Tiempo

There is little indication in the materials examined in this chapter to suggest that the legal scope of the inherent right of self-defence during the period 1919 to 1939 altered from its pre-existing parameters of an imminent threat, or use, of armed force. State practice was to exercise this right in response to this conduct. A self- defending state did wait for either form of conduct to fulfil any particular conceptual categorisation of force, such as „aggression‟, „invasion‟, or „war‟ before exercising this right. This feature of state practice continued to reflect the human defensive instinct of defending one‟s self in the face of imminent physical harm, as described earlier in Chapter 2. The legal scope of the right reflected this most basic human instinct, as Pufendorf pointed out:

„And this holds good not merely if an enemy has undertaken to use every extremity against me, but also if he simply wishes to injure me within certain limits, for he has no greater right to do me a slight injury than a severe one‟.362

361

This battle is commonly referred to as the Battle of Khalkhin Gol and was part of the Soviet- Sino War of 1939 over their respective borders and economic influence. See Coox, above n 258.

My analysis of state practice in the examined period suggests that the legal scope of the inherent right of self-defence was determined by the operation of the international customary law principles of immediacy and necessity. The clearest documented evidence of the opinio juris of states which shows that the exercise of this right was considered to have been restricted by these principles were the negotiations surrounding the General Treaty, as examined in sub-chapter 4.2.1.4. Statements by the United States and Great Britain, with which Secretary Kellogg suggested to the United States Senate that other negotiating states concurred as reflecting customary law, establish that a threat, or use, of armed force formed the legal scope of the right.

In light of the historic operation of the customary law principles of immediacy and necessity and in the absence of the emergence of any other feature of international law which determined the legal scope of the inherent right of self-defence in the period examined, it seems logical to attribute the legal scope to the continuing operation of these two principles.

4.4.2 The legal commencement of an armed attack between sovereign states It will be recalled that in Chapters 2 and 3 that I identified a possible basis for defining in international law the legal commencement of an armed attack between sovereign states. My definition was derived from the fulfilment of the international customary law principles of immediacy and necessity when a state was faced by an imminent threat of armed force. At this point in time, the inherent right of self- defence was triggered in the threatened state. I have in those chapters expressed the basis for my preference for identifying this point in time as defining my

examination over any earlier, or later, point in time. Can my definition continue to be applied to the period examined?

The inherent right of self-defence and the international customary law principles of immediacy and necessity remained the essential features of the international law of self-defence during this period. Further, state practice in this period demonstrated that the legal scope of this right remained the same as in the periods examined in Chapters 2 and 3. Thus, the inherent right continued to be first exercised at the same time as in the preceding periods, that is, with the manifestation of an imminent threat of armed force. Insofar as these considerations go, it would seem that my definition has relevant grounds for application in the period examined.

The new positive legal right in favour of states created by the General Treaty in 1928 to remain free from the use of war in their international relations appears to support this definition. This is because the final point in time at which this new legal right was either protected, or violated, by war was the identical point in time as that identified by my definition.

4.5 Conclusion

It can be seen from the period studied that increasing restrictions were placed on the sovereign right to use war when exercised for the purpose of settling legal disputes (which culminated in the prohibition of war in 1928 by the General Treaty). In contrast, the international customary law principles of immediacy, necessity and proportionality remained constant and uncontroversial in their restriction of the exercise of the inherent right of self-defence. These customary law principles and the functions they fulfilled can be regarded as having

recognised and preserved the natural practice (and instinct) of states to exercise this right against an imminent threat of armed force to avoid being physically attacked. The continuing recognition of this right by customary law can be regarded as balancing international law‟s broader objective of restricting war per se with the recognition that the right to resort to defensive war must remain part of the international legal framework.

It appears from the material available in the period examined that the rationale for the inherent right of self-defence in international law remained consistent with that demonstrated in Chapters 2 and 3. As seen, an illustration of this rationale was particularly evident in the negotiations for the General Treaty in 1928 in which the right was treated as a manifestation of state sovereignty. The United States and Great Britain thought that this right was incapable of detraction by that, or any other, treaty. This rationale holds that the sovereign state, as the principal entity in international law – indeed, its creator – possessed an intrinsic right from the outset to use war to defend itself from an imminent threat, or use, of armed force.

Further, the inherent right of self-defence was considered in the negotiations for that treaty as immutable, meaning that an express mentioning of this right as an exception to the prohibition of war was not considered necessary. Therefore, the totality of evidence explored in this chapter tends to support the conclusion that the answer to my first supporting question of law, as provided in Chapters 2 and 3, are capable of remaining applicable to the period examined. Thus, the legal basis for concluding that the rationale for the inherent right of self-defence in international law in the period 1919 to 1939 was state sovereignty remained.

Similarly, the legal scope of the inherent right of self-defence appears to have been treated with the same consistency by states and international law in this period. The practice and opinio juris of states in self-defence was to exercise this right against an imminent threat, or use, of armed force, as illustrated in the negotiations for the General Treaty and demonstrated in state practice. The absence of emergence of any other substantive international law rules which influenced the governance of the exercise of this right suggests that the operation of the customary law principles of immediacy and necessity continued to naturally form this right‟s legal scope.

For these reasons, I conclude that the answer to my second supporting question of law given in Chapters 2 and 3 remains applicable to the period examined, namely, that the rationale for anticipatory self-defence in international law to 1939 can be attributed to state sovereignty. Also for these reasons I conclude that the answer given in Chapters 2 and 3 to my third supporting question of law remains applicable to the period examined, that is, international customary law to 1939 maintained the principles of immediacy, necessity and proportionality to restrict the exercise of the inherent right of self-defence.

There appears to be no impediment in the practice and opinio juris of states in self- defence, or the substantive rules of international law, in the period examined which materially detracts from the basis upon which I previously proposed a definition of the legal commencement of an armed attack in international law. The hypothesis made in those chapters which explore the possibility that a time before, or after, the fulfilment of the international customary law principles of immediacy and necessity might offer a more appropriate time at which such a definition might

apply remain valid in the period examined. I therefore conclude that the answer previously given in response to my fourth supporting question of law may be applied to international law as it had developed to 1939. My definition suggests that an armed attack commenced as a matter of law in 1939 when the customary law principles of immediacy and necessity were fulfilled by an imminent threat of armed force directed against the state.

A new awareness of the relevance of anticipatory self-defence to the prohibition of war in the General Treaty has been suggested in this chapter. A closer observance of an exercise of the inherent right of self-defence against an imminent threat of armed force after the General Treaty demonstrates that this right not only fulfilled its historic function of protecting the state from the threat of war, but may also been seen as protecting a new legal right of states to remain free from the use of war after 1928. This right was derived as a corollary from the prohibition of war in that treaty.

It should, however, be understood that the protection afforded to this new legal right by anticipatory self-defence did not expand the legal scope of the inherent right of self-defence, or alter the circumstances in which anticipatory self-defence was considered lawful in international law. Rather, its protection arose naturally from the operation of anticipatory self-defence.

My observation of this new legal right and of the new function fulfilled by anticipatory self-defence in protecting it will be of particular relevance in Chapter 5, as the same reasoning will be applied to the prohibition of the threat, or use, of force created by Article 2(4) of the Charter. The relevance of this observation to

my thesis is that an implied extinguishment of anticipatory self-defence in 1945 by Article 51 would have eliminated its protection of the new legal right of states gained in that year to remain free from the threat, or use, of force which arose as a corollary from the prohibition in Article 2(4). As this observation is a new offering to the existing scholarly debate, the new consequence I have identified of an implied extinguishment of anticipatory self-defence in 1945 has not previously been raised. This consequence will be examined in Chapters 5 and 6.

The final issue identified in Chapters 2 and 3 are the two views which may be taken of the effect of international customary law‟s recognition of the inherent right of self-defence and the consequent incorporation of this right into international law. One view identified was that this process restricted the substantive content of customary law to the principles of immediacy, necessity and proportionality. The other view was that this process formed these customary law principles, but also replicated the inherent right of self-defence in customary law to form a „customary law right of self-defence‟.

As with Chapters 2 and 3, the materials examined in this chapter and the practice and opinio juris of states in self-defence appear to continue to be more consistent with the first view than the second, for the same reasons provided in those previous chapters. There is no reference in the materials examined in this chapter to a „customary law right of self-defence‟, nor to states relying on such a right to repel an imminent threat, or use, of armed force in their practice. The evidence in this chapter of the substantive content of customary law favours a conclusion that it consisted of the three principles of immediacy, necessity and proportionality which

functioned to restrict an exercise of the inherent right of self-defence to an imminent threat, or use, of armed force.

The materials examined in Chapters 2, 3 and 4 provide an important preparatory step towards answering my central question of law at its first applicable time, being in 1945 with the creation of the Charter. The Charter will be examined in Chapter 5. However, as of 1939, my research provides a legal basis for favouring the conclusion that „anticipatory self-defence‟ in international law can most appropriately be described as a manifestation of the inherent right of self-defence when this right was exercised against an imminent threat of armed force.

Chapter 5

The use of force between states – 1945 to the present

5.1 Introduction

The purpose of this chapter is to use the answers to my central and supporting questions of law as a new legal prism through which to view the international legal framework created in 1945, insofar as it pertains to the question posed by my thesis. To facilitate this purpose, I will consider the divisions in the existing scholarly debate in respect of the question posed by my thesis until Chapter 6. In that chapter, my new legal prism will be applied to this debate to see whether its divisions might be reconciled, or at least the distance between them reduced, by it.

The first part of sub-chapter 5.2 will examine Article 2(4) of the Charter to identify the nature of the prohibition of the threat, or use, of force created in 1945 and Chapter VII which created the enforcement authority of the Security Council of the United Nations. This part of sub-section 5.2 will complete my examination of that aspect of international law which relates to the use of force other than by exercising the inherent right of self-defence. The second part of sub-chapter 5.2 will examine Article 51 of the Charter and its travaux preparatoires to explore how and why the intention of the negotiating states to recognise the inherent right of self-defence and to protect it against impairment was formed. I will also explore how the answer to my fourth supporting question of law could apply to the words „if an armed attack occurs‟ in this article.

In sub-chapter 5.3, I will integrate the answers to my central and supporting questions of law with my examination of Articles 2(4) and 51 of the Charter in sub-chapters 5.2 and 5.3 to offer a new legal basis in 1945 for the view that anticipatory self-defence coexisted with the Charter.

5.2 The Charter of the United Nations 1945

The Charter has been seen as the culmination of international law‟s process of restraining the sovereign right to use war for purposes other than self-defence.363 The conduct finally prohibited by Article 2(4) of the Charter, being the threat, or use, of force, correlated with the conduct against which the inherent right of self- defence had been exercised throughout the history of international law.364 In the proceeding sub-chapters, the legal significance of this correlation will become apparent. A brief overview of the structure of those parts of the Charter relevant to my thesis is helpful.

Of the 19 chapters of the Charter, the most relevant to my thesis are Chapters I and VII. The Preamble of the Charter renounces war, requires armed force not to be used except in the common interest and commits the United Nations to the international rule of law by requiring it „to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained‟. Chapter 1 specifies the purposes of the

United Nations. It was constituted by two articles which expressed the commitment of the international community to the peaceful settlement of

363 _{Institut de Droit International, Present Problems of the Use of Force in International Law,}

Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67-165, 71 [1]-[2].

364

Brownlie, above n 8 (1963), 112; Randelzhofer „Article 51‟ in Simma (ed), above n 7, 789 [3]; McCormack, „The Use of Force‟ in Blay, Piotrowicz and Tsamenyi (eds), above n 6, 226-228 and Cassese, above n 8, 354.

international disputes, collective security, the prevention and removal of threats to the peace, the suppression of acts of aggression and the prohibition of the threat, or use, of force. The interpretation and application of the articles of the Charter must be made with the objective of fulfilling these purposes.365

Chapter VII exclusively reserves to the Security Council the authority to determine threats to, or breaches of, the peace and acts of aggression.366 The Security Council decides on measures to be taken to „restore international peace and security‟.367 Members of the United Nations are required to provide military, or other, assistance to the Security Council if the use of force is authorised to restore international peace and security. These articles of the Charter, insofar as they are relevant to this thesis, will now be examined. Article 51, which appears in Chapter VII of the Charter, will be examined in sub-chapter 5.2.2.1.

5.2.1 The prohibition of the use, or threat, of force 5.2.1.1 Article 2(4)

Article 2(4) of the Charter states:

„All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.‟368

365 _{Article 18, 24(4), 26, 31(1),(2) and (3)(b) of the Vienna Convention on the Law of Treaties,}

opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

366

Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67-165, 74 [6].

367_{Legality of Nuclear Weapons, above n 23, [38]. See also Thomas Franck, (1988) „Legitimacy in}

the International System‟ 82 American Journal of International Law 705, 711; Ruth Wedgwood, (2000) „Unilateral Action in the UN System 11 European Journal of International Law 349, 351; Ruth Wedgwood, (2003) „The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence 97 American Journal of International Law 576, 577 and Anne-Marie Slaughter, (2005) „Security, Solidarity and Sovereignty: The Grand Themes of UN Reform 99 American Journal of International Law 619, 626.

368 _{Article 2(4) of the Charter of the United Nations, opened for signature 26 June 1945, 59 Stat}

Article 2(4) prohibited the threat, or use, of armed force. Such force need not satisfy any particular conceptual categorisation of force, such as „armed attack‟, „aggression‟, „invasion‟ or „war‟ to constitute a violation of the article.369

This prohibition is absolute, insofar as it is used against the territorial integrity, or political independence, of a state. It appears to eliminate the uncertainty surrounding the scope of the prohibition of „war‟ created by Article I of the

General Treaty for the Renunciation of War 1928.370

The prohibition against the threat, or use, of force is generally accepted as a rule of