INTERNATIONAL LAW

AND THE
USE OF FORCE BY
STATES
BY

IAN BROWNLIE, Q.C., D.C.L., F.B.A.

CHICHELE PROFESSOR OF PUBLIC INTERNATIONAL
LAW IN THE UNIVERSITY OF OXFORD;
FELLOW OF ALL SOULS COLLEGE, OXFORD;
ASSOCIB DE L'INSTITUT DE DROIT INTERNATIONAL

OXFORD
AT THE CLARENDON PRESS
 TABLE OF CONTENTS
PREFACE V

ABBREVIATIONS AND PERIODICALS REFERRED TO IN TEXT AND BIBLIOGRAPHY XXi

PART I
AN HISTORICAL EXPOSITION OF THE
LEGAL REGULATION OF THE USE OF
FORCE BY STATES
INTRODUCTION

I. THE HISTORICAL EXPERIENCE PRIOR TO 1815 3

I. Some Ancient Civilizations 3
z. Early Christian Doctrine 5
3· The Scholastics 6
f. Writers of the Fourteenth and Fifteenth Centuries and their
Reflection of Changes in European Society 7
5· Probabilism and the Development of the European State System
and Balance of Power, rsoo-1648 ro
6. Europe after Westphalia, r648-r8I5: Positivism and the Balance
ofPower If

II. THE CUSTOMARY LAW OF THE PERIOD 1815-1914. SOME

NEW DEVELOPMENTS: ARBITRATION AND TREATIES
FOR PACIFIC SETTLEMENT 19
I. Major Features of State Practice in the Period I 815 to 1914 19
2. The State of War Doctrine z6
3· Hostile Measures not Constituting War in the Formal Sense: Some
Instances of State Practice, 1798-1920 28
4· Conclusions on the Definition and Significance of a 'State of War'
in the Period I 798 .to I 920 38
5· Legal Justifications for the Use of Force in the Classical Law:
Customary Rules of the Nineteenth Century. 40
6. The Practice of States in Relation to Intervention 44
7· Hostile Measures Short of War 45
8. Justifications for Resort to Force: Some Conclusions on the State of
the Customary Law as it had developed by r 920 46
9· The Close of the Period I8I5 to I9I4: Retrospect and Prospect 49
xu CONTENTS CONTENTS xiii
III. THE FIRST WORLD WAR. THE VERSAILLES AND OTHER J. Possible Sources of Weakness in the Legal Regime IIJ
TREATIES: WAR GUILT AND REPARATIONS 5I 4· Other Legal Instruments Relating to the Use of Force of the 1)eriod
since 1945 rr6
IV. THE COVENANT OF THE LEAGUE OF NATIONS 55 5. The Five Principles of Peaceful Co-Existence I I7
r. Its Genesis and Main Functions 55 6. Some Characteristics of the Legal Developments since 1945 I20
2. The 'Gaps' in the Covenant 59 APPENDIX r. Instruments affirming the Five Principles of Peaceful
3· Article roof the Covenant 62 Co-Existence I2J
APPENDIX n. Reaffirmation of, and adherence to, the Principles
V. ILLEGAL WAR, AGGRESSIVE WAR, AND AGGRESSION: of the United Nations Charter and in particular the obligations of
Article 2, paragraph 4, of the Charter I 27
THE MAJOR LEGAL DEVELOPMENTS OF THE PERIOD
1920 TO 1945 66
PART II
I. Introduction 66
2. The Draft TreatY of Mutual Assistance 68 THE CONTENT OF THE ILLEGALITY OF
3. The Geneva Protocol, r 924 69 THE USE OF FORCE: THE DELICTUAL
4· 'T'he Locarno Treaties of rgzS 70 AND CRIMINAL ASPECTS
5· Resolutions of the League Assembly in 1925 and 1927 71 INTRODUCTION I 30
6. Resolution of the Sixth International Conference of American
States, 1928 73 VII. USE OF FORCE AS A STATE DELICT: THE OBLIGATION
7· The General Treaty for the Renunciation of War, signed on TO MAKE REPARATION IJJ
27 August 1928: Its Role in State Practice 74 r. Introduction I33
8. Origins and Interpretation of the General Treaty So 2. Armistice Conditions and Peace Treaties, I9I8-2I 135
9· The Chaco Declaration of I932 92 3· The Work of the League of Nations: some draft treaties and the
IO. Further Pronouncements by Governments and Statesmen 93 settlement of the Greco-Bulgarian Dispute of I 92 5 I 40

I I. The Anti-War Treaty ofNon-Aggression and Conciliation, signed 4· Peace Treaties after the Second World War 142
at Rio de Janeiro, 10 October 1933 95 5· Claims Arising from the Suez Operations, 1956 145
I 2. Seventh International Conference of American States, Mon- 6. Frontier, Aerial, and Other Incidents: Intentional or Negligent
tevideo, I933 96 Infliction of Harm by Armed Forces I 46
r 3· Inter-American Conference for the Maintenance of Peace, 7· Conclusions 147
Buenos Aires, 1936 97
14. Some Statements of Principle in 1937 99 VIII. CRIMINAL RESPONSIBILITY FOR THE UNLAWFUL U.SE
I 5· Eighth International Conference of American States, Lima, 1938 101 OF FORCE IN INTER-STATE RELATIONS rso
16. Treaties of Friendship and Security, of Guarantee and Neutrality, r. The Concept of Criminal Responsibility of States I 50
and of Non-Aggression, I925-39 ror 2. The Concept of the Criminal Liability of Individuals responsible
I 7. State Practice in the Period I 938-42 105 for the Unlawful use of force in Inter-State Relations 54 I

I 8. The Second World War and a Retrospect. An Evaluation of the 3· Draft Treaties, League Resolutions, and St.,._te Practice 56 I
State Practice of the Period 1920-45: the Formation of a 4· Internal Law and the Pact of Paris , I 57
Customary Rule I07
5· Provisions of Iviunicipal Law Concerning Acts likely to cause War I 58
VI. NEW FOUNDATIONS: THE UNITED NATIONS CHARTER 6. The \Vars of Aggression 1939-45: Allied Declarations on the
AND THE BASES OF THE LAW AFTER 1945 rrz Punishment of War Criminals and Other Opinions 159
7. The International Conference on J'VTilitary Trials, London, z6
I. Introduction r 12
June-8 August 19+5 161
2. The United Nations Charter I 12
8. Theoretical Problems 164
xiv CONTENTS CONTENTS XV

IX. CHARGES OF CRIMES AGAINST PEACE ARISING OUT OF PART Ill

THE SECOND WORLD WAR r67
LEGAL JUSTIFICATIONS FOR THE USE
I. The Trial of German Major War Criminals 167 OF FORCE IN THE MODERN LAW
2. The Arguments of Dr. Jahrreiss eta!. 169
INTRODUCTION 2 I4
3. The Gpinion of the Tribunal on the Legal Basis of the Counts
Charging Crimes against Peace 170
XI. PROBLEMS OF TRANSITION: THE LEGAL REGIME IN
4· The Trial of Japanese Major War Criminals 171 THE PERIOD 1920 TO 1930 216
S· Trials held under Control Council Law No. 10 I74
1. The Nature of the Customary Law Recalled 2 I6
6. Application in National Jurisdictions of the Concept of Crimes
Against Peace I 75 2. The Covenant of the League of Nations, the Kellogg-Briand
Pact, and Problems of Transition 2I7
7. Provisions Relating to Crimes against Peace m the Peace
Treaties I 82 3· The Legality of Reprisals and Pacific Blockade 2I9

8. Crimes against Peace in Relation to Legislation on Treason, 4· The Question of Intervention 224
Collaboration, and Analogous Offences I 84- 5· The Porter Convention 225
9· Evidence that Crimes against Peace as Defined in the Charters of 6. Stock Justifications appearing in Treaties in the Period 1920 to
the International Military Tribunals at Nuremberg and 1930 226
Tokyo have been Accepted as a PartofPositiveLawsince I946 I 85

I
10. Affirmation of Article 6 of the Charter annexed to the London XII. THE RIGHT OF LEGITIMATE DEFENCE: DOCTRINE
Agreement by United Nations Organs I 88 AND STATE PRACTICE IN"THE PERIOD 1920TO 1939 23J
I I. General Acceptance as Law of the Principles of the Nuremberg
Charter 191
1. Doctrine and State Practice of the Period I 920 to I 929 2J!
2. The Kellogg-Briand Pact and the Reservations to it, in particular
those relating to the Right of Legitimate Defence or Self-
X. CRIMES AGAINST PEACE: DEFINITION AND BASES OF
Defence 2J5
RESPONSIBILITY 195
3· Determination of Necessity for Legitimate Defence 237
r. Introduction. Article 6, paragraph (a) of the Charter of the Inter- 4· The Scope of the Reservation of the Right of Legitimate Defence 2
national Military Tribunal at Nuremberg I95 39
5. The British Reservation 24)-
2. Preparation of Aggressive War I96
6. The Monroe Doctrine 245
3· Participation in Planning Specific Wars of Aggression 197
7· The Obligations of the Covenant 246
4· Remaining in High Office with Knowledge of Plans for Wars of
Aggression 198 8. The Locarno Treaties 247
5· Liability for Waging Aggressive War on Count Two 199 9· State Practice and Doctrine in the Period I930 to 1939 2 47

I
6. Formulation and Execution of Occupation Policy 200
XIII. THE RIGHT OF SELF-DEFENCE IN THE PERIOD AFTER
7. Initiation of War 200
THE SECOND WORLD WAR 25!
8. Count One: the Conspiracy Count 200
I. Introduction 251
9· The Judgment of the International Military Tribunal for the
Far East 201 2. The Customary Law. The Question of the Forcible Protection
of Rights 25!
Jo. Decisions ofTribunals exercising jurisdiction by virtue of Control
Council Law No. IO 203 3· The Right of Anticipatory Self-Defence in the Customary Law 257
1 I. The Work of the International Law Commission and the Sixth 4· Some Reservations on the Customary Law in Respect of Antici-
Committee of the General Assembly 206 patory Self-Defence 258
I 2. Elements of Confusion 207 5. The Proportionality Rule 26r
I 3· Acts directed against other States and the motives for such acts: 6. The Right of Self~ Defence under the Charter of the United
criteria of responsibility 207 Nations

f-fliH ·· n·£acY

~lNflfl~S!J V:):cu.ornn!I
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 CONTENTS xvii
xvi CONTENTS
. Action authorized by a Competent International Organ 333
7· 'Against the territorial integrity or political independence of any 3
State' 265 4-· Action against Ex-Enemy States: the Charter, Articles 53 and I07 3 36
8. 'Or in any other manner inconsistent with the Purposes of the
United Nations' 268 XV!II. OTHER JUSTIFICATIONS FOR RESORT TO FORCE OF
9· Article 2, paragraph 4-, Article 5I, and the Right of Self-Defence DOUBTFUL VALIDITY 338
in the Customary Law 269
r. Humanitarian Intervention 338
!0. The Purpose and Meaning of Article 5I· 270
z. Arnied Intervention to Enforce Provisions of a Peace Treaty 342
II. The Relationship of Article 5 r and the Right of Self-Defence
in Customary Law 272 3· International Police Action 34-4-
I 2. Does Article 5I Permit Anticipatory Self-Defence? 275 4· Veto in the Security Council 345
I 3• What is an Armed Attack? 278 5· Chronic Disorder on the Territory of a Neighbouring State 346
14. The Relations of the Customary Law and the United Nations 6. Force to Execute an Arbitral Award or Judgment 347
Charter 279 7· Miscellaneous Justifications 349

;' XIV. SOME PROBLEMS RELATING TO SELF-HELP IN THE

MODERN LAW 28I PART IV
I. Introduction z8r PROBLEMS OF A GENERAL NATURE
2. The Exercise of Legal Rights and the Decision of the International RELATING TO THE USE OF FORCE
Court of Justice in the Cotfu Channel Case 283
3· The Protection of the Lives and Property ofNationals:.The Nine- INTRODUCTION
teenth-Century Doctrine and Practice 289
4-· The Protection of Nationals in the Period since I920 292 XIX. THE QUESTION OF DEFINING AGGRESSION 3SI
5. (The Status of this Right of Intervention in the Modern Law 298 1. Historical Origins and Development 351
6. Self-Defence on the High Seas: Claims to Jurisdiction on the Basis 2
2. Attempts to Define Aggression 35
of Self-Defence 301
3· Is a Definition Possible or Desirable? 355
7. The Particular Problems of Self-Defence on the High Seas 305 APPENDIX 1. A Selection of Terms of Art in Treaties of Defensive
Alliance, Mutual Assistance, or Security, I920-54 359
XV. FORCIBLE ANTICIPATION OF A BREACH OF NEU- APPENDIX n. Text of the Conventions for the Definition ·of
TRALITY 309 Aggression signed in London, 3, 4, and 5 July I933 36o
I. Doctrine and State Practice
2. Breaches pf the Rules of Maritime Neutrality JIZ XX. THE USE OR THREAT OF FORCE AND THE CONCEPT OF
3· Some Conclusions JI3 ARMED ATTACK
I. The Use of Force
XVI. THE CONSENT OF STATES JI7
2. The Threat of Force
I. Problems of a General Character 3I7 3· The Concept of Armed Attack
2. Treaties Conferring a Right to Intervene 318
3· Intervention in Civil yY"ar at the Request or with Consent of the XXI. SOME PROBLEMS OF RESPONSIBILITY
Legitimate Government 321
1
• Complicity in Breaches of the Peace: Indirect Aggression
XVII. INTERNATIONAL ACTION 328 2. Problems Relating to Self-Defence
3· Special Cases of Necessity
I. Collective Defence and Defence of Other States 328
4· Animus Aggressionis and Other Questions
2. Tlle Concept of a War of Sanction 332
xviii CONTENTS CONTENTS xix

XXII. THE AUTHORS OF AND THE ENTITIES PROTECTED OFFICIAL SOURCES REFERRED TO 46r
FROM UNLAWFUL RESORT TO FORCE 379 TABLE OF DOCUMENTS 462
I. The Problem Stated 379 DOCUMENTS OF THE INTERNATIONAL LAW COMMISSION 467
2. Authors of Aggression 379
TABLE OF NATIONAL LEGISLATION 469
3. Entities Protected 3 8o
4-- State Territory 382 GENERAL STUDIES OF THE COVENANT OF THE LEAGUE OF NATIONS 473
GENERAL STUDIES OF THE CHARTER OF THE UNITED NATIONS 474
XXIII. THE LEGAL SIGNIFICANCE OF THE STATE OF WAR BIBLIOGRAPHY OF BOOKS AND ARTICLES ON THE LAW RELATING TO THE USE OF
IN THE PERIOD SINCE 1920 AND THE PROBLEM OF FORCE BY STATES 475
DEFINING WAR 384
SUBJECT INDEX 52!
I. The 'State of War' Doctrine in the Period 6f the League and the
United Nations 384
2. The Legal Significance of a 'State of War' in the Modern Law 393
3· The Value of a Definition of War 398

XXIV. THE ILLEGALITY OF THE USE OF FORCE: THE

QUESTION OF COROLLARIES IN THE LAW f02
r. The Nature of the Problem and the Scope of Inquiry f02
2. The Law of Neutrality fOZ
3. The Effect of Duress on the Validity of Treaties 4°4
4· The Application of the Laws ofY\lar in a Conflictwith an Aggressor 406
5. Some Further Suggestions 408

XXV. THE PRINCIPLE OF NON-RECOGNITION 4-10

I. Genesis of the Principle f!O
2. State Practice and Non-recognition 4'3
3· Is there a Legal Duty of Non-recognition of the Validity of
Acquisition of Territory by Unlawful Use of Force? fi8
4· The Limitations of the Principle of Non-recognition 419
5. The Problem of Prescription 422
6. Conclusions 422

XXVI. CONCLUSIONS 424

TABLE OF CASES (ACCORDING TO COUNTRIES AND COURTS AND TRIBUNALS, AND
WITH REFERENCES TO LAW REPORTS OR OTHER SOURCES) 437
TABLE OF CASES (ALPHABETICAL) 446
TABLE OF TREATIES
45°
A, MULTILATERAL TREATIES
45°
B. BILATERAL TREATIES
454
GENERAL SOURCES OF STATE PRACTICE 46o