs pointed out that ‘what is going to be important is whether they [the Chinese] actually do attack Taiwan or they don’t’. See >taiwansecurity.org/Reu/2005/Reuters-150305.htm< (15 March 2005). Keesing’s Contemporary Archives (2005) pp. 46520–46521. On the 2005 Anti-Separation Law, see supra n. 43. McCoubrey and White, supra n. 7, at p. 58. The best example of this scenario is the (non) reaction of the international community to the US threat to use force against Cuba during the 1962 missile crisis. Only the Soviet representative in the Security Council qualified the proclamation of the naval blockade of the island and the military measures taken on the instructions of the US President as a threat of force against the territorial integrity and political independence of Cuba, in violation of the principles of the UN Charter and of the ‘elementary’ principles of international law (Keesing’s Contemporary Archives (1961–1962) p. 19065). See the UK and US arguments before the ICJ in response to Libya’s allegation of being the victim of threats in order to be compelled to surrender two Libyan nationals (Lockerbie, Preliminary Objections, Verbatim Record, CR 97/16 (Libya v. UK), 13 October 1997, p. 19; CR 97/22 (Libya v. UK), 20 October 1997, pp. 13–14; and CR 97/23 (Libya v. US), 20 October 1997, p. 9). Declaration by the US representative with regard to Kosovo (S/PV.3937, 24 October 1998, p. 15) and by the UK representative with regard to Iraq (S/PV.4714, 7 March 2003, p. 27), respectively. Other states supporting the threat of force to persuade Iraq to disarm were Bulgaria (S/PV.4714, 7 March 2003, p. 31), the Former Yugoslav Republic of Macedonia (S/PV.4709 (Resumption 1), 19 February 2003, p. 18) and Spain (SP/PV.4714, 7 March 2003, p. 24). S/PV.4707, 14 February 2003, p. 18. Ibid., at p. 21. N.D. White, ‘Self-Defence, Security Council Authority and Iraq’, in R. Burchill, N.D. White and J. Morris, eds., International Conflict and Security Law. Essays in Memory of Hilaire McCoubrey (Cambridge, CUP 2005) p. 261. Ibid. See the above mentioned 2005 Chinese Law against the Separation of Taiwan. According to Beijing, one of the purposes of the Law, which threaten the use of force against Taiwan should it achieve formal independence, is maintaining peace and stability and thus preventing armed hostilities in the Taiwan Strait (Art. 1). As observed, ‘[i]n China’s view, the threat to use force is an effective deterrent in China’s overall Taiwan policy to curb Taiwan’s independence’ (Zou Keyuan, ‘Governing the Taiwan Issue in Accordance with Law: An Essay on China’s Anti-Secession Law’, 4 Chinese JIL (2005) p. 457). It is however to be noted that the Chinese position is not always consistent: see, e.g., the statement in the Security Council with regard to the 1998 US/UK air strikes against Iraq, according to which ‘China has always strongly advocated peaceful settlement of international disputes and is against the use or the threat of use of force in international relations’ as ‘such acts contravene international law and norms governing international relations’ (S/PV.3955, 16 December 1998, p. 5). On 19 January 2006, President Chirac declared that France might use nuclear weapons against states sponsoring a terrorist attack against French interests. The notion of ‘vital interests’ which fall under the protection of the nuclear programme includes not only the territorial integrity, the protection of the population and the free exercise of French sovereignty, but also ‘strategic supplies’ and the ‘defence of allied countries’. A use of terrorist means or weapons of mass destruction against such interests would entail an armed response which would not necessarily be a conventional one. Chirac adds that the ‘credible threat’ of the utilization of nuclear weapons ‘permanently hangs over those leaders who harbour hostile intentions against us’ (the full text of the speech can be read at >www.elysee.fr/elysee/root/bank/print/38447.htm<). According to the German Foreign Minister Kinkel, the NATO threats of force against Yugoslavia followed the ‘sense and logic’ of the Security Council resolution on the matter and legitimately (if not legally) backed them (quoted in B. Simma, supra n. 85, at p. 12). The threat to employ ‘means other than diplomacy’ has been used to try to stop Iran’s nuclear program (see Letter dated 31 July 2006 from the permanent representative of the Islamic Republic of Iran to the President of the UN Security Council, supra n. 88, at p. 3). According to Tunisia, ‘it would be wise to deal with every aggression’ in the Bosnian ‘safe areas’ with the threat of the use of force by NATO (S/PV.3336, Resumption 2, 15 February 1994, p. 160). On the positive role of the threat of force in the war in Bosnia, see also the declaration of Senegal (ibid., at p. 172), Croatia (S/PV.3367, 21 April 1994, at p. 6), the Chairman of the Islamic Conference (ibid., at p. 20), Malaysia (S/PV.3336, Resumption 1, 14 February 1994, p. 81), the Netherlands (S/PV.3336, Resumption 1, 14 February 1994, p. 134), Pakistan (S/PV.3370, 27 April 1994, p. 4), UK (S/PV.3454, 8 November 1994, p. 7), US (Opening remarks by the US Secretary of State at the London International Conference on Bosnia (21 July 1995), 6 US Department of State Dispatch (1995) p. 583). On the contrary, China constantly opposed to any threat of force throughout the crisis (see, e.g., S/PV.3336, Resumption 1, 14 February 1994, p. 70; S/PV.3344, 4 March 1994, p. 11; S.PV/3367, 21 April 1994, p. 55). See the threats of intervention in Iran (1946 and 1951) and Egypt (1952) in order to enforce those states’ duty to maintain law and order and to protect foreign residents from violence (Ronzitti, supra n. 46, at pp. 26–28). See the declarations of the US Secretary of State James A. Baker to the Iraqi Prime Minister Tareq Aziz, according to which he ‘purposely left the impression that the use of chemical or biological agents by Iraq could invite tactical nuclear retaliation’, as ‘the best deterrent of the use of weapons of mass destruction by Iraq would be a threat to go after the Ba’ath regime itself’ (J.A. Baker III, The Politics of Diplomacy. Revolution, War and Peace, 1989–1992 (New York, G.P. Putnam’s Sons 1995) p. 359, quoted in Judge Schwebel’s Dissenting Opinion in Nuclear Weapons, supra n. 33, at p. 324). The US threats to use nuclear weapons against Iraq apparently succeeded: ‘Iraqi officials claimed they decided not to use the weapons after receiving a strong but ambiguously worded warning from the Bush administration on 9 January 1991, that any use of unconventional warfare would provoke a devastating response’ (The Washington Post, 26 August 1995, quoted ibid., at p. 326). Brownlie, supra n. 66, at p. 6. Res. 581 (13 February 1986) with regard to South Africa and Res. 186 (4 March 1964) with regard to the situation in Cyprus (McCoubrey and White, supra n. 7, at pp. 57, 62). GA Res. 36/27 (13 November 1981). White, N.D. White and J. Morris, eds., International Conflict and Security Law. Essays in Memory of Hilaire McCoubrey (Cambridge, CUP 2005) supra n. 100, at p. 261. S/PV.4625 (Resumption 1), 16 October 2002, p. 7. See >europa.eu/bulletin/en/9603/p104078.htm<. Resolution on Relations Between the European Union, China and Taiwan and Security in the Far East, P6_TA(2005)0297 (7 July 2005), preambular para. A and para. 5. The European Parliament resolutions are available on line at >www.europarl.europa.eu<. Resolution on the European Union’s Strategy Towards China, P5_TA(2002)0179 (11 April 2002), para. 26; Resolution on the Commission Communication on Europe and Asia: A Strategic Framework for Enhanced Partnerships, P5_TA(2002)0408 (5 September 2002), paras. 17, 37. Statement by the Presidency on behalf of EU leaders meeting at Hampton Court (27 October 2005), available at >www.eu2005.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1107293561746&=KArticle&id=1129043426235<. See >www.un.org/apps/sg/sgstats.asp?nid=1759< (27 October 2005) and >www.un.org/apps/sg/sgstats.asp?nid=1831< (8 December 2005). SC/8542 (28 October 2005) and SC/8576 (9 December 2005). NATO Press release (99), 23 February 1999, p. 21. NATO Secretary-General Press conference, 13 October 1998, >www.nato.int/docu/speech/1998/s981013b.htm<. Quoted in White and Cryer, supra n. 27, at pp. 279–280. Judge Schwebel, in his Dissenting Opinion, argues that the US threats to use nuclear weapons against Iraq dissuaded Saddam Hussein from using chemical weapons, and asks: ‘[c]an it seriously be maintained that Mr. Baker’s calculated — and apparently successful — threat was unlawful? Surely the principles of the United Nations Charter were sustained rather than transgressed by the threat’ (Nuclear Weapons, supra n. 33, at p. 327). See, however, the criticism of the Chinese delegate, S/PV.4011, 10 June 1999, at p. 9. North Sea Continental Shelf (Federal Republic of Germany v. Denmark and the Netherlands), Merits, Judgment of 20 February 1969, ICJ Reports (1969) para. 74. In its Application in the Genocide case before the ICJ, Bosnia and Herzegovina claimed that the threat of force by Yugoslavia (Serbia and Montenegro) was not only inconsistent with Art. 2(4) of the UN Charter, but also with customary international law (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, para. 64(f)(g), available at >www.icj-cij.org<). In the Memorial, Bosnia and Herzegovina did not reiterate these claims, as Serbia and Montenegro had accepted the ICJ jurisdiction under the terms of the Genocide Convention (para. 65). The Chinese representative in the Security Council argued that the NATO threats against Yugoslavia were a violation of the UN Charter ‘as well as international law’ ‘international law’ as distinct from the Charter should be interpreted as a reference to custom (S/PV.3937, 24 October 1998, p. 14). In the 1971 Shanghai Communiqué, China and the US agreed that, notwithstanding ‘essential differences’ between them in their social systems and foreign policies, they both recognized the existence of a duty to settle international disputes without the use or the threat of force and declared themselves prepared to apply this principle to their mutual relations (11 ILM (1972) p. 444). Similarly, in April 2005, China and India agreed that their border disputes should be resolved through peaceful means, instead of resorting to force or threat of force (Hu Qian, ‘Chinese Practice in Public International Law’, 4 Chinese JIL (2006) p. 773). Threats of force have however been used against Taiwan, because China considers the island a secessionist province, to which Art. 2(4) of the UN Charter (prohibiting the threat of force ‘in international relations’) does not apply. DRC-Uganda, DRC Memorial, July 2000, pp. 133–135. Nuclear Weapons, written statement of the Government of the French Republic, 20 June 1995, p. 24. Letter dated 10 November 2006 from the permanent representative of Iran to the UN Secretary-General, which lists the Israeli statements threatening to use force against Iran and qualifies them ‘in total defiance of international law and the fundamental principles of the Charter of the United Nations’ (supra n. 88, at p. 2; emphasis added). See similarly the letter dated 17 March 2006 to the UN Secretary-General, supra n. 47, at p. 1. Nuclear Weapons, written statement of the Government of the Marshall Islands, 22 June 1995, para. 5. Nuclear Weapons, written statement of the Government of Mexico, 19 June 1995, p. 8. Nicaragua, Merits, Memorial, ICJ Pleadings (1991-IV) pp. 118–119. Nuclear Weapons, Verbatim Record, CR/95/29, 10 November 1995, p. 29. Nicaragua, Jurisdiction and Admissibility, Counter-memorial, ICJ Pleadings (1991-II) pp. 94–95. In the Nuclear Weapons Advisory Opinion, the ICJ acknowledged that ‘no State whether or not it defended the policy of deterrence suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal’ (supra n. 33, at para. 47). Nicaragua, Merits, supra n. 62, at para. 186. White and Cryer, supra n. 27, at p. 246. Nicaragua, Merits, supra n. 62, at paras. 187–190; Legal consequences of the construction of a wall in the occupied Palestinian territory, Advisory Opinion of 9 July 2004 (hereinafter ‘Legality of the Wall’), ICJ Reports (2005) para. 87. However, in the Oil platform case, Judge Simma regretted in his Separate Opinion that the Court did not restate the customary nature of the UN principles on the use of force ‘in a context and at a time when such a reconfirmation is called for with the greatest urgency’ (Oil Platforms (Iran v. US), Merits, Judgment of 6 November 2003, ICJ Reports (2003) para. 6). ILC Yearbook (1966-II) p. 246: ‘The principles regarding the threat or use of force laid down in the Charter are, in the opinion of the Commission, rules of general international law which are today of universal application.’ Declaration on the Inadmissibility of Intervention in the Domestic Affairs States and the Protection of their Independence and Sovereignty (Res. 2131 (XX), 21 December 1965); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (Res. 2625 (XXV), 24 December 1970), which is considered an authoritative interpretation of the relevant Charter provisions (M. Virally, ‘Article 2, Paragraphe 4’, in J.-P. Cot and A. Pellet, eds., La Charte des Nations Unies (Paris, Economica 1991) p. 119); Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (Res. 42/22, 18 November 1987), paras. 1–2. See also the Declaration on Essentials of Peace (Res. 290 (IV), 1 December 1949), the Declaration on the Inadmissibility of Intervention and Interference in the International Affairs of States (Res. 36/103, 9 December 1981), the Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in This Field (Res. 43/51, 5 December 1988), the Declaration on the Strengthening of International Security (Res. 2734 (XXV), 16 December 1970) and the Final Document of the First Special Session of the UN General Assembly on Disarmament, 1978, para. 26. In the Nicaragua case (Merits), the ICJ implicitly acknowledged that these resolutions, and in particular the Friendly Relations Declaration, might reflect customary international law (supra n. 62, at para. 188). At least some provisions of the Friendly Relations Declaration were considered by the ICJ as declaratory of customary international law in DRC-Uganda, Judgment of 19 December 2005, para. 162, at >www.icj-cij.org<. Para. 2. See also GA Res. 2936 (XXVII) (29 November 1972), the preamble of which states that the renunciation of the use or threat of force is an obligation that all states should respect. Sadurska, supra n. 10, at pp. 260–266. Ibid., at p. 250. Ibid. Ibid. Ibid., at p. 260. S/PV.3988, 23 March 1999, p. 3. White and Cryer, supra n. 27, at p. 281. Nuclear Weapons, supra n. 33, at para. 47. Ibid., at para. 48. See also the Dissenting Opinion of Judge Weeramantry, according to whom ‘the United Nations Charter draws no distinction between the use of force and the threat of force. Both equally lie outside the pale action within the law’ (para. 3, emphasis added). He also adds that ‘[i]f an act is wrongful, the threat to commit it and, more particularly, a publicly announced threat, must also be wrongful’. The Czech Republic ‘rejects the threat of force as an instrument of international policy’, so even if it is for a good purpose (S/PV.3439, 17 October 1994, p. 11). Nuclear Weapons, Verbatim Record, CR/95/26, 6 November 1995, at p. 24. According Nauru, the threat ‘is itself a kind of use’ (Nuclear Weapons, Memorial of the Government of Nauru, 15 June 1995, pp. 11, 23). Nuclear Weapons, written statement of the Government of Malaysia, 19 June 1995, p. 8. Written statement by the Government of Mexico, 19 June 1995, at p. 7. Nuclear Weapons, Verbatim Record, CR 95/29, 10 November 1995, p. 27. Nuclear Weapons, Verbatim Record, CR 95/31, 13 November 1995, p. 20. Nuclear Weapons, Verbatim Record, CR 95/34, 15 November 1995, p. 79. Remarks by J.M. Yepes, ILC Yearbook (1951-I) p. 58. The same view is shared by Brownlie, supra n. 15, at p. 364; and White and Cryer, supra n. 27, at p. 254. Ronzitti, supra n. 46, at p. 75. Emphasis added. Nicaragua, Merits, ICJ Pleadings (1991-IV) p. 115. However, it is not at all clear from the Memorial whether it is believed that only the prohibition of the use of force reflects jus cogens or the whole of Art. 2(4). Nuclear Weapons, Memorial of the Government of Nauru, 15 June 1995, pp. 3–4. Nuclear Weapons, Verbatim Record, CR/95/26, 6 November 1995, p. 22. Nuclear Weapons, Verbatim Record, CR/95/25, 3 November 1995, p. 19. Nuclear Weapons, written statement of the Government of Malaysia, 19 June 1995, p. 3. Nuclear Weapons, Verbatim Record, CR/95/29, 10 November 1995, p. 30. See the argumentations of Yugoslavia (Serbia and Montenegro)’s Co-Agent, de Waart, before the ICJ, according to whom ‘the international prohibition of the use of force arises out of a peremptory norm of international law’ (Legality of use of force (Serbia and Montenegro v. Belgium et al.) (hereinafter ‘Legality of use of force’), Verbatim Record, CR 99/14, 10 May 1999, p. 47; emphasis added). Libya’s position is more ambiguous. While in the Lockerbie proceedings it at first only qualified as ‘droit international général de caractère impératif’ the rules of general international law prohibiting the use of force (Lockerbie, Libya’s Memorial, 20 December 1993, p. 242), it subsequently referred to the ‘violation des principes impératifs du droit international général qui interdisent le recours à la menace de l’emploi de la force’ (Lockerbie, Libya’s Reply, 29 June 2000, p. 86). As to the US, the memorandum of the Department of State’s Legal adviser to the acting Secretary of State with regard to the USSR military intervention in Afghanistan (29 December 1979) states that ‘[w]hile agreement on precisely what are the peremptory norms of international law is not broad, there is universal agreement that the exemplary illustration of a peremptory norm is Article 2, paragraph 4’ (M.L. Nash, ‘Contemporary Practice of the United States Relating to International Law’, 74 AJIL (1980) p. 419). The situation to which the memorandum referred to, however, was a case of aggression, and not of a threat: it is not clear, thus, whether the Legal adviser actually meant to include the prohibition of a threat of aggression within the ‘exemplary illustration of a peremptory norm’. The US Counter-memorial in the jurisdiction stage of the Nicaragua case does not expressly state that Art. 2(4) reflects jus cogens, but more ambiguously quotes commentators who have held this view (ICJ Pleadings (1991-II) pp. 94–95). Be that as it may, even assuming that this was the US’ position until the 1980s, it was later rejected as shown by the strategy of threats carried out against Yugoslavia and Iraq in the 1990s. 4 EJIL (1993) p. 90. See also the ILC commentaries on the Draft Articles on the Law of Treaties and on the 2001 Articles on State Responsibility, which only mention the prohibition of aggression or of the use of force as examples of peremptory norms (see, respectively, ILC Yearbook (1966-II) p. 247, and Report of the International Law Commission on the work of its fiftythird session, supra n. 2, at p. 208). In the Nicaragua case (Merits), the ICJ referred to frequent statements by state representatives arguing that the prohibition to use force as contained in Art. 2(4) of the Charter is not only a principle of customary international law, but also ‘a fundamental or cardinal principle of such law’ (supra n. 62, at para. 190). It is far from clear whether that means jus cogens and, if so, whether the Court shared this view: although President Singh, in his Separate Opinion, seems to support this conclusion (ibid., at p. 153), this is contradicted by Judge Sette-Camara when he argues that ‘I firmly believe that the non-use of force as well as non-intervention... are not only cardinal principles of customary international law but could in addition be recognised as peremptory rules of customary international law which impose obligations on all States’ (Separate Opinion, ibid., at p. 199; emphasis added). The jus cogens character of the prohibition of the use of force was maintained by Judge Elaraby in his Separate Opinion in the Legality of the Wall Advisory Opinion (supra n. 138, at para. 3.1) and by Judge Simma in the Oil Platforms case (Separate Opinion, supra n. 138, at para. 9). Fifth preambular paragraph of the Declaration on the Definition of Aggression (GA Res. 3314 (XXIX), 14 December 1974). This is the opinion of R. Ago, ‘Eight Report on State Responsibility’, ILC Yearbook (1980-II, pt. 1) p. 44; R. Müllerson, ‘Jus ad bellum: Plus Ça Change (Le Monde) Plus C’Est la Même Chose (Le Droit)?’, 7 Journal of Conflict and Security Law (2002) p. 169; and N. Ronzitti, Diritto internazionale dei conflitti armati (Turin, Giappichelli 2006) p. 33. See also the Report of the International Law Commission on the work of its fifty-third session, supra n. 2, at p. 283. It is to be recalled that according to Art. 2 of the Definition of aggression, the Security Council may determine that some uses of force do not amount to aggression if such acts or their consequences are not of sufficient gravity. One cannot see why the same rationale should not apply to threats, too. This argument finds support in the travaux préparatoires of the Definition of aggression. Some delegations suggested during the negotiations that at least some threats (those which are ‘of a certain magnitude’ and are ‘directed against the territorial integrity or political independence of another State or against the territorial integrity or political status of a territory under an international regime’) amounted to aggression. On the other hand, the delegations that opposed the inclusion of the threat of aggression in the definition did so only because they feared that this could be used as a pretext to commit aggressive acts under the cloak of self-defence (Report of the 1956 Special Committee on the Question of Defining Aggression, UN Doc. A/3574, GAOR, twelfth session, Suppl. No. 16, p. 7, paras. 53–56). Report of the International Law Commission on the work of its thirty-second session (5 May–25 July 1980), UN Doc. A/35/10, GAOR, thirty-fifth session, Suppl. No. 10, p. 44. According to the Commission, the common features of these less serious forms of the use of force are their limited character ‘as regards both duration and the means employed’ and the purpose of eliminating a ‘grave and imminent danger to the State, some of its nationals or simply to human beings’ which the target state is unable or unwilling to eliminate. Supra nn. 149 et seq. and corresponding text. Y. Kawasaki, ‘Was the 1910 Annexation Treaty Between Korea and Japan Concluded Illegally?’, 3 Murdoch University Electronic Journal of Law (1996), at >www.murdoch.edu.au/elaw/issues/v3n2/kawasaki.html<. Tokyo Judgment, supra n. 3, at pp. 38–39. Ibid., at pp. 246–247, 463. After the outbreak of World War II, Czechoslovakia, France and Britain explicitly declared that the Munich Treaty was void. Czechoslovakia regarded the Sudeten region as a territory temporarily occupied by Germany. The invalidity of the Munich and Berlin Agreements on grounds of duress was upheld by several Dutch courts which had to determine whether the Sudeten Germans had acquired German nationality as a consequence of those treaties: see District Court of Arnhem, Nederlands Beheers-Instituut v. Nimwegen and Männer (18 November 1952), 18 ILR (1951) p. 250 (the decision was however quashed by the Court of Appeal on 18 November 1952: ibid., at p. 251); District Court of The Hague, Amato Narodni Podnik v. Julius Keilwerth Musikinstrumentenfabrik (31 December 1955 and 11 December 1956), 24 ILR (1957) p. 437; Judicial Division of the Council for the Restoration of Rights, Ratz-Lienert and Klein v. Nederlands Beheers-Instituut (29 June 1956), 24 ILR (1957) pp. 537–539 (in a similar decision, the Judicial Chamber of the Council for the Restoration of Legal Rights decided that the petitioners could not be regarded as enemy nationals but it did not explicitly base its decision on the invalidity on the 1938 Treaty: ibid., at pp. 431–433). In Land Registry of Waldsassen v. The Towns of Eger (Cheb) and Waldsassen (23 March 1965), the Supreme Court of Bavaria did not take position on the question of the invalidity of the Munich Agreement, although the argument was made by the defendants (44 ILR (1972) p. 55). The above mentioned decisions are commented by B. Conforti and A. Labella, ‘Invalidity and Termination of Treaties: The Role of National Courts’, 1 EJIL (1990) pp. 51–55. Nuremberg Judgment, supra n. 14, at pp. 196–197. Tokyo Judgment, supra n. 3, at pp. 334–335, 340–341. On 13 October 1998, the North Atlantic Council issued an Activation Order for Phased Air Operation and Limited Air Option to begin in ninety-six hours should the Federal Republic of Yugoslavia not fully comply with SC Res. 1199 of 23 September 1998 (NATO had already issued an Activation Warning on 24 September). Under such threat to use force, Yugoslavia signed two agreements: one with NATO on 15 October, which established a NATO air surveillance mission over Kosovo and defined the technical aspects of the operation, and another the following day with the Organization for Security and Co-operation in Europe (OSCE) establishing the Kosovo Verification Mission in order to monitor compliance with SC Res. 1199. The agreements were subsequently endorsed by the Security Council in Res. 1203 of 24 October 1998. Yugoslavia came into compliance with the agreements and Res. 1199, but subsequently security forces started reentering Kosovo. The North Atlantic Council thus decided to maintain the Activation Order for air strikes. Notwithstanding the on-going threat of force (see NATO Press release (99) p. 11, paras. 6–7; NATO Press release (99) p. 12, para. 5; NATO Press release (99) p. 20; NATO Press release (99) p. 21), and unlike the Kosovo Albanian delegation, Yugoslavia did not sign the Rambouillet Interim Agreement for Peace and Self-Government in Kosovo of February 1999. After the outbreak of the hostilities, threats were combined to the use of force: in particular, the threat was to continue the use of force should Yugoslavia not accept a detailed schedule of withdrawals (the NATO spokesman’s statement can be read at >www.cnn.com/world/europe/9906/06/kosovo.04/index.html< (6 June 1999)). Yugoslavia eventually accepted the Kumanovo Agreement for the withdrawal of any security forces from Kosovo and the deployment of a NATO-led military force and the Agreement on Political Principles of 3 June 1999. It has been noted that coercion could also originate with a third party, in particular non-state actors (G. Sacerdoti, ‘States’ Agreements with Terrorists in Order to Save Hostages: Non-Binding, Void or Justified by Necessity?’, in N. Ronzitti, ed., Maritime Terrorism and International Law (Dordrecht, Nijhoff 1990) p. 33). Sacerdoti refers to the 1985 Agreement between Egypt and Italy by which the latter accepted the terms of the safe conduct for the Achille Lauro hijackers. ILC Yearbook (1966-II) p. 246. According to the ICJ, ‘[t]here can be little doubt, as implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void’ (Fisheries Jurisdiction, supra n. 46, at para. 24). The Court dismissed Iceland’s argument that the 1961 Exchange of Notes was signed under duress because of lack of sufficient evidence. The same conclusion was reached by the Court in a parallel case (Federal Republic of Germany v. Iceland, Jurisdiction, Judgment of 2 February 1973, ICJ Reports (1973) para. 24). ILC Yearbook (1966-II) pp. 239–240. Of course, the parties might freely negotiate a new treaty in a position of equality and without recurring to threats: as noted by the ILC, ‘[i]f... the treaty were maintained in force, it would in effect be by the conclusion of a new treaty and not by the recognition of the validity of a treaty procured by means contrary to the most fundamental principles of the Charter of the United Nations’ (ILC Yearbook (1966-II) p. 247). As noted by Schachter, ‘[A]rticle 52 was explicitly drafted to ensure that the victim state would not have the option to validate the void treaty. The assumption was that there would be a continuing effect of the threat or use of force’ (‘The Settlement with Iran’, Conference held at the University of Miami School of Law, 6–7 March 1981, 13 Lawyer of the Americas (1981) p. 60). L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law (Helsinki, Finnish Lawyers’ Publishing Company 1988) pp. 294–295. Dinstein, supra n. 27, at pp. 41–42. Lockerbie, Preliminary Objections, Verbatim Record, CR 97/20, 17 October 1997, p. 57. ILC Yearbook (1966-II) pp. 246–247. One of the consequences is that the notion of ‘force’ under Art. 52 is limited to ‘armed force’ and does not extend to political and economic pressures (S.S. Malawer, ‘A New Concept of Consent and World Public Order: “Coerced Treaties” and the Convention on the Law of Treaties’, 4 Vanderbilt Journal of Transnational Law (1970–1971) pp. 16–25). Indeed, Art. 52 only delegitimises ‘imposed’ treaties, and not all unequal treaties. E. Milano, Unlawful Territorial Situations in International Law (Leiden, Nijhoff 2005) p. 244. In Bothe’s words, ‘[a] treaty is only procured by coercion if the use or threat of force is directly intended to bring about the treaty or if the treaty is aimed at maintaining a situation which was created by an illegal use of force’ (M. Bothe, ‘Consequences of the Prohibition of the Use of Force. Comments on Arts. 49 and 70 of the ILC’s 1966 Draft Articles on the Law of Treaties’, 27 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1967) p. 513). In the Memorandum, Iraq reaffirms its acceptance of all relevant resolutions of the Security Council and its commitment to cooperate fully with the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency (text at >www.un.org/NewLinks/uniraq.htm<). White and Cryer, supra n. 27, at p. 280. Ibid. O. Schachter, ‘International Law in the Hostage Crisis: Implications for Future Cases’, in W. Christopher, et al., eds., American Hostages in Iran, The Conduct of a Crisis (New Haven and London, Yale University Press 1985) p. 372. However, Schachter maintains that, even though Art. 52 does not apply to the 1981 settlement agreements because of the particular circumstances of the case, agreements involving a payment to release hostages or property would generally be void because of coercion. Milano, supra n. 191, at pp. 244–245. Ibid., at pp. 243–244. Since the coercion exercised by NATO on Yugoslavia was ‘in violation of the principles of international law embodied in the Charter of the United Nations’, the Kumanovo Agreement is thus null and void under Art. 52 of the Vienna Convention. However, it appears that China implicitly admitted that neither agreement was invalid under Art. 52 by founding its decision not to veto the adoption of SC Res. 1244 of 10 June 1999 (which endorsed the Kumanovo and the 3 June Agreements and decided the establishment of a UN civil administration) on the consent given by Yugoslavia (S. Zappalà, ‘Nuovi sviluppi in tema di uso della forza armata in relazione alle vicende del Kosovo’, 82 Rivista di diritto internazionale (1999) pp. 988–989). The same considerations apply to the support given by the Russian Federation to the conclusion of the Holbrooke Agreements notwithstanding the possible role played by the NATO’s Activation Order in Yugoslavia’s acceptance (S/PV.3937, 24 October 1998, p. 11). In the proceedings before the ICJ in the Legality of use of force case, Yugoslavia invoked the violation of Art. 52 of the 1969 Vienna Convention only in relation to the attempts to coerce it into signing the draft Interim Agreement for Peace and Self-Government in Kosovo, and not to the Holbrooke, Kumanovo or 3 June Agreements (see Legality of use of force, Verbatim Record, CR 99/14, 10 May 1999, pp. 41–44, 60). The Court did not pronounce on the merits of the case but in the decision on provisional measures it declared itself to be ‘profoundly concerned with the use of force in Yugoslavia [which] raises very serious issues of international law’ (Legality of use of force, Order on Request for the Indication of Provisional Measures of 2 June 1999, ICJ Reports (1999) para. 17). See the letter dated 10 November 2006 from the Iranian permanent representative to the UN Secretary-General, by which Iran asked the Security Council to demand Israel to ‘cease and desist immediately’ from the threats of force against the Islamic Republic (supra n. 88, at p. 2). See, e.g., Bosnia and Herzegovina’s requests in its Application to the ICJ in the Genocide case, where, inter alia, it requested the ICJ to declare that Yugoslavia (Serbia and Montenegro) was under an obligation to cease and desist immediately from all threats of force against Bosnia and Herzegovina and to pay reparations for damages to persons, property and the Bosnian economy and environment (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra n. 125, at para. 64(q)(r)). As mentioned above, however, these requests were not reiterated in the Memorial because Serbia and Montenegro had accepted the ICJ jurisdiction under the terms of the Genocide Convention. Remedies against threats are discussed infra, section 5 of this article. The text of the Articles, with commentaries, can be read in Report of the International Law Commission on the work of its fifty-third session, supra n. 2, at pp. 43 et seq. Otherwise the injured third state might be deprived of any redress, as the coerced state might rely on force majeure as a circumstance precluding the wrongfulness of its conduct. Report of the International Law Commission on the work of its fifty-third session, supra n. 2, at p. 167. Ibid. Indeed, ‘[c]ertain situations of duress or coercion involving force imposed on the State may also amount to force majeure if they meet the requirements of article 23. In particular, the situation must be irresistible, so that the State concerned has no real possibility of escaping its effects’ (ibid., at p. 184). The principle is also contained in GA Res. 2734 (XXV) (16 December 1970) and in the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (GA Res. 42/22 (19 November 1987), para. 10). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports (1971) para. 126 (‘The termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law: in particular, no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognize the validity or effect of such relationship, or of the consequences thereof’). The Court referred the erga omnes notion to the effects of non-recognition, not to the character of the breached norm giving rise to the duty of non-recognition. The Court also made clear that the duty of non-recognition does not extend to ‘those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory’ (ibid., at para. 125). Legality of the Wall Advisory Opinion, supra n. 138, at para. 159 (‘Given the [erga omnes] character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction’). This approach is criticised by Judge Higgins in her Separate Opinion, where she argues that ‘[t]he obligation upon United Nations Members of non-recognition and non-assistance does not rest on the notion of erga omnes’ (Judge Higgins’s Separate Opinion, ibid., para. 38). The Court concluded that the duty not to recognize as legal any territorial acquisition resulting from the threat or use of force reflects customary international law (Legality of the Wall Advisory Opinion, supra n. 138, at para. 87). The same view was taken by Judge Skubiszewski in his Dissenting Opinion in the East Timor case (East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports (1995) pp. 262–265), although the majority of the Court did not address the issue. However, it is this commentator’s opinion that the customary character of the duty not to recognize territorial situations created through the mere threat of force (as opposed to the use of force) can be doubted. The practice usually mentioned to provide evidence of the existence of such a customary norm only relates to cases of territorial situations produced by the use, and not he threat, of force. The only instances of territorial acquisitions obtained through the mere threat of force date back to the pre-Charter period, the less controversial examples being the above mentioned annexation of Korea by Japan and the surrender of the Sudeten region by Czechoslovakia to Germany, which were both accepted by the international community (strictly speaking, the Anschluss of Austria to the German Reich on 13 March 1939 was only the indirect result of the Nazi threats: the threat of an invasion caused the Austrian Chancellor Schuschnigg to resign and to be replaced with the Nazi Seyss-Inquart, who eventually signed the law for the reunion of Austria with Germany after German troops had entered Austria (Nuremberg Judgment, supra n. 14, at pp. 192–194, 318)). A recent confirmation of the lack of opinio juris on this issue is contained in the 1991 Declaration on the guidelines on the recognition of new states in Eastern Europe and in the Soviet Union adopted by the Ministries for Foreign Affairs of the European Community member states, which provides that the Community and its member states would not recognize only territorial entities which are a result of aggression, and not of other uses of force, let alone the mere threat of force (31 ILM (1992) p. 1487). As to the relationship between erga omnes obligations and jus cogens, Pellet has pointed out that ‘if all norms of jus cogens are certainly erga omnes, there is no reciprocity; one can think of many obligations erga omnes which could hardly be seen as deriving from peremptory norms’ (‘Can a State Commit a Crime? Definitely, Yes!’, 10 EJIL (1999) p. 429). Supra n. 170. Report of the International Law Commission on the work of its fifty-third session, supra n. 2, at pp. 288–289 (emphasis added). See A. Cassese, International Criminal Law (Oxford, OUP 2003) pp. 111–117; Dinstein, supra n. 27, at pp. 117–125. The threats under examination are of course those against other states. Some threats against persons or groups of persons could amount to breaches of international humanitarian law and entail individual criminal responsibility. Art. 51(2) of the 1977 Protocol I additional to the 1949 Geneva Conventions and Art. 13(2) of Additional Protocol II prohibit threats of violence the primary purpose of which is to spread terror among the civilian population. Furthermore, Art. 75(2)(e) of Additional Protocol I and Art. 4(2)(h) of Additional Protocol II prohibit the threat to commit certain acts against protected persons. The ICJ Nuclear Weapons Advisory Opinion confirmed that ‘[i]f an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law’ (supra n. 33, at para. 78). Nuremberg Judgment, supra n. 14, at p. 223. The invasion and annexation of Austria and the seizure of Czechoslovakia were not charged as ‘aggressive wars’ but as ‘aggressive acts’ or aggressive steps ‘in furthering the plan to wage aggressive wars against other countries’, as they met no or only scarce resistance by the victim states (Nuremberg Judgment, supra n. 14, at pp. 186, 192, 284; see also Indictment, Count One, para. IV(F)(3)). As the Japanese demands were accepted without resistance, the 1940–1941 events wer qualified as ‘acts of aggression’, while the events in 1945 were considered ‘war of aggression’ against France, as the Japanese ultimatum backed by the threat of military action was rejected and the French troops resisted and engaged in fighting (Tokyo Judgment, supra n. 3, at pp. 380–382). See US v. Ernst von Weizsäcker et al. (the Ministries case) (14 April 1949), 16 ILR (1949) p. 347 (‘[i]t is not reasonable to assume that an act of war, in the nature of an invasion, whereby conquest and plunder are achieved without resistance, is to be given more favourable consideration than a similar invasion, which may have met with some military resistance... We hold that the invasion of Austria was aggressive and a crime against peace within the meaning of Control Council Law No. 10’). ILC Yearbook (1954-II) p. 151; ILC Yearbook (1991-I) p. 203. The Draft Code applies to crimes committed by individuals, but — as noted by Koroma — ‘[t]hreat of aggression could be imputed both to an individual and to a State, even if, for the time being, only acts attributable to individuals fell under the code’ (ILC Yearbook (1989-I) p. 295). ILC Yearbook (1991-I) p. 203. The reference to ‘good reason’ was introduced in what was then Art. 13 of the Draft Code in order to distinguish threats from mere verbal excesses (ILC Yearbook (1989-I) p. 291). ILC Yearbook (1993-II, pt. 1) pp. 64 (Australia), 92 (Paraguay), 97 (Turkey), 101 (UK), 103 (US), 108 (Switzerland). See, e.g., Arts. 384–385 of the Armenian Criminal Code, Art. 409 of the Bulgarian Criminal Code, Section 80 of the German Criminal Code, Section 72 of the Latvian Criminal Code, Art. 139 of Moldova’s Criminal Code, Arts. 353–354 of the Russian Federation’s Criminal Code, Arts. 395–396 of Tajikistan’s Criminal Code, Art. 437 of Ukraine’s Criminal Code, Art. 151 of Uzbekistan’s Criminal Code. Texts at >www.legislationline.org<. The use or threat of force must be aimed at changing the Constitution of a foreign state or to break up its territorial integrity. The Tribunal has thus jurisdiction over ‘the abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country’ (Art. 14(c)). Even more clearly, Law No. 7 criminalizes ‘using the country’s armed forces against the brotherly Arab countries threatening to use such forces’ (quoted in Cassese, supra n. 53, at p. 448). See C. Kress, ‘The Iraqi Special Tribunal and the Crime of Aggression’, 2 Journal of International Criminal Justice (2004) pp. 347–352. Cassese, supra n. 213, at p. 114. A proposal on the definition of aggression submitted by Bosnia and Herzegovina, New Zealand and Romania at the Rome Conference on the ICC also suggested that ‘planning for aggression that is never carried out would not be enough to found individual criminal responsibility for this crime’ (Preparatory Commission for the International Criminal Court, PCNICC/2001/WGCA/DP.2, 27 August 2001, p. 3). Amendments can be considered only after seven years after the entry into force of the Statute and their adoption requires a two third majority of states parties (Art. 121). Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, fifth session, ICC-ASP/5/SWGCA/INF.1, pp. 9–10; Report of the Special Working Group on the Crime of Aggression, fifth session, ICC-ASP/5/SWGCA/1, 29 November 2006, p. 2 (at >www.icc-cpi.int/asp/aspaggression.html<). The draft definitions submitted by the States Parties to the ICC Statute can be read at >www.un.org/law/icc/documents/aggression/aggressiondocs.htm<. According to the ILC, ‘[t]here would... be nothing to prevent a State threatened with aggression from taking any preventive measure not involving the use of force, including recourse to the Security Council and possibly an appeal to regional solidarity arrangements’ (ILC Yearbook (1989-II, pt. 2) p. 68). By including the expression ‘threat to the peace’ in Art. 39, the Charter has authorized the Security Council to take not only anticipatory, but also preventive actions, regardless of the imminence of the threat (‘In Larger Freedom: Towards Development, Security and Human Rights for All’, Report of the Secretary-General, UN Doc. A/59/2005 (21 March 2005), p. 33). Repertoire of the Practice of the Security Council, Suppl. 1966–1968 (New York, United Nations 1971) p. 108. The representative of Greece argued that ‘the immediate task of the Security Council was to prevent the use of force and to put an end to threat of its use’ (ibid., at pp. 108–109). According to the USSR, ‘[u]nder Article 2, paragraph 4 of the Charter, Cyprus had every right to request the Security Council’s protection from the threats against its independence and territorial integrity’ (Repertoire of the Practice of the Security Council, Suppl. 1964–1965 (New York, United Nations 1968) p. 201). Letter dated 10 November 2006 from the permanent representative of the Islamic Republic of Iran to the UN Secretary-General, supra n. 88, at p. 2. McCoubrey and White, supra n. 7, at p. 61. M.A. Myers, Sr., ‘Deterrence and the Threat of Force Ban: Does the UN Charter Prohibit Some Military Exercises?’, 162 Military L Rev. (1999) pp. 133, 140. F.L. Kirgis, ‘North Korea’s Withdrawal from the Nuclear Nonproliferation Treaty’, ASIL Insights, January 2003, >www.asil.org/insights/insigh96.htm<. See also M. Asada, ‘Arms Control in Crisis? A Study of the North Korean Nuclear Issue’, 9 Journal of Conflict and Security Law (2004) p. 343. This conclusion is supported by the ICJ decision in the Corfu Channel case, supra n. 49, at p. 31. Significantly, para. 3 of the USSR draft definition of aggression provided that ‘[i]n the event of the mobilization or concentration by another State of considerable armed forces near its frontier, the State which is threatened by such action shall have the right to recourse to diplomatic or other means of securing a peaceful settlement of international disputes. It may also in the meantime adopt requisite measures of a military nature similar to those described above, without, however, crossing the frontier’ (UN Doc. A/C.6/L.208 (5 January 1952), GAOR, sixth session, Annexes, Agenda item 49, at p. 13). N.D. White and H. McCoubrey, ‘International Law and the Use of Force in the Gulf’, 10 International Relations (1991) p. 351. Blechman and Cofman Wittes, supra n. 26, at p. 24. According to Spain, ‘[t]he Iraqi troop movements and the threat they implied forced the States in the region... to react immediately through preventive and defensive deployment to protect Kuwait’ (S/PV.3438, 15 October 1994, p. 8). See also the declaration by the UK representative in the Security Council (S/PV.3438, 15 October 1994, p. 11). Nicaragua, Merits, supra n. 62, at para. 249. Art. 50(1) of the ILC Articles on State Responsibility. See also the ICJ Nuclear Weapons Advisory Opinion, supra n. 33, at para. 46. Bothe argues that ‘the power to authorize the use of force in the case of a mere threat lies with the Security Council alone’, since ‘[s]uch case remains below the threshold at which a state may decide to use force unilaterally’ (M. Bothe, ‘Terrorism and the Legality of Pre-emptive Force’, 14 EJIL (2003) p. 229). According to Singh and McWhinney, a UN member state ‘could not possibly be permitted to use force against a threat in the face of the clear provisions of Article 2(3), (4) and Chapter VI of the Charter’ (N. Singh and E. McWhinney, Nuclear Weapons and Contemporary International Law (Dordrecht, Nijhoff 1989) p. 89). These authors add that ‘[a]s the general intention of the Charter is to rule out force, including the threat of force, that aspect of self-defence which is based on a threat has been expressly negatived by providing that the exercise of the right before an armed attack takes place would be impaired by other provisions of the Charter and would therefore not be permissible’ (ibid., at p. 90). See also the Dutch AIV/CAVV Advisory opinion on pre-emptive action, according to which ‘[i]t is clear from an analysis of the normal meaning of the terms used in Article 51 that an “armed attack” is not the same as “a threat of an armed attack”’ (Netherlands Advisory Council on International Affairs/Advisory Committee on Issues of Public International Law, ‘Pre-emptive Action’, Advisory opinion, July 2004, >www.aiv-advice.nl<, at p. 15). ILC Yearbook (1989-II, pt. 2) p. 68. Some states have quoted verbatim the ILC’s words in the proceedings of the Nuclear Weapons Advisory Opinion (written statement of the Government of Mexico, 19 June 1995, p. 8; Memorial of the Government of Nauru, 15 June 1995, p. 15; oral statement of Indonesia, Verbatim Record, CR/95/25, 3 November 1995, p. 26). See, e.g., the position of the Non-Aligned Movement, 28 February 2005 and 21 June 2005, at >www.un.int/malaysia/NAM/NAM.html<. Furthermore, Indonesia argued that ‘nothin in Article 51 sanctions a standing threat — a threat in futuro — by one State against another, named or unnamed. It sanctions only the use of retaliatory force once an armed attack occurs’ (Nuclear Weapons, Verbatim Record, CR/95/25, 3 November 1995, p. 18; see also Nauru’s Memorial, 15 June 1995, p. 3). In DRC-Uganda, the DRC argued that ‘any military action based on the need to prevent or anticipate forthcoming attacks cannot be justified on the basis of self-defence’ (DRC-Uganda, Verbatim Record, CR 2005/12, 25 April 2005, p. 18). The opposite interpretation ‘completely distorts the contemporary conception of self-defence and, indirectly, the entire system prohibiting the use of force established by the United Nations Charter’ (Verbatim Record, CR 2005/3, 12 April 2005, pp. 25, 35–37). However, the DRC seems to implicitly acknowledge a right of anticipatory self-defence when it claims that Uganda has no right of self-defence because it failed to demonstrate that ‘an attack had been carried out, was on the point of being carried out, or was even planned against it’ (Verbatim Record, CR 2005/3, 12 April 2005, p. 36). Nicaragua, Merits, supra n. 62, at para. 194. DRC-Uganda, supra n. 140, at para. 143; Verbatim Record, CR 2005/7, 18 April 2005, pp. 28–29. DRC-Uganda, supra n. 140, at para. 143. Indeed, in September 1998 Uganda augmented its forces in eastern Congo and secured control of airfields and river ports in the region as a measure of self-defence against, inter alia, ‘irresponsible threats of invasion’ by the joint Congolese and Sudanese armies (ibid., at paras. 39, 109; and Uganda’s Counter-memorial, vol. I, 21 April 2001, pp. 40–43). See also the DRC position, Verbatim Record, CR 2005/3, 12 April 2005, pp. 24–25. DRC-Uganda, supra n. 140, at para. 148. Although the terminology is controversial in this field, I will refer to self-defence against imminent attacks as ‘anticipatory’ or ‘pre-emptive’, and to self-defence against non-imminent attacks as ‘preventive’. As rightly observed, the 2002 US National Security Strategy (infra n. 255) refers to ‘pre-emptive’ self-defence with regard to non-imminent attack because it tries to expand the concept of ‘imminence’ to include the ‘new threats’ (AIV/CAVV Advisory opinion, supra n. 240, at p. 5). ‘A More Secure World: Our Shared Responsibility’, Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2 December 2004), p. 63. ‘In Larger Freedom’, supra n. 229, at p. 33. Among the states supporting anticipatory self-defence, one can mention Australia, Liechtenstein, Singapore, Switzerland, the UK and the US (C. Gray, ‘A Crisis of Legitimacy for the UN Collective Security System?’, 56 ICLQ (2006) p. 163). Some delegations also made this point during the negotiation of the Definition of aggression (Report of the 1956 Special Committee on the Question of Defining Aggression, supra n. 172, at p. 7). In legal literature, see C.H.M. Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, 81 Recueil des Cours (1952-II) pp. 500–501; J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace (Oxford, Clarendon Press 1955) p. 315; D.W. Bowett, ‘Collective Self-Defence Under the Charter of the United Nations’, 32 BYIL (1955–1956) pp. 148; S.M. Schwebel, ‘Aggression, Intervention and Self-Defence in Modern International Law’, 136 Recueil des Cours (1972-II) pp. 478–483; R. Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press 1994) p. 242; C. Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ 4 San Diego ILJ (2003) p. 15; Ronzitti, supra n. 170, at pp. 35–36; T. Gazzini, ‘The Rules on the Use of Force at the Beginning of the XXI Century’, 11 Journal of Conflict and Security Law (2006) pp. 328–329; T.D. Gill, ‘The Temporal Dimension of Self-Defence: Anticipation, Pre-emption, Prevention and Immediacy’, 11 Journal of Conflict and Security Law (2006) p. 366. Letter from Daniel Webster to Henry S. Fox (24 April 1841), 29 British and Foreign State Papers pp. 1137–1138. Examples of imminent threats are an advancing army or ships on the horizon or a large-scale mobilisation of troops by an unfriendly neighbouring state on its frontiers (W.H. Taft, IV, ‘The Legal Basis for Preemption’, 18 November 2002, at >www.cfr.org/publicationphp?id=5250<). See Greenwood, supra n. 249, at p. 16; A.D. Sofaer, ‘On the Necessity of Pre-emption’, 14 EJIL (2003) p. 220. It was for this reason that Switzerland opposed to the inclusion of the threat of aggression in the Draft Code of Crimes against the Peace and Security of Mankind, as ‘by criminalizing the threat of aggression it may encourage recourse to force in exercise of the right to self-defence, with all the unfortunate consequences that this may entail’ (ILC Yearbook (1993-II, pt. 1) p. 108). Oral statement of the British Attorney General, Nuclear Weapons, Verbatim Record, CR/95/34, 15 November 1995, p. 34. The National Security Strategy of the United States of America, 20 September 2002, at >www.whitehouse.gov/nsc/nss.pdf< (hereinafter ‘US National Security Strategy (2002)’), p. 15. The 2006 version of the document reaffirms the place of ‘pre-emption’ (The National Security Strategy of the United States of America, March 2006, >www.whitehouse.gov/nsc/nss/2006/nss2006.pdf<, p. 23). Unlike the 2002 document, the 2006 version makes no express reference to international law or the UN (C. Gray, ‘The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA’, 5 Chinese JIL (2006) p. 563). ‘Remarks by the President at the 2002 Graduation Exercise of the United States Military Academy at West Point’, 1 June 2002, available at >www.nti.org/e_research/official_docs/pres/bush_wp_prestrike.pdf<. Ibid. White, N.D. White and J. Morris, eds., International Conflict and Security Law. Essays in Memory of Hilaire McCoubrey (Cambridge, CUP 2005) supra n. 100, at p. 236. The example made in the Strategy is the acquisition of weapons of mass destruction by a ‘rogue state’ that supports international terrorism (US National Security Strategy (2002), supra n. 255, at pp. 14–15). ‘A More Secure World’, supra n. 248, at p. 63; ‘In Larger Freedom’, supra n. 229, at p. 33; AIV/CAVV Advisory opinion, supra n. 240, at p. 20. It has been rightly argued that ‘[i]f proportionality is applicable in the case of vague threats, the very concept of proportionality disappears; it loses all meaning. Any counter-measures whatsoever may become appropriate to deal with an undefined threat’, especially if the proportionality of the counter-measures should be left to the ‘subjective sentiment’ of the state which considers itself threatened (remarks by O. Corten on behalf of the DRC, DRC-Uganda, Verbatim Record, CR 2005/3, 12 April 2005, pp. 46–48). According to Indonesia, the threat of nuclear weapons can never satisfy the principle of proportionality, since ‘the magnitude of the event to which a preemptive strike is being made is necessarily a matter of speculation’ (Nuclear Weapons, Verbatim Record, CR/95/25, 3 November 1995, p. 34). N. Ronzitti, ‘Forza (uso della)’, Enciclopedia delle discipline pubblicistiche, Vol. VII (Turin, UTET 1991) p. 18. A. Chayes, The Cuban Missile Crisis (London, OUP 1974) p. 65. Taft, supra n. 251. The Legal adviser’s words are in clear contrast with those of the Secretary of State, according to which the US ‘will seek to dissuade any potential adversary from pursuing a military build-up in the hope of surpassing, or equalling, the power of the United States and our allies’ (‘Dr. Condoleeza Rice Discusses President’s National Security Strategy’, 1 October 2002, >www.whitehouse.gov/news/releases/2002/10/20021001-6.html<). Lord Goldsmith argued that ‘[f]orce may be used in self-defence if there is an actual or imminent threat of an armed attack’. However, ‘there must be some degree of imminence’, which may depend on the circumstances. He also added that, if the US doctrine of a right to use force to prevent future dangers ‘means more than a right to respond proportionately to an imminent attack... this is not a doctrine which... exists or is recognised in international law’ (54 ICLQ (2005) p. 768). The only states that appear to have somehow supported the doctrine of preventive selfdefence are Australia, Israel, Japan and Russia (Gray, supra n. 255, at pp. 566–569). North Korea also claimed it was entitled to a preventive strike in the face of a US impending attack (Keesing’s Contemporary Archives (2003) p. 45238). Also, in January 1997 Turkey threatened to carry out a preventive military strike on any air defence system installed on Cyprus (‘Athens and Ankara’, The Times, 13 January 1997). For states against any wide interpretation of Art. 51 of the Charter, see Gray, supra n. 249, at pp. 163–164. See, e.g., Art. 5 of the North Atlantic Treaty, Art. V of the Brussels Treaty establishing the Western European Union, Art. IV of the ANZUS Treaty, Art. IV(1) of the SEATO Treaty and Art. 4 of the Warsaw Pact. Emphasis added.