(a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof;

(b) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state;

(c) The blockade of the ports or coasts of a state by the armed forces of another state;

(d) An attack by the armed forces of a state on the land, sea or air forces, marine and air fleets of another state;

(e) The use of armed forces of one state, which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state;

(g) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein.

ARTICLE 4

The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.

ARTICLE 5**

No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.

A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

No territorial acquisition or special advantage resulting from aggression are or shall be recognized as lawful.

ARTICLE 6

Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter including its provisions concerning cases in which the use of force is lawful.

ARTICLE 7

Nothing in this definition, and in particular Article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.

ARTICLE 8

In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.

*Explanatory note: In this definition the term "state"

(a) is used without prejudice to questions of recognition or to whether a state is a member of the United Nations, and

(b) includes the concept of a "group of states" where appropriate. **On the recommendation of its working group, the committee agreed on Apr. 12 to include in its report to the General Assembly the following explanatory notes on Articles 3 and 5:

1. With reference to Article 3, paragraph (b), the Special Committee agreed that the expression "any weapons" is used without making a distinction be

tween conventional weapons, weapons of mass destruction and any other kind of weapon.

2. With reference to Article 5, paragraph 1, the Committee had in mind, in particular, the principle contained in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations according to which "No state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state." 3. With reference to Article 5, paragraph 2, the words "international responsibility" are used without prejudice to the scope of this term.

4. With reference to Article 5, paragraph 3, the Committee states that this paragraph should not be construed so as to prejudice the established principles of international law relating to the inadmissability of territorial acquisition resulting from the threat or use of force.

On October 18, 1974, Mr. Rosenstock made another statement on the draft definition to the Sixth Committee of the U.N. General Assembly, during its debate on the subject. With respect to the effect and significance of the definition, as adopted by the Special Committee, Mr. Rosenstock said:

What the Special Committee has forwarded to the Assembly is not a substitute for the type of definition one would seek in a dictionary. That would serve no useful purpose; we are not defining a term in the abstract but seeking to provide guidance for the understanding of the meaning and function of the term as set forth in Article 39 of the Charter of the United Nations.

The definition, moreover, does not and should not seek to establish obligations and rights of states for that is not the function of Article 39 of the Charter. The United Nations has already completed a major exercise in the field of rules concerning use of force when it adopted the Friendly Relations Declaration. The Definition of Aggression neither adds to nor subtracts from that important Declaration. The draft text underlines this fact in its preambular reaffirmation of the Friendly Relations Declaration.

The draft before us is a recommendation by the General Assembly designed to provide guidance for the Security Council in the exercise of its primary responsibility under the Charter to maintain, and where necessary, to restore international peace and security. The second, fourth and tenth paragraphs of the Preamble and Articles 2 and 4 clearly reflect the intention of the drafters to work within the framework of the Charter which grants discretion to the Security Council. There is nothing the General Assembly or the Security Council can do under the Charter to alter the discretion of the Council. The Assembly can provide suggested guidance to the Security Council and since the Membership of the Council is drawn from the Membership of the Assembly, there is every reason to assume the Security Council will give due weight to this important recommendation.

We believe the draft definition which is the product of the many years of careful work deserves unanimous acceptance by the General Assembly. In expressing this view we are mindful of the need not to place too great an emphasis on what we have accomplished. The

Security Council must not be tempted to pursue the question of whether aggression has been committed if to do so would delay expeditious action under Chapter VII pursuant to a finding of a "threat to the peace" or a "breach of the peace." The definition will do far more harm than good if it ever serves to distract the Council and cause any delay in action the Council could otherwise have taken.

On December 14, 1974, the United Nations General Assembly adopted without a vote the definition of aggression recommended by the Special Committee. (G.A. Res. 3314 (XXIX)). Shortly after the Assembly's acceptance of the definition, W. Tapley Bennett, Jr., Deputy Permanent U.S. Representative to the United Nations, made a statement to the Assembly, as follows:

The United States delegation believes the adoption by consensus of this definition is one of the positive achievements of this twentyninth General Assembly. The adoption of this definition coming after so many years of consideration and negotiation is, in fact, in our view, an historic moment. We believe this accomplishment may in large measure be attributed to the working methods used by the Special Committee. . . .

We indicated there that, while we would have preferred more explicit and detailed coverage of certain very contemporary forms of violence, we were satisfied that these indirect uses of force were indeed covered. We have stressed the importance that we attach to the express recognition of the fact that the specific list of acts set forth in Article 3 of the definition is not exhaustive, and we have stressed the importance we attach to the fact that the text neither expands nor diminishes the permissible uses of force.

We believe the recommendations included in the definition are, by and large, likely to provide useful guidance to the Security Council, which, after all, is the function of the definition. This is particularly so since, as is made clear by operative paragraph 4 of the resolution, nothing in the definition alters or purports to alter the discretion of the Security Council. This is quite proper, of course, since neither the General Assembly nor indeed the Security Council itself is empowered to change the discretion of the Council, that discretion being derived from the language of the Charter itself.

We see nothing in any of the various explanatory notes which affects the substance of the text of the definiton or affects our views of it.

The United States fully shares the hope expressed in the preamble of these guidelines that they will contribute to the more effective functioning of the collective security system of the United Nations, and thus to the maintenance of international peace and security.

569-769-7546

U.N. Doc. A/PV. 2319, Dec. 14, 1974, p. 37. For the Report of the Sixth Committee, see U.N. Doc. A/9890, Dec. 6, 1974. The Sixth Committee included in its Report two further explanatory statements: First, "nothing in the Definition of Aggression, and in particular Art. 3(c), shall be construed as a justification for a state to block, contrary to international law, the routes of free access of a landlocked country to and from the sea." Second, "nothing in the Definition of Aggression, and in particular Art. 3(d), shall be construed as in any way prejudicing the authority of a state to exercise its rights within its national jurisdiction, provided such exercise is not inconsistent with the Charter of the United Nations." (at p. 2 of the Report.)

Reprisals

On May 29, 1974, Acting Secretary of State Kenneth Rush wrote to Professor Eugene Rostow of the Yale Law School, in response to a suggestion by Professor Rostow that the United States endorse the right of reprisal under Article 51 of the United Nations Charter. Mr. Rush wrote, in relevant part:

As you know, it is the established policy of the United States that a state is responsible for the international use of armed force originating from its territory, whether that force be direct and overt or indirect and covert. This equally is the announced policy of the United Nations, expressly reflected, as you point out, in the General Assembly's Resolution 2625 on Principles of International Law concerning Friendly Relations and Cooperation among States. The definition of aggression recently forwarded by a U.N. Special Committee to the General Assembly also maintains this accepted principle of international law.

You would add a complementary principle, namely, that where a state cannot or will not fulfill its international legal obligations to prevent the use of its territory for the unlawful exercise of force, the wronged state is entitled to use force, by way of reprisal, to redress, by self-help, the violation of international law which it has suffered.

As you know, Resolution 2625 also contains the following categorical statement: "States have a duty to refrain from acts of reprisal involving the use of force." That injunction codifies resolutions of the Security Council which have so affirmed.

The United States has supported and supports the foregoing principle. Of course we recognize that the practice of states is not always consistent with this principle and that it may sometimes be difficult to distinguish the exercise of proportionate self-defense from an act of reprisal. Yet, essentially for reasons of the abuse to which the doctrine of reprisals particularly lends itself, we think it desirable to endeavor to maintain the distinction between acts of lawful selfdefense and unlawful reprisal.

On March 5, 1974, George H. Aldrich, Deputy Legal Adviser, Department of State, and U.S. Representative to the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, made a statement. to the Conference which included the following:

Throughout the years of preparatory work for this Conference, my Government has emphasized two fundamental objectives. These objectives are, first, to obtain better implementation of and compliance with existing international law and, second, to develop new rules of law that are clear, are capable of being accepted by states, and are capable of being applied in practice. In our judgment, failure to adhere to these objectives would create an illusion of progress capable only of obscuring the reality, and that only until put to the test.

These objectives are still valid. Certainly compliance with the law has not been as general as one might wish in recent years. On the contrary, we have seen repeated refusals to comply with the Geneva Conventions of 1949, refusals to treat military personnel captured in battle as prisoners of war, efforts to use prisoners to obtain political advantages-in effect to hold them for ransom-and many forms of warfare that seem to make a target of the civilian population. One must ask whether the clock is being turned back to an earlier age when the ransoming of prisoners was standard practice and the civilian non-combatant was fair game. One must also ask whether we are not, almost unconsciously, acquiescing in the taking of hostages and the use of terrorism as accepted methods of bargaining.

The argument that the end justifies the means is the sole defense advanced for these distressing developments, and that argument is, as we all know, the antithesis of international humanitarian law, and, in particular, of the Geneva Conventions. The philosophy of the Geneva Conventions is concern, not for who is right and who is wrong, but rather for the protection of all victims of armed conflict, no matter what the cause they support. My Government firmly believes that this Conference should reaffirm the philosophy of the Geneva Conventions and reject any efforts that may be made to introduce into the law discrimination in levels of protection based on subjective criteria, such as the justness of the cause for which a particular group is fighting. We must insist that agreed humanitarian standards are complied with in equal measure for the victims of war whose cause we oppose, as well as those whose cause we support.

Introduction into international humanitarian law of "just war" concepts would almost invariably result in lowering the standards of protection accorded war victims. Rare is the man who thinks his enemy is right. Even rarer is the state which, when combating a re