Abstract
As the normative order of international law purportedly regulates activities of its subjects in relation to one another, all the questions relating to substantive rights and duties of parties are, by definition, legal disputes and, by logic, susceptible to judicial settlement. The scope of the basic rights and duties of States is governed by conventional law, customary law, and general principles of international law existing at a given time, and there appears to be a general consensus that, with the foundation of the United Nations, the Charter has brought into existence a series of new duties of States and corresponding limitations to their formerly recognized rights, as reflected in the Draft Declaration on Rights and Duties of States which was noted by the General Assembly in its resolution of 6 December 1949.1 This is particularly true in regard to the threat or use of force and its manifestation in the form of “self-defense” or “intervention”.
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References
G.A. Res. 375 (IV), U.N. Doc. A/1251, p. 67. For critical remarks on the Draft Declaration, see Hans Kelsen, “The Draft Declaration on Rights and Duties of States,” 44 A.J.I.L. (1950), pp. 259–276.
Ibid., p. 722. Also see Philip C. Jessup, “The International Court of Justice and Legal Matters,” 42 Illinois Law Review (1947–1948), pp. 273–291.
S.C.O.R., 176th mtg., pp. 1778-1779. This generally reflects the treaty practice of the United Kingdom in regard to “changed conditions.” See Arnold McNair, The Law of Treaties. New York: Columbia Univ. Press, 1938, p. 378.
Ibid., pp. 5-6. For a critical comment on provisions concerning the relationship between the Instrument for the Provisional Regime and the Permanent Statute, see Hans Kelsen, “The Free Territory of Trieste under the United Nations,” 4 Y.B.W.A. (1950), pp. 174–179; and id., Law, pp. 825-827.
The same legal defense is presented also in Note on “La question palestinienne et la liberté de passage du Canal de Suez,” 7 R.E.D.I. (1951), pp. 235-258; “Affaire: Fjeld, arrêt du 4 novembre 1950,” ibid., pp. 121-126; “Affaire: Flying Trader, arrêt du 2 décembre 1950,” ibid., pp. 127-135; Omar Z. Ghobasy, “The Egyptian-Israeli Dispute on Freedom of Navigation in the Suez Canal,” 11 R.E.D.I. (1955), pp. 121–132; and
Moustapha El-Hefnaoui, Les Problèmes contemporains posés par le Canal de Suez. Paris: Imprimerie Guillemot et de Lamothe, 1951, pp. 205–225.
Julius Stone, Legal Controls of International Conflict. Sydney: Maitland, 1954, p. 641.
André Gervais, “Les Armistices palestiniens, coréen et indochinois et leur Enseignements,” 2 A.F.D.I. (1956), p. 97 at 118.
M. Sibert, “L’Armistice,” 40 R.G.D.I.P. (1933), p. 657 at 702. E. g., the armistice agreement ending the hostilities in the Greco-Turkish war in 1897, which suppressed the right of visit on Ottoman and neutral ships going toward or coming from an Ottoman port. hoc. cit. Also see Erik Castrén, The Present Law of War and Neutrality. Helsinki: [Suomalaisen Kirjallisuuden Seuran Kirjapainon Oy.], 1954, p. 130. The representative of Egypt said that “the fact that the Armistice Agreement is silent on this point” showed that it left the parties “free to exercise their legitimate right of visit and search.” S.C.O.R., 661 st mtg., p. 9.
Also see Leo Gross, “Passage through the Suez Canal of Israel-bound Cargo and Israel Ships,” 51 A.J.I.L. (1957), p. 530 at 543.
S.C.O.R., 553 rd mtg., p. 5. Though short of declaring that Egypt was under obligation to ensure the free use of the Suez Canal even when she was at war as provided in Article IV, he may have had the same thing in mind when he cited Article XI. Similar contentions are made by Simcha Dinitz, “The Legal Aspects of the Egyptian Blockade of the Suez Canal,” 45 Georgetown Law Journal (1956–1957), pp. 169–199; and Lawyers Committee on Blockade, The United Nations and the Egyptian Blockade of the Suez Canal. New York: 1953. These contentions are unsound as those provisions have long since been found to be unrealistic and ineffective. See
Joseph A. Obieta, The International Status of the Suez Canal. The Hague: Nijhoff, 1960, pp. 86–87. Also see
R.R. Baxter, “Passage of Ships through International Waterways in Time of War,” 31 B.Y.B.I.L. (1954), pp. 187–216.
For the text of the Presidential Decree of Nationalization, see Republic of Egypt, White Paper on the Nationalization of the Suez Maritime Canal Company. Cairo: Government Press, 1956, pp. 3–5.
Referring to this term “appropriate conditions,” Martin Domke states that it would have a “far-reaching effect” on the basic tenet of the rule governing compensation, namely that it should be “adequate, effective and prompt.” “American Protection against Foreign Expropriation in the light of the Suez Canal Crisis,” 105 U.P.L.R. (1956–1957), pp. 1033ff. But see Louis B. Sohn and R.R. Baxter, “Responsibility of States for Injuries to the Economic Interests of Aliens,” 55 A.J.I.L. (1961), p. 545 at 553 and compare Domke, “Foreign Nationalizations: Some Aspects of Contemporary International Law,” ibid., pp. 605 ff. Further see Bin Cheng, “The Rationale of Compensation for Expropriation,” 44 G.S. Transactions (1958 and 1959), pp. 267–310.
This was apparently the view also of France and the United States as expressed in the Three-Power Statement of 2 August 1956. The same view was again expressed by Secretary of State Dulles at the First London Conference. See The Suez Canal Problem, op. cit., p. 73. There are, however, strong arguments to the contrary. E. g., Robert Delson, “Nationalization of the Suez Canal Company: Issues of Public and Private International Law,”’ 57 C.L.R. (1957), p. 755 at 768-770
Dietrich Rauschning, “Rechtsprobleme der Suezkanal-Krise,” 7 J. i. R. (1956–1958), p. 257 at 266; id., Der Streit um den Suezkanal. Hamburg: University of Hamburg Public International and Foreign Law Studies (No. 27, mimeo.), 1956, p. 22
Thomas Huang, “Some International and Legal Aspects of the Suez Canal Question,” 51 A.J.I.L. (1957), p. 277 at 282-283; and
Erik Brüel, “Die völkerrechtliche Stellung des Suezkanals und die Nationalisierung der Kanalgesellschaft,” 7 Archiv V. (1957–1958), p. 24 at 58.
This rendition is substantially the same as the original French text. See The Society of Comparative Legislation and International Law, The Suez Canal: A Selection of Documents. London: Stevens, 1956, p. 45. This British contention has some support among the writers, e. g.
C. John Colombos, The International Law of the Sea. Fourth Edition. London: Longmans, Green, 1959, p. 179; and Huang, op. cit., p. 284, where he states that “notwithstanding the fact that the Suez Canal Company is an Egyptian company, the Declaration took the company out of the exclusive domestic jurisdiction of Egypt and made it a’ subject’ of international law.... Therefore, the nationalization of the Suez Canal Company was a violation of the international obligation of Egypt in that it altered in a material manner the conditions of operation of the Canal.” This thesis has no basis either in law or in practice. For a convincing refutation of this thesis, see Rauschning, “Rechtsprobleme....,” op. cit., pp. 266-267; Brüel, op. cit., p. 58. Also compare
Hyde, International Law. Second Edition. Boston: Little, Brown, 1945, pp. 1536 ff.
See James N. Hyde, “Permanent Sovereignty over Natural Wealth and Resources,” 50 A.J.I.L. (1956), p. 854; and
A.J.P. Tammes, “Decisions of International Organs as a Source of International Law,” 94 Recueil (1958, II), pp. 268 ff.
This thesis finds support in Jan F. Hostie, “Notes on the International Statute of the Suez Canal,” 31 Tulane Law Review (1956–1957), p. 397 at 420ff. This and other theses advanced by the Western Powers are generally supported on the basis of international morality rather than positive law. Compare
Georges Scelle, “La nationalisation du Canal de Suez et le droit international,” 2 A.F.D.I. (1956), pp. 3–19, with
Raymond de La Pradelle, “L’Egypte, a-t-elle violé le Droit International en nationalisant la Compagnie Universelle du Canal Maritime de Suez?” Internationales Recht und Diplomatie (Heft 1, 1958), pp. 20–27, and
Paul de Visscher, “Les aspects juridiques fondamentaux de la question de Suez,” 62 R.G.D.I.P. (1958), p. 400 at 405 ff.
Injunction against the use of force is a principal hallmark of the law of the United Nations. The use of force generally takes a form of intervention, a legal definition of which is “dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of thing” (I Oppenheim-Lauterpacht, p. 305). It is, however, generally recognized that intervention is a problem much more political than legal (C. Eagleton, International Government. Third Edition. New York: Ronald, 1957, p. 83).
In addition to the Korean conflict, Hungarian case and Guatemalan case which have been discussed in Chapter III in connection with the question of competence, there have been several other cases which are not dealt with in the present study. General analyses of those cases, though not necessarily in connection with their handling by the Council, may be found in P.B. Potter, “Legal Aspects of the Beirut Landing,” 52 A.J.I.L. (1958), pp. 727–730
Quincy Wright, “United States Intervention in the Lebanon,” 53 A.J.I.L. (1959), pp. 112–125; and id., “Intervention and Cuba in 1961,” A.S.I.L. Proceedings (1961), pp. 2-19.
There have been two cases briefly considered by the Council in 1960, both involving a dispute arising from the violation of territorial sovereignty of other States. On the U-2 case, see Quincy Wright, “Legal Aspects of the U-2 Incident,” 54 A.J.I.L. (1960), pp. 836–854; and on the Eichmann case, see
Helen Silving, “In Re Eichmann: A Dilemma of Law and Morality,” 55 A.J.I.L. (1961), pp. 307–358.
Ibid., pp. 13-14. Yugoslavia, a Communist State, is unique in that it has openly sanctioned the legality of the “Uniting for Peace” resolution. Generally see, Juraj Andrassy, “Uniting for Peace,” 50 A.J.I.L. (1956), pp. 563–582. It may be noted that this article by a Yugoslav international lawyer was written while the Korean conflict was still in progress (early 1953). This is in contrast to the Soviet position in relation to the Resolution. See
W.W. Kulski, “The Soviet Interpretation of International Law,” 49 A.J.I.L. (1955), p. 518 at 534. Later, however, the USSR espoused the Resolution, except by name, in the Lebanon case in 1058.
The acceptance of the Council resolution by Albania appears to have been motivated primarily by its desire to obtain admission to the United Nations (C.H.M. Waldock, “Forum Prorogatum” 2 I.L.Q. (1948), p. 377 at 379
Il-Yung Chung, Legal Problems involved in the Corfu Channel Incident. Geneva: Droz, 1959, p. 271), and secondarily to obtain the establishment of formal diplomatic relations with various Western nations including the United Kingdom (Albanian notes to the United Kingdom, Pleadings, I, pp. 67-71).
Herbert Briggs, “Rebus Sic Statibus before the Security Council: The Anglo-Egyptian Question,” 43 A.J.I.L. (1949), pp. 761–769. There has been one other case where the invocation of this doctrine was rejected by the Council. In the India-Pakistan (Kashmir) case, the two Governments accepted and ratified the two U.N.C.I.P. resolutions, respectively of 13 August 1948 and 5 January 1949, as the basis of the settlement of the territorial dispute, and they were confirmed by the Council in a number of resolutions. In 1957, the representative of India stated that those resolutions could not be implemented on the ground of rebus sic stantibus which, in his opinion, was still a “respectable” doctrine. The Council rejected this contention, although its attempt to declare the unilateral integration by India of the Indian section of Kashmir incompatible with the two resolutions was unsuccessful because of a Soviet veto. See S.C.O.R., 767th mtg., pp. 49 ff and S.C.O.R., 773rd mtg., p. 29.
For a critique of this proposal, see Peter Price, Power and the Law. Geneva: Droz, 1954, p. 108.
Howard S. Levie, “The Nature and Scope of the Armistice Agreement,” 50 A.J.I.L. (1956), p. 880 at 866; Paul de Visscher, op. cit., p. 407.
P.E. Corbett, “Power and Law at Suez,” 12 International Journal (1956–1957), p. 1 at 6.
As well known, there is no agreement among the writers as to the scope of legal use of force under the Charter. In the present case, the defense of the United Kingdom and France rested chiefly on the defense (but not self-defence) against “anticipatory” (Israeli) attack on the Suez Canal and secondarily on a more common ground of intervention: protection of nationals. In the light of the Corfu Channel case, C.H.M. Waldock states that the threat and, indeed, the use of force for self-defense (training of guns toward Albanian coastal battery in view of the past firing from that battery) is not inconsistent with Article 2 (4) of the Charter, while self-help (mine-sweeping in the Corfu Channel without consent of Albania) is illegal. “The Regulation of the Use of Force by Individual States in International Law,” 81 Recueil (1952, II), p. 455 at 500-502. On the other hand, René-Jean Wilhelm argues that that particular point (self-defense) of the Court’s judgment was an obiter dictum in casu and should not be interpreted as a sanction of the use or threat of force for self-defense under all circumstances, even if legal rights have been violated. “La réalisation du droit par la force ou la menace des armes: considérations sur l’arrêt de la Cour internationale de Justice en l’affaire du Détroit de Corfou,” 15 Schweiz. J. i. R. (1958), p. 93 at 118-120. In connection with the use of force for the protection of economic interests and nationals abroad, D.W. Bowett argues that the use of force is justified under international law even against “anticipatory” attack or threat of force as long as it is employed for (1) territorial integrity, (2) political independence, (3) protection of nationals, and (4) protection of certain economic interests. In his opinion, Article 51 is simply an affirmation of the preexisting right of self-defense, and the use of force for the above purposes is not prohibited by the Charter, as long as it does not threaten territorial integrity and political independence as referred to in Article 2 (4) of the Charter. “The Use of Force in the Protection of Nationals,” 43 G.S. Transactions (1957), pp. 111-126, and id., Self-Defense in International Law. New York: Praeger, 1958, pp. 216ff. Also see G.G. Fitzmaurice, “General Principles of International Law, considered from the Standpoint of the Rule of Law,” 92 Recueil (1957, II), p. 1 at 171-174
Julius Stone, Aggression and World Order. Berkeley: Univ. of California Press, 1958, pp. 92–101; id., “Law, Force and Survival,” 39 Foreign Affairs (1961), p. 549 at 554-556; and id., Quest for Survival. Cambridge: Harvard Univ. Press, 1961. Among the opinions to the contrary, see
Hans Wehberg, Krieg und Eroberung im Wandel des Völkerrechts. Frankfurt am Main: Metzner, 1953, pp. 64, 71, 82-84; id., “L’interdiction du recours à la force: le principe et les problèmes qui se posent,” 78 Recueil (1951, I), pp. 70-71. Also see
Philip C. Jessup, A Modern Law of Nations. New York: Macmillan, 1948, pp. 165–166, 169; and
Ian Brownlie, “The Use of Force in Self-Defence,” 37 B.Y.B.I.L. (1961), p. 183 at 219 ff.
But for an interesting political analysis of the Suez debacle in the light of the “hegemonial intervention,” see Georg Schwarzenberger, “Hegemonial Intervention,” 13 Y.B.W.A. (1959), pp. 236–265.
The major legal problem involved in the United States quarantine measure was of course the question of the legality of this measure in the light of Article 51 of the Charter. The invocation of the right of self-defense in the Cuban crisis is said to be justified, but on a number of different grounds according to different writers. The United States official position was based on the right of collective self-defense through the OAS, as stated by the State Department Legal Adviser, Abram Chayes, “Law and the Quarantine of Cuba,” 41 Foreign Affairs (1963), p. 550. For a “configurative” or “contextual” analysis of the crisis through a “decision-making” approach, see
Myres S. McDougal, “The Soviet-Cuban Quarantine and Self-Defense,” 57 A.J.I.L. (1963), p. 597. This contextual analysis is unduly restrictive despite the grave implifications of the subject matter dealt with, especially with respect to the analysis of Article 51 of the Charter. For a more extensive exposition of his view, see
McDougal and Feliciano, “Resort to Coercion: Aggression and Self-Defense in Policy Perspective,” 68 Y.L.J. (1959), pp. 1057–1165. A more balanced appraisal of the crisis is found in
Quincy Wright, “The Cuban Quarantine,” 57 A.J.I.L. (1963), pp. 546–565.
Though different in context, compare Philip C. Jessup, “Should International Law Recognize an Intermediate Status between Peace and War?,” 48 A.J.I.L. (1954), pp. 98–103.
While it is true that “tolerance” may be taken in a very general way as a measure of “community expectations,” to equate “tolerance” with “legality” in the present case would lead to an unwarranted conclusion. It is surmised that the like conclusion may obtain in regard to numerous international situations. Generally compare Myres S. McDougal and Norbert A. Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Y.L.J. (1955), pp. 648–710.
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Kahng, T.J. (1969). Questions Relating to Substantive Rights and Duties of Parties. In: Law, Politics, and the Security Council. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6131-4_5
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