CYIL 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE

force by a State against the sovereignty, territorial integrity or political independence

of another State, or in any other manner inconsistent with the Charter of the

United Nations, as set out on this Definition”. According to the Preamble of 1974

Definition of Aggression, “any serious violation of the UN Charter on the use of

force is aggression.” Of course there is a rather complicated problem of interpretation

of what constitutes just such a serious violation of Art. 2 (4) and who will decide it?

The Security Council? Very important also is the provision of Art. 2: “The first use

of armed force by a State contravention of the Charter shall constitute

prima facie

evidence of an act of aggression, although the Security Council may in conformity

with the Charter conclude that a determination that an act of aggression has been

committed would not be justified in the light of other relevant circumstances including

the fact that the acts concerned or their consequences are not of sufficient gravity.” It

is not quite clear if the “sufficient gravity” is a matter for the UNSC only to decide, or

if the states also should be taken into consideration with regard to the occurrence of

an act of aggression. The relationship between “armed attack” and “act of aggression”

has so far reached no clear clarification. The views expressed on this were and still are

rather diverging.

The Thirteen Power proposal for the Special Committee on the Question of

defining Aggression in fact included armed attack in the sense of Art. 51 of the UN

Charter into the notion of armed aggression as it’s “most serious and dangerous form,

or at least equated both of these terms”.

The Six Powers proposal was sceptical

with regard to the possibility of a definition of an “armed attack”, stating that the

task of the Special Committee was only to clarify the meaning of “aggression” for

purposes of the UNSC Council under Art. 39. Art. 1 of this Six Powers proposal

stated: “Under the Charter of the United Nations, aggression is a term to be applied

by the Security Council appropriate in the exercise of its primary responsibility…

under Art. 24 and its functions under Art. 39.”

It would be difficult to deny that any “armed attack” according to Art. 51 of

the UN Charter also constitutes an “act of aggression” in the sense of Art. 39 and

of the 1974 Definition of Aggression. The question to reply to is whether any act of

aggression also represents an armed attack and if the 1974 Definition of Aggression

would apply directly to the notion of “armed attack”. Res. 3314/XXIX, introducing

the 1974 Definition of Aggression, calls the attention of the UNSC to this Definition

and recommends that it should, as appropriate, take account of that Definition as

guidance in determining, in accordance with the Charter, “the existence of an act of

aggression”. This assertion certainly requires additional clarification. The Preamble

of this Definition explicitly considers aggression as “the most serious and dangerous

form of the illegal use of force.” The notion of aggression in the 1974 Definition

See “Convinced that armed attack (armed aggression) is the most serious and dangerous form of

aggression…” UN Doc. AAC. 134/L. 16 (and Corr.1) Proposal of Colombia, Cyprus Ecuador, Ghana,

Guana, Haiti, Iran, Madagascar, Mexico, Spain, Uganda, Uruguay and Yugoslavia.

UN Doc. A/AC. 134 IL. 17 (and Corr) .