CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ of armed attacks. 64 Strongly in favour of the distinction between “armed attacks” and frontier incidents speaks e.g. Ch. Gray. 65 The meaning of armed attack is still rather controversial despite the ICJ statement in the Nicaragua case that appears now “to be general agreement on the nature of the acts which can be treated as constituting armed attacks”. The ICJ also asserted that it is necessary to distinguish ,,the most grave forms of the use of force” as constituting an armed attack from “other less grave forms” depending on ,,scale and effects”. 66 The majority of authors maintain that the notion of “armed attack” presupposes a “large scale” or “massive attack”. An armed attack may also emanate from armed activities of non-state actors who may by supported by state involvement. The ICJ in the Nicaragua case used the 1974 Definition of Aggression to determine the scope of an armed attack to draw the distinction with frontier incidents. Some authors argued that Art. 2 (4) and Art. 51 have left existing customary law on the use of force unaffected. 67 To state that the UN Charter did not have any impact upon the customary right of self- defense means to ignore the reciprocal influence of both sources of public international law, international treaty and international custom. There is no legal reason to exercise the right of self-defense in cases other than “armed attack”. 68 An inherent right to self- defense does not mean an unlimited right to use of force. In 1984 the U.S. counsel argued to the International Court of Justice that the U.S. was in a position to determine the necessity of the “defence” measures it had taken against Nicaragua. The legal adviser of the Department of State declared that the exercise of self-defense could not be subject to the decision of the ICJ inasmuch as the national security of the U.S. was involved. 69 “Inherent right” is not the same as customary right, which may be confirmed in writing. On the other hand, non- state parties to the UN Charter also have the right to self-defense against armed attack according to international customary law. The Declaration on Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty of 1965 70 declared that “armed intervention is synonymous with aggression”. This GA Res. 213 was adopted by a vote of 109 to 0, with 1 abstentation (the United Kingdom). D. Acheson, former Secretary of State in connection with the U.S. “quarantine” in the Cuban missile crisis of 1962, declared in his remarks to ASIL that “the survival of states is not a matter of law.” He emphasised that self-defense could not be governed

64 Dienstein, Y., supra note 1, p. 175 65 Gray, Ch., supra note 1, pp. 148-151. 66 ICJ Reports, Judgements, 1986 59, para. 191 and 195.

67 Waldock, C.H.M., supra note 1; Schwebel, S.M., Aggression, intervention and self-defence in modern international law , Recueil, supra note 1; Bowett, D.W., Self-defence in international law , Manchester 1958, p. 249. 68 Mrázek, J., The Use of Force and Expanded Conceptions of Self-Defence, Chines (Taiwan) Yearbook of International Law and Affairs, 2011, pp. 135-155. 69 Schachter, O., supra note 8, p. 262. 70 GA res. 2131/xx.

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