All texts express exclusively personal views of the authors. Authors bear full responsibility for statements and opinions expressed
in the published studies.
© Copyright by Polish Academy of Sciences Institute of Law Studies and the Committee on Legal Sciences, Warszawa 2017
PL ISSN 0554-498X DOI 10.7420/pyil2016
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Printed in Poland First edition, 200 copies
CONTENTS
IN MEMORIAM ...9
Bartłomiej Krzan
Professor Jan Kolasa (1926-2016) ...11 GENERAL ARTICLES ...19
Roman Kwiecień
The Nicaragua Judgement and the Use of Force – 30 Years Later ...21 Michał Kowalski
Original Sin Reaffirmed: The Nicaragua Judgement’s Impact on the Notion
of Armed Attack as the Most Grave Form of the Use of Force ...37
François Finck
The State between Fact and Law: The Role of Recognition and the Conditions under which It Is Granted in the Creation of New States ...51
Wojciech Burek
Family Reunification Regulations and Women: The Perspective
of International Law ...83
Athanasios Yupsanis
Cultural Autonomy for Minorities in the Baltic States, Ukraine, and the Russian Federation: A Dead Letter ...109
Anna Karapetyan
A Recurring Phenomenon: The Lawful Sanctions Clause in the Definition of Torture and the Question of Judicial Corporal Punishment under
International Human Rights Law ...137
Aleksandra Rychlewska
The Nullum Crimen Sine Lege Principle in the European Convention
CONTENTS
6
Petra Bárd
Scrutiny over the Rule of Law in the European Union ...187
Joanna Ryszka
“Social Dumping” and “Letterbox Companies” – Interdependent
or Mutually Exclusive Concepts in European Union Law?...209
Dominik Horodyski, Maria Kierska
Enforcement of Emergency Arbitrators’ Decisions under Polish Law ...231 POLISH PRACTICE IN INTERNATIONAL LAW ...245
Dorota Pyć
Compliance and Enforcement of Maritime Labour Conditions – The Polish
Legal Perspective ...247
Grzegorz Wierczyński
The Polish Practice Regarding the Promulgation of International
Agreements between 1945 and 2017 ...257
Agata Kleczkowska
Judgement of the Supreme Court, dated 17 February 2016
(Ref. no. WA 16/15)...267 BOOK REVIEWS ...277
Kaja Kowalczewska
William H. Boothby, Weapons Law and The Law of Armed Conflict ...279
Bartłomiej Krzan
M. Ruffert, C. Walter, Institutionalised International Law ...283
Roman Kwiecień
Robert Kolb, Peremptory International Law – Jus Cogens ...287
Marcin Menkes
Eugene Kontorovich, Francesco Parisi (eds.), Economic Analysis
of International Law ...291
Marcin Menkes
Marc-William Palen, The ‘Conspiracy’ of Free Trade ...295 LIST OF REVIEWERS VOL. 36/2016 ...299
Dear Readers,
We are pleased to present you with the latest volume of the Polish Yearbook of In-ternational Law (36/2016). Following our tradition, it is divided into three sections: articles, Polish practice in international law, and book reviews. In addition, at the be-ginning of the volume we have included a memorial to the academic life and work of Jan Kolasa, the distinguished Polish professor of international law from Wrocław Uni-versity, who sadly passed away last year (by Bartłomiej Krzan).
The first section starts with two texts (by Roman Kwiecień and Michał Kowalski) that analyse the legal consequences of the famous judgement of the International Court of Justice in the Nicaragua case (Military and Paramilitary Activities in and against Ni-caragua, Nicaragua v. United States of America). These two publications are very timely, as 2016 marked the 30-year anniversary of the judgement. Both authors agree on its significance for modern international law, particularly with respect to customary rules relating to the use of force and principle of non-intervention. While the texts discuss different aspects of the judgement, both of them are rather critical of the ruling, and it is difficult not to agree with them, especially if one considers the developments that have taken place in Eastern Ukraine over last couple of years (and their legal assessment).
The third text in this section (by François Finck) explores the role of recognition in State creation. Based on an analysis of the relationship between the principles of effectiveness and legality in the process of State creation, the author claims that recog-nition is constitutive of statehood as a subject of international law. In the next article, Wojciech Burek argues that while the existing provisions on family reunification in international and European law are formulated in neutral language, the enforcement of these substantively neutral rules results, in certain situations, in discrimination with respect to women, both as the sponsors of migration or the bearers of the consequences of male migration. Next Athanasios Yupsanis takes a critical look at the legal mecha-nisms for guaranteeing cultural autonomy for minorities in selected states of the for-mer USSR (including the Russian Federation), tracing their origins back to the late 19th century Austro-Marxist school of thought. Anna Karapetyan in turn addresses
the problems arising from the inclusion of the “lawful sanction clause” in the relevant definition contained in the Convention against torture, while Aleksandra Rychlewska analyses the jurisprudence of the European Court of Human Rights relating to the principle of nullum crimen sine lege (as enshrined in Article 7 of the European Conven-tion on Human Rights) and comes to the conclusion that it is understood as requiring foreseeability in the application of criminal law and coherence in terms of the “essence of an offence”. Petra Bárd, in her important (and timely) text deals with the rules and procedures applicable to violations of the rule of law requirement in the European
Union. In this context she assesses the need for – and the possibility of establishing – an EU Scoreboard on EU values, which could contain viable strategies and procedures to regularly monitor all Member States’ compliance with the rule of law; and discusses as well the effectiveness and nature of the dissuasive sanction mechanisms foreseen for rule of law violators. Joanna Ryszka investigates two phenomena which have emerged within the framework of the European Union integration process, i.e. “social dumping” and “letterbox companies”. She contends that both of them may have some negative effects in terms of attaining the EU objective of a “highly competitive social market economy”, and presents possible solutions to the problems they give rise to. In the last text, Dominik Horodyski and Maria Kierska provide the Polish perspective on the ef-fectiveness of emergency arbitrator proceedings by analysing the applicable regulations on interim measures and their enforcement.
The second section (Polish practice in international law) includes three texts. In the first, Dorota Pyć discusses the quality of the recent implementation of the Maritime Labour Convention into the Polish legal system (i.e. the new Polish Act on Maritime Labour). Grzegorz Wierczyński then presents the Polish practice of promulgation of international agreements since the end of World War II. In this context he shows that the practice is at variance with Polish law and makes it difficult to determine the current legal situation vis-à-vis international agreements in Poland. The section closes with a text by Agata Kleczkowska, who analyses the judgement of the Polish Supreme Court of 17 February 2016 in a case concerning Polish soldiers accused of having committed crimes in the village of Nangar Khel in Afghanistan in 2007.
The last section includes five reviews of recently published books that should not be missed by our readers.
As you will immediately notice, the volume does not contain the usual “Polish bib-liography in international and European law”. The main reasons for the discontinuance of this section is the fact that our readers apparently do not find this list so useful any-more as the download statistics for the document are gradually declining. Of course we will reconsider our decision if there are any changes in the future.
It is always a great pleasure to present you with each new volume of the Yearbook. We encourage you to contact us if you wish to submit a paper for a future volume, or just to express your opinion regarding the usefulness or content of PYIL, at pyil@inp. pan.pl).
Karolina Wierczyńska, Łukasz Gruszczyński
XXXvI POLISH YeArBOOK OF INterNAtIONAL LAW
2016 DOI 10.7420/pyil2016aPL ISSN 0554-498X
Bartłomiej Krzan
*PRoFessoR JAn KolAsA
(1926-2016)
Professor Jan Kolasa was born on 3 December 1926 in Kobylany, in the Opatów district. The outbreak of World War II severely impeded but did not entirely destroy his education plans. Soon after the War’s end he began studying Law at the University of Wrocław, from which he graduated on 30 December 1950. Already in 1947 Jan Kolasa was attending the lectures and seminars of Professor Stanisław Hubert, who became his academic mentor and master. It was during these times that Jan Kolasa, while still a student, completed an in-depth study of the first Polish textbooks on the law of na-tions.1 In the period of 1949-1956 he worked at the Library of the Ossolinski National
Institute (Ossolineum), where he was trained as a full librarian and an editor. But his work at Ossolineum did not interrupt his contacts with Professor Hubert. At Professor Hubert’s urging, he undertook studies on the teaching of the law of nations in Poland during the Age of enlightenment, which resulted in the publication of a well-received book2 wherein he analysed how the law of nature and law of nations were taught in
Poland, i.e. in a state subjected to several partitions that eventually led to its final extinc-tion. The results of this research have been oft-quoted by lawyers and historians.
In September 1956 Jan Kolasa was awarded the scientific title of an adjunct at the Chair of International Law in the Faculty of Law at the University of Wrocław. Soon after that, in 1957, he left for the United States. As a Ford Foundation Scholar at Princ-eton University he first received a Master of Arts (1959), then Ph.D. on the basis of his dissertation “The League of Minds: The International Intellectual Cooperation of the League of Nations”.3
Facing problems with the recognition of his Ph.D. upon his return to Poland, Jan Kolasa obtained a second doctoral degree at his home University of Wrocław. The public
* Associate Professor of Public International Law at the University of Wroclaw, Faculty of Law,
Administration and economics, Wrocław (Poland).
1 J. Kolasa, Pierwsze „systema prawa narodów” w języku polskim z roku 1780, Wrocławskie towarzystwo
Naukowe, Wrocław: 1951.
2 J. Kolasa, Prawo narodów w szkołach polskich wieku Oświecenia, Wydawnictwo Prawnicze, Warszawa:
1954.
3 J. Kolasa, The League of Minds: The International Intellectual Co-operation of the League of Nations,
Bartłomiej Krzan
12
defence of his dissertation “Prawo narodów w polskich szkołach wieku oświecenia” [The law of nations in the Polish schools in the age of enlightenment] took place on 7 December 1960, with Professor Stanisław Hubert acting as a supervisor and Professors Ludwik ehrlich and Leszek Winowski as reviewers.
In 1962 Dr. Kolasa published ‘International intellectual cooperation. The League experience and the beginnings of UNeSCO’, wherein he examined initiatives and attempts to establish the Institute of Intellectual Cooperation in Paris and the func-tioning of its organs. The book met with very positive reviews.4 In the subsequent
period, Dr. Kolasa turned to international procedural law, which resulted in a series of interesting studies5 in addition to a book that became the basis for his obtainment
of his advanced scientific degree (habilitation). The formal examination (habilitation colloquium) took place at the Wrocław Faculty of Law on 28 October 1965. The con-ferral of venia legendi was confirmed by the Ministry of Science in 1967. The reviewers in the proceedings were Professors Alfons Klafkowski, remigiusz Bierzanek as well as Kazimierz Libera.
Professor Kolasa’s habilitation thesis attracted considerable attention and earned him great respect. In it he analysed the problem of the legal value of different resolutions of international organizations, with particular emphasis on numerous procedural rules, a topic of utmost importance both in terms of theory and practice. The book was the first to offer such a comprehensive and in-depth legal analysis, using his own original conception of adopted law.6 He thereby contributed significantly to the science of
in-ternational organizations, in particular to a better understanding of the contemporary law-making process. This work has been extensively referred to and quoted.7 According
to Prof. Bierzanek, Kolasa’s book was “a bold attempt at a new and creative approach
4 See e.g. Bulletin of International Association of Universities’ Paris, vol. XI, 1963, no. 1. In another
re-view published in International Organization, Krill de Capello assessed it as an “excellent Polish stud” – see H.H. Krill de Capello, The Creation of the United Nations Educational, Scientific and Cultural Organization, 24(1) International Organization 1 (1970).
5 J. Kolasa, Regulamin Zgromadzenia Ogólnego ONZ, 10-12 Państwo i Prawo 556 (1963); idem,
Rozwój regulaminów organizacji międzynarodowych, 3 ruch Prawniczy, ekonomiczny i Socjologiczny 81
(1965); idem, Regulamin Zgromadzenia Ogólnego Narodów Zjednoczonych, Sprawozdania Wrocławskiego towarzystwa Naukowego, 19, A, 1964, Wrocław: 1966, pp. 76-88; idem, Przepisy regulaminu Zgromadzenia
Ogólnego Narodów Zjednoczonych na tle postanowień Karty, XXII Acta Universitatis Wratislaviensis: Prawo
31 (1967).
6 See also J. Kolasa, On the source of international law: towards a conception of adopted law, 9 Polish
Yearbook of International Law 105 (1977-1978); idem, Koncepcja mieżdunarodnogo prinimajemogo prawa, Prawowiedienie 1977/3 (Leningrad); idem, Z zagadnień źródeł prawa międzynarodowego - koncepcja prawa
uchwalanego, 11 Przegląd Prawa i Administracji 45 (1979); idem, Ku koncepcji międzynarodowego prawa uchwalanego, in: K. Wolfke (ed.), Aktualne zagadnienia źródeł prawa międzynarodowego, Wydawnictwo
Uniwersytetu Wrocławskiego, Wrocław: 1984, pp. 11-19.
7 See e.g. J.J. Baskin, D.I. Feldman, Meždunarodnoe pravo: problemy metodologii: očerki metodov
issle-dovanija, Moscow: 1971, pp. 84-85; r. Sabel, Procedure at International Conferences. A Study of the Rules of Procedure at the UN and at Inter-governmental Conferences (2nd ed.), Cambridge University Press,
to a problem of great scientific and practical importance”.8 Another reviewer (I.
Seidl-Hohenveldern) expressed a similarly appreciative view.9
Subsequently, his 1975 monograph “głosowanie w powszechnych organizacjach międzynarodowych. Wybrane zagadnienia prawne” [voting in universal international organizations. Selected legal issues] constituted the basis for conferring on him the academic title of extraordinary professor of legal sciences. The results of his analysis in the monograph still remain intact today. In a review published in this Yearbook, Prof. Wojciech Morawiecki considered the monograph to be the “result of conscientious research which may serve as a model of a good juridical work.”10 Prof. Charles
rous-seau declared in revue générale de droit international public that the book was a solid contribution to the law of international organizations.11
He attained Ordinary Professorship (via the formal conferral of the academic title of ordinary professor by the State Council) in 1982 with his monograph “gAtt: z zagadnień tworzenia i stosowania prawa handlu międzynarodowego” [gAtt: issues concerning the creation and application of international trade law] (Ossolineum 1979), which resulted from research he conducted both in Poland and abroad (during his visiting professorship at Princeton University in 1974/75).12 Professor Kolasa was appointed ordinary professor
at the University of Wrocław in 1990 and worked in that position until his retirement in 2006. But even after that he remained actively engaged in the activities of the Department of International and european Law, to which he was always closely connected.
Within Kolasa’s vast scientific legacy one may identify a number of issues that particularly attracted his attention. But probably his favourite field of research was the law of interna-tional organizations. In addition to his examinations into internal law-making13 and
vot-ing, he did not refrain from taking on other more general topics concerning the definition14
8 See r. Bierzanek, Review: J. Kolasa, Rules of Procedure of the United Nations General Assembly. A Legal
Analysis, Wrocław 1967, 3 Polish Yearbook of International Law 336 (1970).
9 See 99 Journal du droit international 174 (1972). 10 See 9 Polish Yearbook of International Law 355 (1976).
11 See LXXvIII revue générale de droit international public 876 (1974).
12 J. Kolasa, Law-making and law-enforcing for international trade: some reflections on the GATT
ex-perience, Center of International Studies, Woodrow Wilson School of Public and International Studies,
Princeton University, Occasional Paper - World Order Studies Program no. 3, 1976.
13 J. Kolasa, Z zagadnień tzw. prawa wewnętrznego organizacji międzynarodowych, XXXII Acta
Universitatis Wratislaviensis: Prawo 83 (1970); idem, La notion de droit interne des organisations
interna-tionales, 3 Polish Yearbook of International Law 95 (1970); idem, Działalność prawotwórcza Organizacji Narodów Zjednoczonych w zakresie jej prawa wewnętrznego, Sprawozdania Wrocławskiego towarzystwa
Nau-kowego 1970 nr 25 A, pp. 70-72; idem, On the Procedural and Organizational Law Adopted by the Organs of
the European Union, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, Kluwer Law International, The Hague: 1996, pp. 625-642.
14 J. Kolasa, Pojęcie współczesnej organizacji międzynarodowej, 2/3 Przegląd Stosunków
Międzynaro-dowych 165 (1981); idem, La notion d’organisation internationale contemporaine, 12 Polish Yearbook of International Law, 95 (1983); idem, Some Remarks on the Concept of a Resolution and Decision of International
Organizations, in: J. Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs, Kluwer
Law International, The Hague: 1984, pp. 493-499.
and classification15 of international organizations. In recognition of his expertise and
achievements, Professor Kolasa was invited to take part in the preparation of an interna-tional textbook on internainterna-tional organizations, published in english and French under the auspices of the UNeSCO and the Hague Academy of International Law.16
Professor Kolasa’s enduring interest in teaching international law was manifested not only in his earlier studies from a legal historian’s perspective. Professor Kolasa was also actively engaged in reacting to contemporary challenges,17 as may be evidenced by
his determination and persistence to introduce the law of the european Communi-ties/Union to the curriculum of legal studies.18 It was due to his determination and
persistence that european law started to be taught as a separate subject at the Uni-versity of Wrocław, and at the time of its introduction was one of the first few in Poland. Due to generous support of the Konrad Adenauer Foundation it was possible to establish the Konrad Adenauer Centre of european Integration at the Faculty of Law and Administration of the University of Wrocław, with Professor Kolasa as the Centre’s director.
given the lack of textbooks on european law during this early period, one of the remedies was the compilation of a two-volume work edited by Professor Kolasa: “Wspólnoty europejskie (Unia). Wybrane problemy prawne” [european Communi-ties/Union. Selected legal issues].19 Within the domain of eU law Professor Kolasa
offered both examinations into general problems20 as well as more specific issues. In the
latter domain one should mention in particular the project on european and domestic telecommunications law, headed by Professor Kolasa and financed by the Ministry’s
15 J. Kolasa, Z zagadnień klasyfikacji organizacji międzynarodowych, in: J. Fiema, W. gutekunst, S.
Hu-bert (eds.), Księga pamiątkowa ku czci prof. dra Witolda Świdy, Wydawnictwo Prawnicze, Warszawa 1969, pp. 347-353.
16 See r.-J. Dupuy (ed.), Manuel sur les organisations internationales (A handbook on international
organ-izations), Académie de droit international de La Haye/Hague Academy of International Law, Dordrecht
1988. together with r. Zacklin, Professor Kolasa prepared a chapter Les moyens des organisations
inter-nationales (The ways and means of international organizations), pp. 179-236. The former author referred
to diplomatic relations, in particular to privileges and immunities, while Professor Kolasa authored the second part concerning financing (pp. 198ff), individuals (pp. 210ff) and property (pp. 232ff).
17 J. Kolasa, Prawo międzynarodowe w nowym programie studiów na Wydziale Prawa i Administracji, in:
H. Olszewski (ed.), Polska i świat. Studia nad prawem międzynarodowym i współczesnymi stosunkami
mię-dzynarodowymi. W czterdziestolecie pracy naukowej Profesora Alfonsa Klafkowskiego, Wydawnictwo Naukowe
UAM, Poznań: 1978, pp. 225-235.
18 J. Kolasa, Prawo europejskie – nowy przedmiot w programie studiów prawniczych, in: M. Seweryński,
4 Studia prawno-europejskie 23 (1999).
19 The second edition was released in 1998. In the first volume Prof. Kolasa authored a study on eC
internal law (Prawo wewnętrzne Wspólnot Europejskich. Zarys problemu, pp. 75-136), and in the second volume he published a study on the constitutional issues in the treaty of Maastricht (Traktat z Maastricht.
Zarys podstawowych zagadnień konstytucyjnych, pp. 49-104).
20 J. Kolasa, Unia Europejska na tle rozwoju prawa i społeczności międzynarodowej, in: J. Kolasa,
A. Kozłowski (eds.), Prawo międzynarodowe publiczne a prawo europejskie, Wydawnictwo Uniwersytetu Wroc- ławskiego, Wrocław: 2003, pp. 159-185; idem, Europa – rodowód i tożsamość, in: S. Dudzik (ed.), Konstytucja
dla Europy. Przyszły fundament Unii Europejskiej, Wolters Kluwer Polska, Kraków 2005, pp. 15-28.
Bartłomiej Krzan
Committee of Scientific research.21 The accompanying book crowned almost a decade
of research, commenced upon request of the Board of the National radio Communica-tion Agency, and was successively published in a series “Legal Issues of telecommunica-tion in europe”. In the first issue of this series Professor Kolasa clearly underlined the necessity of combining legal expertise with advanced complicated and complex tech-nological developments. He strongly advocated for “constant, long-lasting close coop-eration of engineers with lawyers and mutual support and complementing actions for developing this branch of science, and decent Polish domestic legislation in conformity with european requirements.”22 This is yet another manifestation of Professor Kolasa’s
legendary stance on combining theoretical and practical issues.
Mention must also be made of the monograph “Disarmament and arms control agreements: a study on procedural and institutional law” (Brockmeyer 1995), which was prepared at the University of Bochum. It contains a meticulous analysis of the respective agreements, constituting, according to the author, a new form of States’ commitments. Formally autonomous, these agreements concern interrelated aspects of the same subject, they are mutually interconnected not only substantively but also in legal-institutional terms. Thus, by being complementary to one another they lead to a certain institutional system constituting a new branch of today’s public interna-tional law.
Amongst his many lasting achievements, Professor Kolasa’s contribution to the law of international courts and tribunals is worth mentioning, along with his pioneering studies on procedural law.23 At a later stage he headed a scientific project on the
con-temporary international judiciary, the main effect of which was a two-volume work, edited by him. In the first volume, devoted to institutional issues, he tackled the Per-manent Court of Arbitration,24 and in the second volume on “Selected legal issues”
Professor Kolasa offered an extensive study on the independence of an international judge.25 The latter topic was further developed and also took the form of a brilliant
21 W. gromski, J. Kolasa, A. Kozłowski, K. Wójtowicz, Europejskie i polskie prawo telekomunikacyjne,
LexisNexis, Warszawa: 2004.
22 J. Kolasa, Przedmowa in: Zarys regulacji w ramach organizacji europejskich, Warszawa 1996 [Series:
Zagadnienia Prawne Telekomunikacji w Europie, 1], p. 7.
23 J. Kolasa, Regulamin Stałego Trybunału Sprawiedliwości Międzynarodowej. Początki międzynarodowej
procedury sądowej, CLIX Acta Universitatis Wratislaviensis: Prawo 69 (1987); idem, Some Reflections Concerning the Evolution of International Arbitral and Judicial Rules of Procedure, 14 Polish Yearbook of
International Law 99 (1985); idem, Proces Norymberski - aspekt proceduralny, 5 Państwo i Prawo 55 (1988);
idem, Origins and sources of procedural law of international courts: ubi jus, ibi remedium, in: v. epping et
al. (eds.), Brücken bauen und begehen. Festschrift für Knut Ipsen zum 65. Geburtstag, München: 2000, pp. 185-198.
24 J. Kolasa, Stały Trybunał Arbitrażowy, in: J. Kolasa (ed.), Współczesne sądownictwo
międzynarodo-we, Tom I: Zagadnienia instytucjonalne, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2009, pp.
47-73.
25 J. Kolasa, Niezależność sędziego międzynarodowego. Zarys problemu, in J. Kolasa (ed.), Współczesne
sądownictwo międzynarodowe, Tom II: Wybrane Zagadnienia prawne, Wydawnictwo Uniwersytetu
Wrocław-skiego, Wrocław: 2010, pp. 9-47.
presentation at the reunion of the Polish departments of international law at the Książ Castle in 2010.26
In addition to the above-mentioned fields of interest, one may mention his exami-nations into international environmental law27 or studies on international
responsibil-ity28 and on international trade.29 Professor Kolasa devoted special care and attention
to preparing an anniversary study on the restoration of the republic of Poland for “Przegląd Sejmowy”30 – a topic that had been previously examined by his academic
master Professor Hubert.31 Lastly, a team convened under Professor Kolasa’s leadership
examined the essence of sources of international law. The results of this project, with his important contribution on the legal character of unilateral acts of states,32 are
forthcom-ing also in english.
Without doubt the research conducted by Professor Kolasa was always of great theo-retical and practical importance, contributing vastly to the development of the science of international law. In many respects he posed problems in a pioneering fashion. His scientific legacy met with widespread acknowledgement and full respect and was exten-sively referred to in both the Polish and international legal doctrine, as evidenced by the many glowing reviews of his works in domestic and international scientific journals.
Along with having the highest scientific qualities and attainments, Professor Kolasa was always very strongly engaged in University affairs. At the University of Wrocław he
26 J. Kolasa, Zasada nemo iudex in causa sua a sądownictwo międzynarodowe, in: A.
Wnukiewicz-Kozłowska (ed.), Aksjologia współczesnego prawa międzynarodowego. Materiały konferencyjne (Książ,
12-14.05.2010 r.), Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2011, pp. 31-60.
27 See J. Kolasa, Prawnomiędzynarodowe aspekty ochrony wód Odry przed zanieczyszczeniem, 1 Przegląd
Stosunków Międzynarodowych 33 (1979); idem, Ochrona środowiska naturalnego Odry w płaszczyźnie
pra-wa międzynarodowego in: J. gilas, S. Wajda (eds.), Status prawnomiędzynarodowy Odry, Instytut Śląski,
Opole: 1982, pp. 159-173.
28 J. Kolasa, Z zagadnień kodyfikacji zasad odpowiedzialności międzynarodowej państw, 4 Przegląd
Prawa i Administracji 91 (1973); idem, Odpowiedzialność majątkowa państw w świetle prac Komisji Prawa
Międzynarodowego Narodów Zjednoczonych, in: H. de Fiumel (ed.), Problemy odpowiedzialności majątkowej państw Rady Wzajemnej Pomocy Gospodarczej, Warszawa: 1975, pp. 131-150.
29 E.g. J. Kolasa, Współpraca gospodarcza między Polską a RFN w świetle umów międzynarodowych, 5
Przegląd Stosunków Międzynarodowych 19 (1974); idem, Die wirtschaftliche Zusammenarbeit
zwis-chen Polen und der Bundesrepublik Deutschland im Lichte der völkerrechtlizwis-chen Verträge, in: J. Kokot, K.
Skubiszewski (eds.), Staatsangehörigkeit, soziale Grundrechte, wirtschaftliche Zusammenarbeit: nach dem
Recht der Bundesrepublik Deutschland und der Volksrepublik Polen, Berlin: 1976, pp. 205-224; idem, Prawo państwa do uczestniczenia w handlu międzynarodowym i innych formach współpracy gospodarczej, 6 Przegląd
Stosunków Międzynarodowych 23 (1981).
30 J. Kolasa, Odzyskanie przez Polskę niepodległości w 1918 r. w świetle prawa międzynarodowego, XvI
5(88) Przegląd Sejmowy 9 (2008).
31 S. Hubert, Rozbiory i odrodzenie Rzeczypospolitej, Zakład Prawa Politycznego i Prawa Narodów U.
J. K., Lwów: 1937 and idem, Przywrócenie władzy państwowej (Ius postliminii): rozwój doktryny w teorii i
praktyce prawa narodów do początków wieku XIX, Zakład Prawa Politycznego i Prawa Narodów U. J. K,
Lwów: 1936.
32 J. Kolasa, Charakter prawny aktu unilateralnego państwa, in: J. Kolasa (ed.), Istota źródła w porządku
prawa międzynarodowego, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2016, pp. 9-114.
Bartłomiej Krzan
was a member of the Senate and the University Financial Commission. At the Faculty of Law he led the Department of International Law (later expanded to also include european Law) from the late 1960s – after Professor Hubert stepped down – to the late 1990s.
Professor Kolasa undertook numerous initiatives aimed at opening up the University of Wrocław to international cooperation. It was due to his great personal engagement, as well as that of Professor Knut Ipsen (promoted to doctor honoris causa by Jan Kolasa on 15 November 1994), that the cooperation between lawyers from the Universities of Bochum and Wrocław, which has flourished since the mid-1980s, was possible. Profes-sor Kolasa also supervised joint student projects between the undergraduates of ger-man and Polish Universities: ruhr University Bochum, european University viadrina, Jagiellonian University and the University of Wrocław. One of the effects of such coop-eration was a volume “Architecture of the european Security”, co-edited with Michał rynkowski (Wrocław: 2002).
Professor Kolasa also initiated close cooperation with the Council of europe and the european Union, which resulted in, inter alia, the organisation of conferences on the re-lationship between international and domestic law,33 human rights, and the functioning
of the democratic institutions in emergency situations.34 Thanks to his contacts he
man-aged to invite numerous eminent guest lecturers to deliver lectures at the University of Wrocław. At the same time, he did not decline the various invitations he received to pres-ent papers at conferences and universities abroad (Princeton, Washington, Leningrad, Brno, Leipzig, The Hague). He served as visiting professor at Princeton University and ruhr University Bochum. He was also a committed teacher, devoting particular atten-tion to the rigidity and precision of legal reasoning and the responsible use of words.
All his students could always count on his assistance, advice, and support in their academic and other activities. Professor Kolasa always abided by the principle that “the most important things should come first.” His students and colleagues were always encouraged to further their scientific development and to have an open approach to new challenges. Like his academic master Professor Hubert, he always considered tak-ing care of and offertak-ing assistance to younger academics as “a sacrosanct university obligation”. Professor Kolasa carefully supervised 17 doctoral dissertations. Many of his former pupils continued their University careers and now serve as professors or assistant professors at various universities in Poland and abroad.
33 See J. Kolasa, The supranational character of Community law, in The relationship between international
and domestic law. Proceedings of the UniDem Seminar organized in Warsaw on 19 to 21 May 1993 in co-operation with the University of Wroclaw and the Poznań Human Rights Centre and supported by the Phare Programme of the European Communities, European Commission for Democracy through Law, Council of
europe Press, Strasbourg: 1994, pp. 70-78.
34 See J. Kolasa, Rules on emergency powers in human rights treaties, in: Human rights and the
function-ing of the democratic institutions in emergency situations. Proceedfunction-ings of the UniDem Seminar organized in Wrocław (Poland) from 3 to 5 October 1996 in co-operation with the University of Wrocław and with the sup-port of the Japan Foundation, the European Commission, Bank Zachodni SA of Wrocław, the Konrad Adenauer Foundation, and the European Commission for Democracy through Law, Strasbourg: 1997, pp. 108-128.
The integration of international lawyers was always very important for Professor Kolasa. He initiated and took active part in the annual reunions of the Departments of International Law, where he often read papers on controversial topics35 and edited
col-lections of conference papers.36 Professor Kolasa frequently served as a reviewer in the
proceedings on conferral of a professorial title, for appointments to the post of profes-sor, and in habilitation and doctoral proceedings.
In addition to his University activities, Professor Kolasa served as a member of Advi-sory Legal Committee to the Ministry of Foreign Affairs and as an expert of the Chan-cellery of the Sejm (the Polish Diet). In 2001 he was appointed a member of the OSCe Court of Conciliation and Arbitration (with the renewal of his appointment in 2007). For many years he was also a vice-Chairman of the Bioethical Commission at the Wrocław University of Medicine and was greatly involved in its activities. From 1989 onwards he actively participated in the Friends of Ossolineum Association (acting from 1998-2001 as its vice-President). With his legal expertise he assisted the Ossolinski Na-tional Institute as the chancellor of the Board of Curators for two terms (1995-2005). He was also a member of the Wrocław Scientific Society, the Association of Princeton Alumni, and the International Law Association.
Professor Jan Kolasa passed away suddenly on 13 August 2016. We will dearly miss him, not only as a truly eminent international scholar but first of all as a great mentor and inimitable master, a true civis academicus who managed to prove by his life what the University consists in, combining with success and utmost elegance the beautiful tradition of the Lemberg school of the law of nations with the requirements of the pres-ent times.
35 E.g. J. Kolasa, Normatywne podstawy jedności prawa międzynarodowego. Zarys problemu, in: J.
Kolasa, A. Kozłowski (eds.), Rozwój prawa międzynarodowego - jedność czy fragmentacja?, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2007, pp. 11-38.
36 See e.g. J. Kolasa, A. Kozłowski (eds.), Prawo międzynarodowe publiczne a prawo europejskie,
Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2003.
Bartłomiej Krzan
roman Kwiecień*
tHe NicaRagua JuDGMent AnD tHe use
oF FoRCe – 30 YeARs lAteR
Abstract:In light of contemporary circumstances, on the 30th anniversary of the Nicaragua judgment it is worth revisiting and considering again certain legal problems decided by – and raised by – the ICJ judgment. This article addresses the importance of the judgment in terms of inter-national legal regulations on the use of force. First and foremost, the article examines the con-cept of armed attack based on the “gravity” criterion elaborated by the Court and the exercise of the right of self-defence. Moreover, the relationship between customary international law and treaty law, as well as forcible counter-measures and military actions against non-State actors are also discussed in the article. It is argued that the “gravity” criterion used by the ICJ seems controversial and, consequently, may limit the right of self-defence. On the other hand, however, the judgment established a strong barrier to the realization of individual political interests by militarily powerful States. This is the Nicaragua judgment’s long-lasting legacy. In this sense the judgment has stood the test of time.
Keywords: armed attack, counter-measures, customary international law, Nicaragua judgment, non-State actors, self-defence, UN Charter, use of force
IntRoDuCtIon
On the 30th anniversary of the 1986 judgment of the International Court of Justice (ICJ or the Court) in the Nicaragua case,1 it is useful and timely to revisit and reassess
its impact on the use of force in international law. The important question is whether the ICJ’s approach has indeed stood the test of time vis-à-vis the changing landscape of contemporary international affairs. This article does not touch upon the jurisdictional
* Full Professor of Law at Cracow University of economics, Faculty of Finance and Law (Kraków,
Poland), Chair of Public International and european Law. The author is thankful to Dr. Marcin Kałduński for his helpful remarks on an earlier draft of the article. The views expressed here are entirely those of the author.
1 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
Ame-rica), Merits, Judgment, 27 June 1986, ICJ rep 1986, p. 14 (Nicaragua).
XXXvI POLISH YeArBOOK OF INterNAtIONAL LAW
issues resolved in the 1984 judgment of the Court, although it is worth noting here the opposing opinions offered with respect to the judgement. For instance, James Crawford stated that he could not agree with most of the Court’s findings on jurisdiction in the Nicaragua case,2 whereas Alain Pellet found that the Court had demonstrated that
“sometimes David can triumph over goliath.”3
It goes without saying that the Nicaragua judgment has been of great significance for international law as a legal system. Both its dictum and its legal justification have been the subject of much controversy among scholars as well as judges themselves, as reflected by the fact that there were three dissenting opinions (Judges Jennings, Oda, Schwebel) and seven separate opinions (Judges Nagendra Singh, Lachs, ruda, elias, Ago, Sette-Cama, Ni) filed in the case.
This article discusses the following problems: First, the relationship between cus-tomary international law and the United Nations Charter (the UN Charter); second, the concept of an “armed attack”; and third, the exercise of the right of self-defence, in particular its legal conditions and its relationship to forcible counter-measures. While special attention is devoted to these issues in the paper, the use of force against non-State actors as entities allegedly responsible for armed attacks, under the umbrella of right of self-defence, is also examined in the last section of the article.
1. CustoMARY InteRnAtIonAl lAW, tReAtY lAW, AnD tHe
lAW on use oF FoRCe
While this article places emphasis on jus ad bellum, one essential issue relating to international law as a whole must be mentioned at the outset; namely the relationship between treaty law and customary international law. The ICJ presented customary law as a background for treaties. The question of the material identity between them did not seem to be decisive for the Court. According to the Court, customary and treaty rules do not need to have the same content and they retain a separate existence. As the ICJ clearly underlined:
There a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if two States in question are bound by these rules both on the level of treaty law and that of customary international law, these norms retain a separate existence. (…) It will therefore be clear that customary international law continues to exist and apply, separately from treaty law, even when the two categories of law have an identical content.4
2 J.r. Crawford, Jurisdiction and Applicable Law, 25(2) Leiden Journal of International Law 471
(2012).
3 A. Pellet, The Nicaragua Case: ‘Mafiosi’s’ and ‘Veteran’s’ Approaches Combined, 25(2) Leiden Journal of
International Law 484 (2012).
4 ICJ, Nicaragua, pp. 95, 96, para. 178, 179. See also ibidem, pp. 93-95, para. 175-178 and ICJ,
Nicaragua, Jurisdiction and Admissibility (1984), p. 424, para. 73.
Roman Kwiecień
The existence of identical rules in treaty law and customary law had been clearly recognized by the Court in the North Sea Continental Shelf case.5 In that decision, as
well as in the Nicaragua judgment, the ICJ found no basis for holding that rules of customary law needed to be substituted for the applicable rules of treaty law, so that the customary international law had no further autonomous existence of its own in the given situation.6
This key issue regarding the relationship between treaty law and customary inter-national law in the Nicaragua decision occurred in relation to the use of force. The ICJ considered the relationship between the UN Charter and customary law and underlined the absence of a substantial identity between the two sources as regards jus ad bellum.7
In particular, Article 51 of the UN Charter itself does not encompass all the legal issues regarding the exercise by a State of its “inherent right” to self-defence. According to the ICJ, it is customary international law which primarily does that, and its rules do not have the same content as the UN Charter.8 The prohibition of the use of force itself –
con-tinued the Court – is a part of customary international law confirmed in Article 2(4) of the UN Charter. In this article, the prohibition is recognised not only as a “principle of customary international law but also a fundamental or cardinal principle of such law.”9
Therefore, to put it briefly, the UN Charter and customary international law should be seen as mutually supplementing each other as far as the use of force is concerned.10
The ICJ confirmed its standpoint on the relationship between customary and treaty law in the Oil Platforms judgment.11 In addition the Institut de droit international took
a similar position in its resolution on the use of armed force of 27 October 2007.12
5 ICJ, North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/
Netherlands), Judgment, ICJ rep 1969, p. 3, 39, para. 63.
6 ICJ, Nicaragua, p. 95, para. 177. 7 Ibidem.
8 It should be noted that the ICJ also underlined: “This could also be demonstrated for other subjects,
in particular for the principle of non-intervention” (ibidem, p. 94, para. 176).
9 Ibidem, p. 100, para. 190. In Armed Activities the ICJ declared that “the prohibition against the
use of force is a cornerstone of the United Nations Charter”, but it did not express its opinion about the peremptory character of this prohibition (ICJ, Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), ICJ rep 2005, p. 168, 223, para. 148).
10 For a thorough discussion of this subject, see A. Constantinou, The Right to Self-Defence under
Customary International Law and Article 51 of the UN Charter, Bruylant, Bruxelles: 2000, passim. The
ICJ’s view is strongly supported in the Polish scholarship by M. Kowalski, Prawo do samoobrony jako środek
zwalczania terroryzmu międzynarodowego [The right to self-defence as a means of countering international
terrorism], Difin, Warszawa: 2013, pp. 69-76; M. Kowalski, Ius ad bellum a systemowy charakter prawa
międzynarodowego [Jus ad bellum and the systemic nature of international law], in: r. Kwiecień (ed.), Państwo a prawo międzynarodowe jako system prawa [The state and international law as a system of law],
Wydawnictwo UMCS, Lublin: 2015, pp. 195-197. In this paper Kowalski also recognizes the right to self-defence as a general principle of law (p. 197). See also M. Kowalski in this volume.
11 ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, 6 November
2003, ICJ rep 2003, pp. 161, 186-187, para. 51.
12 Institut de droit international, Session de Santiago – 2007, Present Problems of the Use of Armed Force.
Self-defence, available at: http://www.idi-iil.org/idie/resolutionse/2007_san_02_en.pdf (accessed 30 May 2017).
Paragraph 1 of the resolution states: “Article 51 of the United Nations Charter, as supplemented by customary international law, adequately governs the exercise of the right of individual and collective self-defence.” However, the evolutionary and flexible nature of customary law needs to be borne in mind, i.e. its susceptibility to changes as a result of a general practice which is accompanied by opinio iuris. For this reason, according to Yoram Dinstein “it seems logical to believe that an eventual dissonance between Article 2(4) [of the UN Charter – r.K.] and customary international law can be anticipated.”13
2. tHe ConCePt oF ARMeD AttACK AnD tHe ‘GRAvItY’
CRIteRIon RevIsIteD
In Article 51 of the UN Charter, the concept of “armed attack” is at the heart of the use of force in self-defence. Therefore, the exercise of the right of self-defence and the understanding of armed attack play an essential role in the Nicaragua judgment. This “inherent right” of States has been established in both the UN Charter and in custom-ary international law,14 which is one of the reasons for the controversies surrounding the
judgment, both among States themselves and among scholars. The Nicaragua dictum has particularly enhanced the amount of scholarly criticism of the ICJ’s position on the concept of armed attack, both for its claims and omissions. Thus it is no coincidence that another article on the Nicaragua judgment published in this volume, by Michał Kowalski, concerns the concept of armed attack.
There are three aspects of the concept of armed attack in the Nicaragua judgment, namely: the temporal aspect – when does an armed attack take place?; the rationae personae aspect – from whom does an attack emanate?; and the rationae materiae aspect – what constitutes an armed attack?15 The ICJ opined that the right of self-defence, as
recognised in Article 51 of the UN Charter, required an armed attack by another State, and based its position with reference to the rationae materiae aspect of an armed attack
13 Y. Dinstein, War, Aggression and Self-Defence (3rd ed.), Cambridge University Press, Cambridge:
2001, p. 91.
14 ICJ, Nicaragua, pp. 102-104, para. 193-195, esp. p. 103, para. 194, where the ICJ stated: “[t]he
existence of the right of collective self-defence is established in customary international law…”. There are, however, doubts whether the right of collective self-defence, unlike the right of individual self-defence, had existed before the UN Charter entered into force. At the time of the proceedings in the Nicaragua case this was just historical issue. Nonetheless it was the reason underlying some critical comments by some judges. Judge Oda, in his dissenting opinion, remarked that “the term ‘collective self-defence’, unknown before 1945, was not found in the Dumbarton Oaks proposals”, and at the same time he observed that “there was certainly no discussion whether the right of collective self-defence was inherent or not.” (ICJ, Nicaragua,
Dissenting Opinion of Judge Oda, pp. 253, 256, paras. 91, 94).
15 A.A. Yusuf, The Notion of ‘Armed Attack’ in the Nicaragua Judgment and Its Influence on Subsequent
Case Law, 25(2) Leiden Journal of International Law 461 (2012), p. 462. Judge Yusuf limits his remarks to
the rationae materiae aspect of the concept.
Roman Kwiecień
on the “gravity” criterion. In a well-known part of the judgment the Court stated: “[i]t will be necessary to distinguish the most grave forms of the use of force (those constitut-ing an armed attack) from other less grave forms.”16 Thus in the view of the Court,
un-der international law – both customary and that of the United Nations system – States do not have the right of an armed response to acts which do not constitute an armed attack.17 It is also worth recalling that according to the Court acts directly or indirectly
involving the use of force may constitute a breach of the customary principle of non-in-tervention.18 Nonetheless, they cannot as such be equated with an armed attack.
There-fore, as the ICJ underlined, the support given to armed bands could not be equated with an armed attack. It may constitute a breach of the principle of the non-use of force, but such support is of a lesser gravity than an armed attack.19 The Court denied that under
customary international law the provision of arms to the opposition in another State constituted an armed attack on that State.20 At the same time, the Court underlined that
the United States could not justify an intervention involving the use of force against a third State in response to an action which did not amount to an armed attack.21
The “threshold” criterion established by the ICJ is recognised by some scholars as not unreasonable in and of itself. They posit that the ICJ’s aim was not to define an armed attack per se, but rather to characterise those acts of force that may justify the exercise of the right to collective self-defence.22 There is, however, a wide range of scholarly views
on the relationship between an armed attack and the use of force under Article 2(4) of the UN Charter, including acts of aggression. One should keep in mind the essential legal controversies surrounding the use of force. The fiercest controversy concerns the rationae materiae characterisation of an aggression and an armed attack adopted by the Court. On one hand, there is the view that it does not recognise the concept of armed attack as tantamount to the concept of aggression,23 but on the other hand one can find
a well-established opposite view.24 At the same time, there are differences of opinion on
the relationship between an armed attack and aggression and the prohibition of threat or use of force against the territorial integrity or political independence of any State,
16 ICJ, Nicaragua, p. 101, para. 191. For criticism, see M. Kowalski in this volume, who recognises the
ICJ’s view in this respect as “taken ex cathedra”.
17 ICJ, Nicaragua, p. 110, para. 211.
18 Ibidem, pp. 109-110, para. 209. Thus they constitute violations of the “principle of State sovereignty”,
which for the Court is closely linked with the prohibition of the use of force and of non-intervention (p. 111, para. 212). In consequence, the ICJ stated that the United States violated Nicaragua’s sovereignty.
19 Ibidem, p. 127, para. 247. 20 Ibidem, p. 119, para. 230.
21 Ibidem, p. 127, 134, paras. 249, 269.
22 Yusuf, supra note 15, pp. 465-466; Ch. gray, International Law and the Use of Force (2nd ed.), Oxford
University Press, Oxford: 2004, pp. 141-158.
23 E.g. C. Mik, Agresja [Aggression], in: D. Pyć, J. Symonides (eds.), Wielka encyklopedia prawa [Large
encyclopedia of law], vol. Iv: Prawo międzynarodowe publiczne [Public international law], Fundacja Ubi societas, ibi ius, Warszawa: 2014, p. 22.
24 E.g. Y. Dinstein, Aggression, in: r. Wolfrum et al. (eds.), Max Planck Encyclopedia of Public
Inter-national Law, Oxford University Press, Heidelberg-Oxford: 2013, para. 33.
as enshrined in Article 2(4) of the UN Charter. Thus, either an “armed attack” and/or “aggression” are qualified as indications of a violation of the prohibition of the threat or use of force, a view which is supported by the ICJ’s “gravity” criterion; or every act of infringement of the prohibition set forth in Article 2(4) of the UN Charter amounts to an armed attack/aggression.25 In the former case, only when the “gravity” criterion is
met is the victim State entitled to claim the right of self-defence, whereas in the latter case every unlawful act of force triggers this right,26 although the very threat of the use
of force cannot in the latter case be treated as an armed attack triggering the “inherent” right to self-defence.27 The ICJ refrained from elaborating in its opinion with respect
to the lawfulness of a response to an imminent threat of armed attack, stating that “the Court expresses no view on that issue.”28 This is quite symptomatic omission, and
in-deed the issue remains very complex.
The view equating an armed attack and an aggression with Article 2(4) of the UN Charter seems to be better justified than the opposite view based on the “gravity” criterion, supported by the ICJ. The former denies a gradation of violations of the prohibition un-der Article 2(4). Significant arguments in favour of this approach follow from resolution 3314(XXIX) of the UN general Assembly on Definition of Aggression.29 Article 1 of the
Annex to resolution 3314 defines an aggression as “the use of 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 in this Defini-tion.” Accordingly, there are no grounds for recognising an armed attack as a special form of an aggression, or an aggression as a special form of the unlawful use of force. This is also confirmed by Article 3 of the Annex and Article 8-bis (1-2) of the rome Statute of the International Criminal Court of 17 July 1998. viewed from such a perspective, a peremptory character can be attributed not only to the prohibition of armed attack/ aggression, but also to the prohibition contained in Article 2(4) of the UN Charter.
25 For more on those views generally, see Dinstein, supra note 13, pp. 165-183; gray, supra note 22, pp.
108-120; M. Kowalski, Napaść zbrojna w prawie międzynarodowym – w poszukiwaniu współczesnej definicji [Armed attack in international law – a quest for a contemporary definition], 3 Studia Prawnicze 59 (2008); M. Kowalski, Armed Attack, Non-state Actors and a Quest for the Attribution Standard, 30 Polish Yearbook of International Law 101 (2010); Kowalski, supra note 10, pp. 76-83. Prior to the Nicaragua judgment the “gravity” criterion was supported by, e.g., K. Skubiszewski, The Use of force by States. Collective Security. Law
of War and Neutrality, in: M. Sørensenn (ed.), Manuel of Public International Law, Palgrave Macmillan,
London: 1968, p. 777. See M. Kowalski, The Use of Force: Contemporary Challenges in Light of Professor
Skubiszewski’s Legacy, 18 International Community Law review 109 (2016), pp. 120-128.
26 Cf. ICJ, Separate Opinion of Judge Simma, Oil Platforms (Islamic Republic of Iran v. United States of
America), Judgment, ICJ rep 2003, pp. 331-333, paras. 12-14.
27 Dinstein, supra note 24, para. 16.
28 ICJ, Nicaragua, p. 103, para. 194. However, in its advisory opinion in Nuclear Weapons the ICJ
un-derlined that: “The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4 of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal” (ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ rep 1996, pp. 226, 246, para. 47).
29 UN gA A/res/3314 (XXIX), 29th Sess., Supp. No. 31 (1974).
Roman Kwiecień
However, some authors present a quite different stance and challenge the equation of an armed attack and an aggression, and consequently, they are against the equating an armed attack with every illegal act of the use of force under Article 2(4) of the UN Char-ter.30 In this respect they therefore support the Nicaragua judgment. The ICJ itself referred
to the definition of aggression embodied in the resolution 3314(XXIX) as reflecting cus-tomary international law and equated an armed attack with an aggression.31 However,
as has been mentioned, it refused to acknowledge “less grave forms” of the use of force as an armed attack32 and clearly confirmed this stance in its Oil Platforms judgment.33
The eritrea-ethiopia Claims Commission, in its Partial Award of 19 December 2005,34
and the Institut de droit international in its above-mentioned resolution on the use of armed force of 2007, reiterated the Court’s stance. Paragraph 5 of the resolution reads:
An armed attack triggering the right of self-defence must be of a certain degree of gravity. Acts involving the use of force of lesser intensity may give rise to counter-measures in conformity with international law. In case of an attack of lesser intensity, the target State may also take strictly necessary police measures to repel the attack. It is understood that the Security Council may take measures referred to in paragraph 3.
Some of the problems surrounding this approach will be discussed further in this article.
3. tHe RIGHt oF selF-DeFenCe AnD tHe ConDItIons
oF Its exeRCIse, InCluDInG FRontIeR InCIDents
AnD FoRCIBle CounteR-MeAsuRes
The interdependent concepts of self-defence and an armed attack to a large de-gree create a self-regulating system. This is why the dictum of the Nicaragua judgment remains so important. But one has to keep in mind that the Court referred to the use
30 E.g. A. randelzhofer, Article 51, in: B. Simma (ed.), The Charter of the United Nations: A Commentary
(2nd ed.), Berlin: 2002, pp. 795-796; g. Nolte, A. randelzhofer, Article 51, in: B. Simma et al. (eds.), The
Charter of the United Nations: A Commentary (3rd ed.), vol. II., Oxford University Press, Oxford: 2012, pp.
1401-1403; Mik, supra note 23, p. 22.
31 ICJ, Nicaragua, pp. 103-104, para. 195.
32 Here it is worthwhile to recall once again the following well-known sentence from the judgment:
“[I]t will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”. This standpoint was justified by the ICJ by, inter alia, the Declaration of the principles of international law of 1970 (UN gA A/res/2625 (XXv)) (ICJ, Nicaragua, p. 101, para. 191). At the end of its judgment the ICJ once again underlined that the illegal use of force could be marked by “lesser gravity than an armed attack” (Ibidem, pp. 126-127, para. 247).
33 ICJ, Oil Platforms, pp. 186-187, para. 51, where the ICJ repeated the quoted above sentence from
the Nicaragua judgment.
34 eritrea ethiopia Claims Commission, Partial Award, Jus ad Bellum, Ethiopia’s Claims 1-8, 19
December 2005, para. 11, available at: https://pcacases.com/web/sendAttach/763 (accessed 30 May 2017). Judge Yusuf who found the ICJ’s stance with reference to armed attack “not, in itself, unreasonable” nev-ertheless criticized the eritrea-ethiopia Commission for its approach. He stated that the “threshold” of an armed attack outlined by the Commission “might be considered too high” (Yusuf, supra note 15, p. 470).
of force in the Nicaragua decision in the broader context than that of self-defence only, since the ICJ also spoke of the forcible counter-measures and frontier incidents. As “measures short of war”, they often occur in international practice, including the fron-tier incidents which the Court called “incursions”. They touch the concept of an armed attack and form the “iron triangle”, so to speak, of contemporary jus ad bellum: armed attack, forcible counter-measures, and self-defence.
The ICJ deliberated whether “measures which do not constitute an armed attack but may nevertheless involve a use of force”35 could be forcibly repelled by a target State and
a third State acting within collective self-defence. In the Court’s view, States do not have a right of collective armed response to acts which do not constitute an armed attack.36
In other words, the wrongful act which gives rise to a lawful forcible collective response has to constitute an armed attack. But what about the right of individual self-defence? This “inherent right” cannot have a punitive character, nor be reprisals or counter-mea-sures. The right of self-defence is aimed at halting and repelling an armed attack. Forc-ible counter-measures are recognised as unlawful in the Declaration on Principles of International Law of 1970, UN Security Council resolutions, and subsequent decisions of the ICJ.37 The difference between the exercise of the right of self-defence and
forc-ible counter-measures is flexforc-ible in practice, and thus it may be difficult to distinguish between them. Frontier incidents depict this very clearly. In the Nicaragua decision the ICJ objected to treating each cross-border incursion in isolation as an armed attack. However, when speaking of trans-border incursions into Honduras and Costa rica it seemed to accept the possibility of an accumulation of events amounting to an armed attack. The absence of their clear characterisation was justified as follows:
very little information is available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an armed attack by Nicaragua on either or both States.38
Although the support of armed bands may constitute a breach of the principle of non-use of force and non-intervention, it cannot be equated, according to the Court, with an armed attack. It has a “lesser gravity” than an armed attack.39 Thus the Court
35 ICJ, Nicaragua, p. 110, para. 210.
36 Ibidem, para. 211. But in para. 249 (p. 127) the Court left an “open gate” when it stated that the
wrongful forcible acts “could only have justified proportionate counter-measures”. However, they could not be used to justify counter-measures taken by a third State, which is why the Court recognised the US activities against Nicaragua as unlawful.
37 See gray, supra note 22, pp. 121-125.
38 ICJ, Nicaragua, pp. 119-120, para. 231. In ICJ, Oil Platforms, pp. 186-187, para. 51 and in The
Land and Maritime Boundary between Cameron and Nigeria (Cameron v. Nigeria: Equatorial Guinea inter-vening), Judgment, ICJ rep 2002, p. 303, para. 323, the ICJ seemed to acknowledge an “accumulation of
events” as an “armed attack”, but it did not develop then issue of an appropriate forcible response within the right of self-defence with respect to frontier incidents.
39 ICJ, Nicaragua, p. 127, para. 247.
Roman Kwiecień
distinguished, based on its “gravity” criterion, between an armed attack and a mere frontier incident. Yoram Dinstein labels the question of frontier incidents as “particu-larly bothersome”.40 Indeed, there is no reason in practice, based on the law, to remove
small-scale incidents of the use of force from the spectrum of armed attacks. Other emi-nent scholars have supported this reasoning. Joseph L. Kunz wrote: “If ‘armed attack’ means illegal armed attack it means, on the other hand, any illegal armed attack, even a small border incident.”41 to which gerard Fitzmaurice stated, in a rather ironical way,
that: “[t]here are frontier incidents and frontier incidents. Some are trivial, some may be extremely grave.”42 Indeed, as far as the material aspect of armed attack is concerned,
the concept elaborated by the ICJ based on the “gravity” criterion may undermine the right of self-defence. Moreover, “strictly necessary policy measures to repel the attack”, which were referred to in the resolution of the Institut de droit international, do not need to be effective enough in a given case. One should remember that every act of use of force is assessed under the legal conditions of necessity and proportionality. This also concerns small-scale armed acts. Likewise, forcible responses to wrongful forcible acts are adjudged lawful or unlawful based on these conditions. Otherwise, i.e. in the event the right to forcibly respond to them within the concept of self-defence is denied, a targeted State can turn out to be the real victim State.
However, the legal justification for actions of target States is not obvious. taking into account the fundamental significance of peace and the alleged peremptory charac-ter of the prohibition of threat or use of force, one can argue that acts of armed attacks impose negative obligations on all States, i.e. the prohibition against supporting the aggressor or recognising the territorial acquisitions gained as a result of an armed attack. But does an act of armed attack create positive obligations, in particular, a right to actio popularis? After all, maintaining international peace and security is the obligation of the ‘international community as a whole’ and embodies a genuine community interest. As far as collective self-defence is concerned, it is worth referring once again to Yoram Dinstein’s opinion. According to him:
an armed attack is like an infectious disease in the body politic of the family of nations. every State has a demonstrable self-interest in the maintenance of international peace and security, for once the disease starts to spread there is no telling if and where it will stop. (…) As long as the system of collective security within the UN Organization is ineffective (…), collective self-defence constitutes the sole insurance policy against an armed attack.43
Nevertheless, the ICJ in the Nicaragua judgment established strict conditions on the exercise of the right of collective self-defence. Thus, one has to return nolens volens to the concept of armed attack.
40 Dinstein, supra note 13, p. 175.
41 J.L. Kunz, Individual and Collective Self-Defence in Article 51 of the Charter of the United Nations, 41
American Journal of International Law 872 (1947), p. 878.
42 g.g. Fitzmaurice, The Definition of Aggression, 1 International & Comparative Law Quarterly
137 (1952), p. 139.
43 Dinstein, supra note 13, p. 225.
