Exploring the limits of international law relating to the use of force in self-defence

European Journal of International Law

Volumn 16, Issue 3, 2005, Pages 499-524

  Ochoa Ruiz, Natalia ^a,b   Salamanca Aguado, Esther ^b  

^a UNIVERSIDAD COMPLUTENSE DE MADRID   (Spain)

^b UNIVERSIDAD EUROPEA DE MADRID   (Spain)

Author keywords

[No Author keywords available]

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EID: 27744461975     PISSN: 09385428     EISSN: None     Source Type: Journal    
DOI: 10.1093/ejil/chi128     Document Type: Review

References (204)

1. See generally L.F. Damrosch, L. Henkin, R. Crawford Pugh, O. Schachter, and H. Smit, International Law. Cases and Materials (2001), at 961-972
2. Darby, 'Self'Defense in Public International Law: The Doctrine of Pre-emption and Its Discontents', in J. Brömer et al. (eds.), Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress (2005), at 29-34.
3. Cf O'Connell, 'The Myth of Preemptive Self-Defence', paper prepared in conjunction with The ASIL Presidential Task Force on Terrorism (2002), at 2 (footnote 10). See also at 8-11.
4. Case concerning Oil Platforms (Iran v United States of America) Judgment of 6 Nov. 2003, at para. 78 (emphasis added) www.icj-cij.org/icj.
5. Ibid., at para. 125(1).
6. Art. 59 of the Statute of the International Court of Justice.
7. Some Judges of the Court in the Oil Platforms case, Judgment of 6 Nov. 2003, consider that the first part of the dispositif violates the non ultra petita rule (see especially the Separate Opinions of Judges Higgins, Buergenthal and Kooijmans, at paras. 9-24, 27-35, and 4-10, respectively). In Judge Buergenthal's view, 'the non ultra petita rule prevents the Court from making a specific finding in its dispositif that the challenged action, while not a violation of Article X, paragraph 1, is nevertheless not justified under Article XX, paragraph 1 (d), when the Parties in their submission did not request such a finding with regard to that Article, which they did not do in this case (Separate Opinion of Judge Buergenthal, at para. 6). Similarly, Judge Kooijmans observes that 'the first part of that paragraph [of the dispositif] is redundant: It introduces an obiter dictum into the operative part of a judgment' (Separate Opinion of Judge Kooijmans, at para. 33). In contrast, Judge Simma accepts, in his separate Opinion, that, 'since [the Court's] jurisdiction is limited to the bases furnished by the 1955 Treaty, it would not have been possible for the Court to go as far as stating in the dispositif of its Judgment that, since the United States attacks on the oil platforms involved a use of armed force that cannot be justified as self-defence, these attacks must not only, for reasons of their own, be found not to have been necessary to protect the essential security interests of the United States within the meaning of Article XX of the Treaty; they must also be found in breach of Article 2 (4) of the United Nations Charter. What the Court could have done, without neglecting any jurisdictional bounds as I see them, is to restate the backbone of the Charter law on use of force by way of strong, unequivocal obiter dicta' (Separate Opinion of Judge Simma, at para. 6).
8. See Gray, 'The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua', 14 EJIL (2003) 867
9. García Rico, 'La legitima defensa en el Derecho Internacional contemporáneo: A¿lgo nuevo bajo el sol tras la sentencia de la CIJ sobre el asunto de las plataformas petrolíferas?', 55 Revista Española de Derecho Internacional (2003) 819
10. Gattini, 'La Legittima Difesa nel Nuovo Secolo: La Sentenza della Corte Internazionale di Giustizia nell'affare delle Piattaforme Petrolifere', 87 Rivista Italiana di Diritto Internazionale (2004) 147
11. Bekker, 'ICJ Judgment regarding U.S. attack on Iranian Oil Installations during the Iran-Iraq War', 98 AJIL (2004) 550
12. Laursen,'The Judgment by the International Court of Justice in the Oil Platforms Case', 73 Nordic J Int'l L (2004) 135
13. Symposium: Reflections on the ICJ's Oil Platforms Decision, 29 Yale J Int'l L (2004) 291.
14. According to Art. I, '[t]here shall be firm and enduring peace and sincere friendship between the United States of America and Iran.' Art. X(1) states that '[b]etween the territories of the two High Contracting Parties there shall be freedom of commerce and navigation'.
15. Art. IV(1) reads as follows: '[e]ach High Contracting Party shall at all times accord fair and equitable treatment to nationals and companies of the other High Contracting Party, and to their property and enterprises; shall refrain from applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests; and shall assure that their lawful contractual rights are afforded effective means of enforcement, in conformity with the applicable laws.'
16. This compromissory clause is similar to Art. XXIV of the 1956 Nicaragua-United States Treaty of Friendship, Commerce and Navigation invoked by Nicaragua in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), hereinafter the Nicaragua case ([1986] ICJ Rep 14). This treaty is an example of a 'friendship, commerce and navigation' treaty (FCN treaty) that the United States used to enter into with selected countries for bilateral trade purposes, but which in recent years has been discontinued in favour of another form of bilateral investment treaty (BIT), which typically does not include a compromissory clause providing for the Court's jurisdiction.
17. See Bekker, 'The World Court Finds that U.S. Attacks on Iranian Oi
18. A similar argument was used by the USA in the Nicaragua case, supra note 10. The US' viewpoint was that the jurisdiction accorded by Art. 36(1), where included in American FCN treaties, would apply only to the explicit terms of the treaty. Certain subjects deemed to be of special domestic concern and, in particular, matters of military security were not part of the jurisdictional bargain.
19. See Reisman, 'The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua', 81 AJIL (1987) 166, at 171.
20. In the US' opinion, '[a]lthough Iran seeks to characterize this case as one involving violations of the 1955 Treaty, it is clear from its Application and Memorial that Iran is attempting to use the Treaty in order to bring before the Court claims that the United States violated provisions of the United Nations Charter and principles of customary international law relating to the use of force by one State against another' (Oil Platforms case, Preliminary Objection, Judgment of 12 Dec. 1996 [1996] II ICJ Rep 803, Part III, Chapter I, at para. 3.01). The United States further noted that '[t]he 1955 Treaty is concerned with the commercial interests of the nationals of the two countries in the territories of the other party and with certain consular matters, not with the consequences of events such as those with which this case is concerned, involving hostile encounters between armed forces of the two Parties in the context of an ongoing armed conflict' (ibid., Chapter II, at para. 3.14).
21. Ibid., at para. 3.37.
22. The same argument was invoked by the USA in the Nicaragua case, supra note 10. However, in its judgment of 27 June 1986, the Court conceded that the effect of Art. XXI of the FCN Treaty is to reserve certain matters from the Court's jurisdiction, but held that the determination of whether a matter is excluded is not within the unilateral competence of the state party. It is to be decided by the Court:
23. ibid., at para. 222 and paras. 271 ff.
24. Case concerning Oil Platforms (Iran v United States of America), Preliminary Objection, Judgment of 12 Dec, 1996 [1996] II ICJ Rep 803, at 820, para. 53.
25. Ibid., at 811, para. 21.
26. According to the Court, the text of Art. XX(1)(d) of the Treaty, invoked by the US, 'could be interpreted as excluding certain measures from the actual scope of the Treaty and, consequently, as excluding the jurisdiction of the Court to test the lawfulness of such measures. It could also be understood as affording only a defence of the merits. The Court, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), adopted the latter interpretation for the application of an identical clause included in the Treaty of Friendship, Commerce and Navigation concluded between the United States and Nicaragua on 21 January 1956 ... The Court sees no reason to vary the conclusions it arrived at in 1986': Ibid., at 810, para. 20.
27. Ibid.
28. CR 2003/16, at para. 12.
29. Supra note 3, at para. 31.
30. Ibid., at 811, at para. 20.
31. Supra note 3, at para. 33.
32. Ibid., at para. 35.
33. Supra note 10, at 140, para. 280.
34. Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua, signed at Managua on 21 Jan. 1956, 367 UNTS (1960) 4.
35. Supra note 3, at para. 37.
36. See also Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) [1958] ICJ Rep 55, at 62.
37. Ibid.
38. In Judge Parra-Aranguren's opinion, in accordance with its judgment of 12 Dec. 1996, the Court should have considered Art. XX(1)(d) as a defence to be examined only in the event of its having previously established that the USA had violated its obligations under Art. X(1) of the Treaty. The task of the Court was to examine and determine whether this country had violated Art. X(1). Only if the Court had come to the conclusion that the USA had breached this provision would it have had jurisdiction to begin considering the defence advanced by the US to justify its military actions against Iran. Inasmuch as the Court found that it could not uphold Iran's submission that those military actions constituted a breach of the obligations of the USA under Art. X(1), it did not have jurisdiction to examine the defences advanced by the USA on the basis of Art. XX(1)(d): Separate Opinion of Judge Parra-Aranguren, supra note 3, at paras. 5, 13, and 14.
39. This opinion is shared by Gattini, supra note 7, at 152.
40. Separate Opinion of Judge Higgins, supra note 3, at para, 7.
41. Case concerning the Arrest Warrant 11 of April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 Feb. 2002 http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm, at 18-19, para. 43.
42. Supra note 3, at para. 40.
43. Ibid.
44. Art. 36(2) of the Statute of the International Court of Justice.
45. Supra note 3, at para. 224.
46. Ibid.
47. Ibid, at para. 282.
48. Ibid.
49. Supra note 3, at para. 43.
50. Iran's principal line of argument was based precisely on equating the 'measures necessary to protect essential security interests' with 'self-defence'. It stated that '[t]here is one 'standard of necessity' for the use of force in international relations; it is a Charter standard, and it is peremptory. Paragraph 1(d) should not be interpreted to adopt any different standard': CR 2003/8, at para. 30. The consequence of the application of this 'objective standard' by the Court should be that a peremptory norm of international law must be allowed peremptory effect at the level of the interpretation of any agreement governed by international law, including the 1955 Treaty. For these reasons, Art. XX(1)(d) could not be interpreted so as to create a defence of justification in relation to a use of force unlawful under the Charter because it would plainly exceed the requirements of self-defence (Iran's Reply, at para. 7.76).
51. See the Separate Opinions of Judges Higgins, Buergenthal and Kooijmans, supra note 7, at paras. 40-54, 20-32, and 43-52, respectively.
52. See also Berman, 'Treaty "Interpretation" in a Judicial Context', in: Symposium, supra note 7, at 315, 319.
53. Supra note 3, at para. 40 (emphasis added).
54. CR 2003/11, at para. 13.12.
55. Supra note 3, at para. 42.
56. Ibid., at para. 41.
57. The US applied the principle of lex specialis. It considered the 1955 Treaty as a 'self-contained regime', and therefore it understood that the notion of 'measures necessary to protect its essential security interests' under Art. XX of the 1955 Treaty was distinct from the notion of self-defence under the Charter: CR 2003/12, at paras. 17.20-17.21.
58. Ibid., at para. 41.
59. See supra note 8. The Court found in 1996 that this provision 'is such as to throw light on the interpretation of the other Treaty provisions' (supra note 14, at 815, para. 31),
60. quoted by the Court in its Judgment, supra note 3, at para. 41.
61. Berman, supra note 7, at 320.
62. Ibid., at 319-320.
63. The US interpreted that a measure may be 'necessary to protect the essential security interests'of a party even if the conditions placed on self-defence by international law are not met: Ibid., at paras. 17.27 and 18.2.
64. In effect, to the US, nothing in Art. XX suggests that military action is ruled out as one possible means of protecting a party's essential security interests: Ibid., at para. 18.19.
65. In the circumstances of this case, the US maintained that it had legitimately used armed force because of a need to protect its essential security interests when diplomatic and peaceful measures had failed ('as a last resort'), and when the use of force had proven to be 'reasonable and appropriate': Ibid., at para. 18.25).
66. But, at the same time, the US tried to make clear that this does not mean that the 1955 Treaty authorizes it to violate the obligations arising from the Charter and general international law. What the US does argue is that the Court's jurisdiction is limited to violations of the provisions of the Treaty. The fact that this Treaty fails to prohibit certain actions does not imply that such actions are authorized by general international law: CR 200 3/18,
67. supra note 3, at para. 27.3.
68. See 'Report of the Study Group of Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law' (under the title: 'Hierarchy in international law: jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations, as conflict rules'), International Law of Commission, Fifty-Sixth session, doc. A/CN.4/L.663/Rev.1, at paras. 57-63.
69. Ibid., at para. 14, at 7.
70. See Reports of the International Law Commission on the Work of its Fifty-fifth and Fifty-sixth Sessions, on 'Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law', specifically the section entitled 'Discussion on Outline Concerning the Interpretation of Treaties in the Light of "Any Relevant Rules of International Law Applicable in Relations between the Parties" (Art. 31(3)(c) of the Vienna Convention on the Law of Treaties), in the Context of General Developments in International Law and Concerns of the International Community', Official Records of the General Assembly, doc. A/58/10, at paras. 415-435; doc, A/59/10, at paras. 345-351.
71. Separate Opinion of Judge Higgins, supra note 3, at para. 46.
72. See also Berman, supra note 7, at 320.
73. Doc. A/59/10, supra note 51, at para. 349.
74. See also Separate Opinion of Judge Weeramantry in Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia) [1997] ICJ Rep 114, at 7, para. 114.
75. Ibid., at para. 44.
76. See in this respect the Separate Opinion of Judge Simma, supra note 6, at paras. 12-13.
77. See also Gattini, supra note 7, at 168-169
78. Laursen, supra note 7, at 155-160.
79. In fact, the Court was rather ambiguous in this regard in the Nicaragua case (supra note 10, at paras. 211-249).
80. In Judge Higgins' opinion, '[w]hether the Court envisaged only non-forceful countermeasures is, for the moment, a matter of conjecture. That, too, is not addressed in the present Judgment. The Court simply moves on from the Court's 1986 statement that a necessary measure to protect essential security interests could be action taken in self-defence to the rather different determination that an armed attack on a State, allowing of the right of self-defence, must have occurred before any military acts can be regarded as measures under Article XX, paragraph (1) (d). But some stepping stones are surely needed to go from one proposition to the other': Separate Opinion of Judge Higgins,
81. supra note 3, at para. 43).
82. International Law Commission, Report on the Work of its Fifty-Third Session, Official Records of the General Assembly, Fifty-Sixth Session, Supplement No. 10 (A/56/10).
83. Art. 50(1)(a).
84. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 66, paras. 40-44.
85. See also: Corfu Channel Case (United Kingdom v. Albania) [1949] ICJ Rep 4.
86. Letter from the US Permanent Representative of 19 Oct. 1987. S/19219; reproduced in para. 48 of the Judgment.
87. Ibid. (emphasis added).
88. At para. 51 of the 2003 Oil Platforms judgment, supra note 3.
89. Letter from the US Permanent Representative of 18 Apr. 1988, S/19791; reproduced in para. 67 of the Judgment.
90. Para. 71 of the 2003 Oil Platforms judgment, supra note 3.
91. Ibid., at paras. 76-77.
92. The Court has recently stressed in this regard that, for the right of self-defence to be triggered, there must be an armed attack imputable to a foreign state (Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, of 9 July 2004, at para. 139).
93. Randelzhofer, 'Article 51', in B. Simma et al., The Charter of the United Nations. A Commentary (2002), vol. 1 at 790.
94. Nevertheless, in the 1986 Nicaragua judgment, the Court had affirmed quite optimistically that '[t]here appears now to be general agreement on the nature of acts which can be treated as constituting armed attacks': Supra note 10, at para. 195.
95. Ibid., at para. 19.
96. Definition of Aggression (GA Res. 3314 (XXIX), 14 Dec. 1974), Annex, GAOR 29th Sess. Supp. No. 31 (Vol. 1), A/9631.
97. At para. 195 of the Nicaragua judgment, supra note 3.
98. At paras. 51 and 71 of the 2003 judgment, supra note 3.
99. Ibid., at para. 61.
100. Ibid., at para. 62.
101. Ibid., at para. 64.
102. Ibid., at para. 71.
103. Ibid., at para. 72.
104. For a critique, see Taft, 'Self-defence and the Oil Platforms Decision', in: Symposium, supra note 8, at 295, 300-302.
105. See also Randelzhofer, supra note 68, at 791-792.
106. Laursen, supra note 7, at 153-155.
107. At para. 72 of the 2003 judgment, supra note 3.
108. It was the Iranian contention that the word 'fleets' had been deliberately chosen in order to make clear that only massive acts of violence against the merchant shipping of a state, attacking whole fleets, would amount to an act of aggression: See Iran's Reply, supra note 3, at para. 7.38.
109. Cf CR 2003/7, supra note 3, at 44, para. 49.
110. See also ibid., at 43, para. 46.
111. Iran's Reply, supra note 3, at paras. 7.37-7.39.
112. Cf CR 2003/12, supra note 3, at para. 18.44;
113. see also United States's Rejoinder, supra note 3, at paras. 5.14-5.22.
114. At para. 64 of the 2003 judgment, supra note 3.
115. CR 2003/6, supra note 3, at paras. 21-55
116. CR 2003/7, supra note 3, at paras. 29-64.
117. United States' Rejoinder, supra note 3, at paras. 5.15 and 5.23.
118. CR 2003/7, supra note 3, at 44, para. 49.
119. At para. 64 of the 2003 judgment, supra note 3.
120. Ibid.
121. Taft, supra note 79, at 302-303.
122. See Randelzhofer, supra note 68, at 798, para. 26
123. Gattini, supra note 7, at 161, footnote 58.
124. Iran's Reply, supra note 3, at para. 7.13(5).
125. Iran's Memorial, supra note 3, at paras. 4.30-4.33.
126. United States' Counter Memorial, supra note 3, at para. 4.27.
127. CR 2003/7, supra note 3, at 30, para. 3 ff.
128. United States' Rejoinder, supra note 3, at para. 5.33.
129. United States'Counter Memorial, supra note 3, at paras. 4.01 and 4.05.
130. Case concerning Oil Platforms, supra note 3, at para. 49.
131. United States'Counter Memorial, supra note 3, at para. 4.10
132. CR 2003/7, supra note 3, at para. 3.
133. Case concerning Oil Platforms, supra note 3, at para. 49.
134. CR 2003/7, supra note 3, at 31, para. 6.
135. United States' Counter-Memorial, supra note 3, at para. 4.01,
136. and United States' Rejoinder, supra note 3, at para. 5.35.
137. Iran's Reply, supra note 3, at para. 7.13(3).
138. The Court also dismissed the argument of the accumulation of acts giving rise to an armed attack because it evaluated each of the alleged attacks individually and concluded that '[e]ven taken cumulatively... these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a 'most grave' form of the use of force': This compromissory clause is similar to Art. XXIV of the 1956 Nicaragua-United States Treaty of Friendship, Commerce and Navigation invoked by Nicaragua in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), hereinafter the Nicaragua case ([1986] ICJ Rep 14). This treaty is an example of a 'friendship, commerce and navigation' treaty (FCN treaty) that the United States used to enter into with selected countries for bilateral trade purposes, but which in recent years has been discontinued in favour of another form of bilateral investment treaty (BIT), which typically does not include a compromissory clause providing for the Court's jurisdiction. supra note 10, at para. 64 of the judgment.
139. See: Momtaz, 'Did the Court Miss an Opportunity to Denounce the Erosion of the Principle Prohibiting the Use of Force?',in: Symposium, supra note 7, at 307, 313.
140. R. Higgins, The Development of International Law Through the Political Organs of the United Nations (1963), at 5.
141. Para. 76 of the judgment, supra note 3, at 245, para. 41, reads as follows: '[t]he conditions for the exercise of the right of self-defence are well settled: As the Court observed in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 'The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law';
142. and in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court referred to a specific rule 'whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it' as 'a rule well established in customary international law': Supra note 10, at 94, para, 176.
143. Paras. 51 and 74 of the judgment, supra note 3.
144. In doing so, the Court has endorsed an argument accepted by both parties: In its notifications to the UN Security Council, the US had attempted to justify its view that the oil platforms were military targets; furthermore, in its Counter Memorial, it argued that 'the U.S. attacks on the platforms satisfied all other applicable requirements of the law of armed conflict': United States' Counter Memorial, supra note 000, at para. 4.46.
145. Conversely, Iran attempted to prove that the platforms were commercial facilities and not military targets: CR 2003/6, supra note 3, at paras. 31-42.
146. [1996] ICJ Rep 226, at para. 42.
147. Ibid., at para. 78.
148. At para. 76 of the 2003 Judgment, supra note 3.
149. Iran's Reply, supra note 3, at para. 7.47.
150. See also: Iran's, Memorial, supra note 3, at para. 4.32.
151. Iran's Reply, supra note 3, at para. 7.47.
152. See also: Iran's Memorial, supra note 3, at para. 4.31.
153. Iran's Memorial, supra note 3, at paras. 4.81-4.82.
154. CR 2003/7, supra note 3, at 47, para. 59.
155. Ibid., at para. 57.
156. United States' Counter Memorial, supra note 3, at para. 4.37.
157. Ibid., at para. 4.38.
158. United States' Rejoinder, supra note 3, at para. 5.35.
159. United States' Counter Memorial, supra note 3, at para. 4.41.
160. Para. 76 of the 2003 Judgment, supra note 3.
161. As Judge Elaraby pointed out in his Dissenting Opinion, '[i]f such use of force, as the Court held, was not exercised in self-defence then it would amount to armed reprisal': Supra note 3, at para, 1.2.
162. The Court was certainly not empowered to declare the US responsible for these actions, but it could at least have indicated that it was in breach of its obligations under the Charter and customary international law. As Judge Simma put it, 'since its jurisdiction is limited to the bases furnished by the 1955 Treaty, it would not have been possible for the Court to go as far as stating in the dispositif of its Judgment that, since the United States attacks on the oil platforms involved a use of armed force that cannot be justified as self-defence, these attacks must not only, for reasons of their own, be found not to have been necessary to protect the essential security interests of the United States within the meaning of Article XX of the Treaty; they must also be found in breach of Article 2 (4) of the United Nations Charter':
163. see: Separate Opinion of Judge Simma, supra note 3, at para. 6.
164. United States' Counter Memorial, supra note 3, at Part IV, Chapter VI, paras. 4.36-4.44
165. Iran's Reply, supra note 3, at para. 7.51.
166. The condition of immediacy had been mentioned by the Court in the 1986 Nicaragua judgment (supra note 10, at para. 237) as an element of the condition of necessity: '[o]n the question of necessity, the Court observes that the United States measures... cannot be said to correspond to a 'necessity' justifying the United States action against Nicaragua on the basis of assistance given by Nicaragua to the armed opposition in El Salvador. First, these measures were only taken, and began to produce effects, several months after the major offensive of the armed opposition against the Government of El Salvador had been completely repulsed .... Accordingly, it cannot be held that these activities were undertaken in the light of necessity'.
167. García Rico, supra note 7, at 831.
168. In its notifications to the Security Council, the US had even argued that diplomatic measures were not a viable means of deterring Iran from its attacks and that '[a]ccordingly, armed action in self-defense was the only option left to the United States to prevent additional Iranian attacks' (see paras. 48, 49, and 67 of the 2003 Judgment, supra note 3.
169. See also: United States' Counter Memorial, supra note 3, at para. 4.23
170. United States' Rejoinder, supra note 3, at paras. 5.45-5.47).
171. On Iran's view in this respect, see CR 2003/10, supra note 3, at 12, para. 8.
172. Para. 77 of the 2003 Judgment, supra note 3.
173. Iran's Memorial, supra note 3, at para, 4.21.
174. Ago, 'Addendum to the Eighth Report on State Responsibility, A/CN.4/318, Add. 5-7', in Yearbook of the International Law Commission (1980), vol. 2, Part 1, at 51-70, paras. 82-124, at 69, para. 121.
175. Iran's Memorial, supra note 3, at paras. 4.25-4.26, 4.34, and 4.38 ff.
176. García Rico, supra note 7, at 832.
177. In this issue, the Court has endorsed the US' interpretation that its actions should be 'proportional to Iran's armed attacks': United States' Counter-Memorial, supra note 3, at para. 4.01.
178. Supra note 10, at 94, para. 176.
179. CR 2003/7, supra note 3, at 48, para. 61.
180. Ibid., at paras. 62-67.
181. See: Iran's Memorial, supra note 3, at paras. 4.25-4.26, 4.50, 4.73, inter alia, and 4.81 ff.
182. CR 2003/7, supra note 3, at 17, para. 28.
183. CR 2003/18, supra note 3, at para. 28.17.
184. CR 2003/12, supra note 3, at para. 18.59.
185. See also: United States' Counter Memorial, supra note 3, at paras. 4.33-4.34
186. ('The gravity of those attacks was magnified by the history of unlawful and aggressive Iranian conduct and by Iran's clear hostility to the continued operation of U.S. vessels in the Gulf... Thus, U.S. authorities had to identify proportionate military actions that could help to restore the safety of U.S. vessels'), and Rejoinder, supra note 3, at paras. 5.48-5.50.
187. Para. 51 of the 2003 judgment, supra note 3.
188. Similarly, in the Nicaragua judgment of 1986, the facts did not invite the Court to consider the possible lawfulness of a response to an imminent threat of an armed attack which has not yet taken place, and so the Court expressed no view on that issue: Supra note 10, at paras. 35 and 194.
189. See President Bush's Graduation Speech delivered at West Point, New York. 1 June 2002: 'our security will require all Americans... to be ready for preemptive action when necessary to defend our liberty and to defend our lives'. Likewise, the US National Security Strategy includes the following two goals: '[t]o strengthen alliances to defeat global terrorism and work to prevent attacks against us and our friends, and to prevent our enemies from threatening us, our allies, and our friends, with weapons of mass destruction': The White House, The National Security Strategy of the United States of America, 17 Sept. 2002. This document also affirms (at 4) that 'America will act against such emerging threats before they are fully formed. We cannot defend America and our friends by hoping for the best. So we must be prepared to defeat our enemies' plans, using the best intelligence and proceeding with deliberation.'
190. See also European Union, A Secure Europe in a Better World. European Security Strategy, Brussels, 12 Dec. 2003, at 7 and 11.
191. O'Connell, supra note 2, at 2 (footnote 10).
192. CR 2003/15, supra note 3, at para. 18.51,
193. and CR 2003/18, supra note 3, at paras. 28.14-28.15.
194. Ibid., at para. 28.14. In justifying Operation 'Enduring Freedom' against in Afghanistan, the US and UK argued that the 11 Sept. 2001 attacks were part of a series of attacks on the US which began in 1993 with the first attack on the World Trade Center and that future attacks were probable. The Joint Resolution approved by the House and the Senate of the USA on 15 Sept. 2001 acknowledged that these attacks 'render it both necessary and appropriate that the United States exercise its right to self-defence', and authorizes the President of the United States 'to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks..., or harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States'. One day after launching the military action in Afghanistan, the US' representative argued before the UN Security Council, on 7 Oct. 2001, that 'in response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States'.
195. Resolution 1368 (2001) UN Doc. S/RES/1368 (2001). These references to the 'threat of peace' and 'the right of self-defence' were reaffirmed in the preamble to Resolution 1373 (2001) UN Doc. S/RES/1373 (2001), adopted by the Security Council on 28 Sept. 2001. These resolutions were endorsed by the NATO Council (Press Release 124 (2001)) and the Member States of the EU (Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, at 1), among others.
196. See Cassese, 'Terrorism is Also Disrupting some Crucial Categories of International Law', 12 EJIL (2001) 1997
197. Condorelli, 'Les attentats du 11 September et leur suites: Où va le Droit international?', 105 Revue Générale de Droit International Public (2001) 829
198. Corten and Dubuisson,'Opération «liberté immuable :» Une extension abusive du concept de légitime défense', 106 Revue Générale de Droit International public (2002) 51
199. Schrijver, 'Responding to International Terrorism: Moving the Frontiers of International Law for 'Enduring Freedoms' [2001] NILR 271
200. González Vega, 'Los atentados del 11 de septiembre, la operación "libertad duradera" y el derecho de legítima defensa', 58 Revista Española de Derecho Internacional (2001) 248
201. Bermejo García, 'El Derecho Internacional frente al terrorismo: n¿uevas perspectivas tras los atentados del 11 de septiembre?' [2001] Anuario de Derecho Internacional 5
202. Ratner, 'Jus ad Bellum and Jus in Bello After September 11', 96 AJIL (2002);
203. Charney, 'The Use of Force Against Terrorism and International Law', 95 AJIL (2001) 835
204. and Franck, 'Terrorism and the Right of Self-Defense', 95 AJIL (2001) 838.