CYIL Vol. 5, 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”. 44 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.” 45 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 44 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. 45 UN Doc. A/AC. 134 IL. 17 (and Corr) .

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