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The Inherent Right of Self-Defence in International Law pp 45–69Cite as

The Use Force Between States – 1919 to 1939

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Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 19))

Abstract

This chapter examines the evolution of the international law of the use of force from 1919 to 1939 and the continuing shift towards the use of peaceful means to settle disputes. An important aspect of this examination is a detailed study of the General treaty for the renunciation of war 1928 and its relevance to the origin, nature and legal scope of the inherent right of self-defence. Identified for the first time in the scholarly works is the creation by this treaty of a corollary legal right in favour of states to remain free from the use of war in their international relations and the relevance of the inherent right of self-defence to protecting this right. The end of this period is critical to understanding the legal scope of this right at the time Article 51 of the Charter of the United Nations 1945 was introduced. This scope remained the imminent threat, or use, of armed force directed against the territory of a state or that of an ally. There is a continuing absence of reference to the concept of ‘anticipatory self-defence’ in international law. The basis for the hypothetical definition for the legal commencement of an armed attack in international law discussed in the previous chapters is applied to the period examined in this chapter.

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Notes

  1. 1.

    Covenant of the League of Nations, opened for signature 28 June 1919, (1919) UKTS 1919/4 (entered into force 10 January 1920).

  2. 2.

    1928 General Treaty for Renunciation of War as an Instrument of National Policy, opened for signature 28 August 1928, 94 LNTS (1929) 57 (entered into force 24 July 1929). 63 states or virtually the entire international community in 1928 were party to the treaty.

  3. 3.

    Article 38 of the Statute of the Permanent Court of International Justice, opened for signature 28 June 1919, (1919) UKTS 1919/4 (entered into force 10 January 1920). The other formal sources recognized by Article 38 were ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting States, the general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’

  4. 4.

    The Polish-Soviet War had an estimated 247,000 people killed and was ended by the Treaty of Riga 1921 (entered into force 18 March 1921). See Norman Davies, White Eagle, Red Star: The Polish-Soviet War (1st ed, 2003) and Thomas Fiddick, Russia’s Retreat from Poland (1920). Poland also went to war with Lithuania in 1920 over a similar territorial dispute. The Silesian Uprisings at this time involved the Polish population in Silesia rebelling against Weimer rule.

  5. 5.

    The Third Anglo-Afghan War was temporarily determined by the Treaty of Rawalpindi 1919, opened for signature 8 August 1919 (entered into force 8 August 1919), Clive Parry, The Consolidated Treaty Series, Vol 225, 446 which was amended on 22 November 1921. King Amunullah of Afghanistan remarked during the peace negotiations that the air bombardment of Kabul and his official residence by the British seemed a ‘habit which is prevalent among all civilised people of the West, yet is a method of warfare criticised by the British when exercised against them’; Willelm Vogelsang, The Afghans (2002) 245–344.

  6. 6.

    The Greco-Turkish War was ended by the Treaty of Lausanne 1923, opened for signature 24 July 1923 (entered into force 24 July 1923). The treaty also led to the international recognition of the sovereign state of Turkey; Andrew Mango, Ataturk: The Biography of the Founder of Modern Turkey (2002) 338.

  7. 7.

    The Sykes-Picot Agreement 1916, opened for signature 16 May 1916 (entered into force 16 May 1916), Clive Parry, The Consolidated Treaty Series, Vol 221, 323.

  8. 8.

    David Fromkin, A Peace to End all Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East (1989) 286–288.

  9. 9.

    The Soviet-Georgian War in 1921 resulted in the creation of the Georgia Soviet Socialist Republic which was controlled politically, militarily and economically by the U.S.S.R. despite the Treaty of Moscow 1921 (entered into force 7 May 1920) which recognised Georgia’s independence; Robert Suny, The Making of the Georgian Nation (2nd ed, 1994) 207.

  10. 10.

    See Text of the British Note of 2 December 1929 to China and the U.S.S.R. reprinted in John W Wheeler-Bennet (ed), Documents on International Affairs 1929 (1930) Royal Institute of International Affairs, 276 in which the British Government referred to the prohibition of war under the General Treaty and the responsibility of these nations to observe this prohibition; Text of Identic Notes of 2 December 1929 from the United States to China and the U.S.S.R. at 277 where the United States Government made similar observations; Text of the Reply of the Chinese Government of 4 December 1928 at 278 in which China recognised the inherent right of self-defence for the protection of its territorial sovereignty against external invasion as the only form of war lawful under the General Treaty and the Text of the Soviet Reply of 4 December 1929 at 278–280 which made the same observation of the prohibition of war under that treaty. See also Brownlie (1963), 76 and Felix Patrikeeff, Russian Politics in Exile: The North-West Asian Balance of Power 1924–1931 (2002) 73.

  11. 11.

    The escalation of this conflict into war between the two states is commonly known as the Second Sino-Japanese War. See Appeal of the Chinese Government to the League Council 21 September 1931 reprinted in John W Wheeler-Bennet (ed), Documents on International Affairs 1932 (1932) Royal Institute of International Affairs, 240–396 at 241–242 in which the Chinese Government described the ‘unprovoked’ military actions of the Japanese armed forces; Telegram from the President of the League Council to the Chinese and Japanese Governments in Accordance with the Council’s Decision 22 September 1931 at 242–243 where the Council advocated a peaceful settlement of the dispute; Identic Notes from the U.S. Secretary of State to the Chinese and Japanese Governments 23 September 1931 at 247 in which the United States advocated a settlement of the dispute without ‘resort to the use of force’; Japanese Memorandum to the League Council Objecting to the Participation of the United States 17 October 1931 at 250–251 in which the Japanese Government, apart from objecting to the United States on the basis of its non-membership of the League of Nations, stated that the dispute did not constitute ‘war’ so was not subject to the General Treaty and the Truce-Agreement between the Chinese and Japanese Military Authorities, signed at Tangku on 31 May 1933 reprinted in John W Wheeler-Bennet (ed), Documents on International Affairs 1933 (1933) Royal Institute of International Affairs, 493. See also Brownlie (1963), 76–77; Lauterpacht (1952), 185 and Richard Wilson, When Tigers Fight: The Story of the Sino-Japanese War 1937–1945 (1982).

  12. 12.

    The Chaco Declaration 1932 55 LNTS 144 (entered into force 3 August 1932) arose from the Chaco Peace Conference attended by Chile, the United States, Peru, Brazil, Argentina and Uruguay. See Bruce Farcau, The Chaco War (1996).

  13. 13.

    Salomon-Lozano Treaty 1922 (entered into force 1 July 1922). See Brownlie (1963), 76–77 and Lauterpacht (1952), 185.

  14. 14.

    The Saudi-Yemini War ended with the Treaty of Taif 1934 (entered into force 20 May 1934) by which the Yemen yielded sovereignty over a number of territories in favour of Saudi Arabia.

  15. 15.

    Ethiopia did not capitulate or surrender to Italy. The invasion is generally considered to have constituted a violation of Article X of the Covenant of the League of Nations 1919 and the General Treaty. See Brownlie (1963), 77 and David Nicholl, The Italian Invasion of Abyssinia 1935–1936 (1997) 1–48.

  16. 16.

    The origins of this dispute were historical and were aggravated by the terms of the Treaty of Trianon 1920 (entered into force 4 June 1920) which granted Czechoslovakia large areas of territory over which the Austro-Hungarian Empire previously held sovereignty; Margaret Macmillain, Paris 1919: Six Months that Changed the World (2003) 47–59.

  17. 17.

    King Zog of Albania fled and took refuge in London after Italy forced the Albanian Parliament to accept its demands to become its protectorate; Bernd Fischer, Albania at War (1999) 15.

  18. 18.

    This battle is commonly referred to as the Battle of Khalkhin Gol and was part of the Soviet-Sino War of 1939 over their respective borders and economic influence; Alvin Coox, Japan against Russia 1939 (1978) 121.

  19. 19.

    Lauterpacht (1952), 186. See also Brownlie (1963), 77–78.

  20. 20.

    Lauterpacht (1952), 197.

  21. 21.

    Brownlie (1963), 110.

  22. 22.

    Ibid 55; Ernst Puttkamer, ‘Versailles Peace Treaty (1919)’ (1982) 4 Encyclopedia of International Law 178–180; Josef Partsch, ‘Vital Interests’ (1987) 10 Encyclopedia of International Law 526–528; McCormack (2005), 226 and Schmitt (2003), 90.

  23. 23.

    Covenant of the League of Nations (1919).

  24. 24.

    Locarno Treaties 1925, opened for signature 1 December 1925, 54 LNTS 354 (entered into force 1 December 1925). See Brownlie (1963), 70–71 and Lauterpacht (1952), 89 and 180.

  25. 25.

    1928 General Treaty for Renunciation of War as an Instrument of National Policy (1929). Virtually the entire international community in 1928 were party to the treaty. See Brownlie (1963), 75; Harris (1998), 861 at Note 1; Schmitt (2003), 90 and Niaz Shah, ‘Self-defence, Anticipatory Self-defence and Pre-emption: International Law’s Response to Terrorism’ (2007) 12 Journal of Conflict & Security Law 95–126, 95–96.

  26. 26.

    As opposed to bilateral efforts through treaties of arbitration to limit the right to go to war. See Brownlie (1963), 54; Shah (2007), 95–96 and Schmitt (2003), 90.

  27. 27.

    Brownlie (1963), 55–56 and McCormack (2005), 226.

  28. 28.

    Brownlie (1963), 56.

  29. 29.

    Lauterpacht (1952), 16–17, 97 and McCormack (2005), 226.

  30. 30.

    Lauterpacht (1952), 97–98 and McCormack (2005), 248–250.

  31. 31.

    Article 8 of the Covenant.

  32. 32.

    Articles 12, 15 and 16 of the Covenant. See Dennis Weber, ‘League of Nations’ (1941) 2 Encyclopedia of International Law 848–853; Robert Parry, ‘League of Nations’ (1983) 5 Encyclopedia of International Law 192–201 and Groeben Rustemeyer, ‘Wilson’s Fourteen Points’ (1984) 7 Encyclopedia of International Law 539–542.

  33. 33.

    A characteristic of bilateral arbitration treaties in existence at that time.

  34. 34.

    Articles 12, 13 and 15 of the Covenant. See Brownlie (1963), 55–66.

  35. 35.

    The right of self-defence was impliedly reserved by the Covenant; see Report to the Assembly by the First Commission, 1931, LNOJ, Spec. Supp. No 94, A C.I. Annex 18.

  36. 36.

    Brownlie (1963), 58 and Harris (1998), 861–862.

  37. 37.

    For example Lauterpacht (1952), 161 and Brownlie (1963), 60–62.

  38. 38.

    Lauterpacht (1952), 98–99.

  39. 39.

    Ibid 98–99 at which he writes: ‘Under the Covenant that limitation of the jurisdiction of the League of Nations was grounded in the fact that members of the League had not definitely renounced the right to resort either to war or to acts short of war. Accordingly, under the Covenant there remained the possibility, based on a legal right, of disturbance of the peace’. See also McCormack (2005), 249–250.

  40. 40.

    Lauterpacht (1952), 152.

  41. 41.

    Brownlie (1963), 56.

  42. 42.

    Lauterpacht (1952), 98–99.

  43. 43.

    Brownlie (1963), 57.

  44. 44.

    Ibid 66.

  45. 45.

    League Doc A/35 (1923) spec suppl no 16. See Lauterpacht (1952), 180 and Brownlie (1963), 68–69.

  46. 46.

    League of Nations Official Journal (1924) spec suppl no 24. See Lauterpacht (1952), 180 and Brownlie (1963), 69–70.

  47. 47.

    Lauterpacht (1952), 46–47 and Harris (1998), 985–987.

  48. 48.

    Lauterpacht (1952), 180 and Brownlie (1963), 70.

  49. 49.

    Locarno Treaties 1925(1925). See Brownlie (1963), 70–71 and Lauterpacht (1952), 89, 180.

  50. 50.

    Western European allies from the First World War negotiated with new central and eastern states to finalise the post-war peace settlements and normalise relations with Germany. The arbitration treaties were made between Germany and Belgium, France, Czechoslovakia and Poland.

  51. 51.

    Lauterpacht (1952), 90–91, 180 and Brownlie (1963), 71.

  52. 52.

    League of Nations Official Journal (1927) spec suppl no 53. See Brownlie (1963), 72 and McCormack (2005), 250–253.

  53. 53.

    Lauterpacht (1952), 180–181 and Brownlie (1963), 73.

  54. 54.

    The Resolution of the Sixth International Conference of American States (1928) 22 American Journal of International Law 356–357. See Lauterpacht (1952), 181 and Brownlie (1963), 73–74.

  55. 55.

    Brownlie (1963), 74 writes, ‘Although some writers regard the resolution as of moral force only the better view probably is that the resolution, though not creating a rule of law, states that a rule of law exists.’

  56. 56.

    The Chaco Declaration 1932 arose from the Chaco Peace Conference attended by Chile, the United States, Peru, Brazil, Argentina and Uruguay. See Farcau (1996), 183.

  57. 57.

    Locarno Treaties 1925. See Sect. 1.3.2 above.

  58. 58.

    Article 1 of the treaty.

  59. 59.

    Article 2 of the treaty.

  60. 60.

    Article 2(1) of the treaty. See Gustav Stresemann, German aims at Locarno, Diary entry of the German Foreign, 23 September 1925 reproduced in Eric Sutton, Gustav Stresemann, His Diaries, Letters and Papers (1937) vol II, 165–167 in which the Foreign Minister recorded his determination to alter the perceived limitations on the German sovereign right to defend itself from war, invasion or any act inconsistent with its exercise of sovereignty over its land.

  61. 61.

    1928 General Treaty for Renunciation of War as an Instrument of National Policy (1929). See John W Wheeler-Bennet (ed), Documents on International Affairs 1928 (1929) Royal Institute of International Affairs, 5–14. Brownlie (1963), 80–82; Carothers Wallace, ‘Kellogg-Briand Pact (1928)’ (1982) 3 Encyclopedia of International Law 236–239. Unfortunately the Treaty did not have an effective enforcement mechanism; see Malanczuk (1997), 24.

  62. 62.

    The word ‘inherent’ was defined in 1928 in the Oxford English Dictionary, 1928 vol V, column 2, 293 as: ‘1. Sticking in; fixed, situated, or contained in something (in physical sense); 2. fig. Cleaving fast, remaining, or abiding in some thing or person; permanently indwelling; 3. Existing in something as a permanent attribute or quality; forming an element, esp. a characteristic or essential element of something; belonging to the intrinsic nature of that which is spoken of; indwelling, intrinsic, essential; 4. Vested in or attached to a person, office, etc., as a right or privilege.’ The Oxford English Dictionary was originally published in separate parts between 1884 and 1928 and the part containing the entry for the word ‘inherent’ first appeared in 1900.

  63. 63.

    William E Borah, Hearing before the Committee on Foreign Relations on the General Pact for the Renunciation of War, Signed at Paris 27 August 1928, United States Senate, Seventeenth Congress, Second Session, Part 1, 7 and 11 December 1928, 1–12. The United States Senate Committee at the completion of its hearings described the immutability of the inherent right in similar terms; see Report of the U.S. Senate Committee on Foreign Relations, Congressional Record, vol 70, No 29, (1928) 1783–1784 reprinted in Wheeler-Bennet (ed) (1929), 6.

  64. 64.

    Austen Chamberlain, Further Correspondence with the Government of the United States Respecting the United States Proposal for the Renunciation of War, Cmd. 3153 [in continuation of Cmd. 3109], London, 23 June 1928, 1 [3] under the heading ‘Self-defence’. This document records the correspondence that was presented by the Secretary of State for Foreign Affairs of Great Britain to Parliament by command of His Majesty. It related the construction of the views of the proposed treaty held by the Government of Great Britain by the Secretary of State of the United States, Mr Frank B Kellogg to the American Society of International Law on 28 April 1928. Mr Chamberlain, the Secretary of State for Foreign Affairs of the Government of Great Britain, referred to the six major considerations emphasised by the Government of France of the draft treaty. These considerations were self-defence, the League Covenant, the Treaties of Locarno, treaties of neutrality, relations with a treaty-breaking state and universality.

  65. 65.

    Chamberlain (1928), 1 [3] under the sub-heading ‘Self-defence’.

  66. 66.

    See Lauterpacht (1952), 184–190; Brownlie (1963), 236 (n 4–5) – 240 and McCormack (2005), 250–253.

  67. 67.

    Brownlie (1963), 241 concluded that self-defence at this time was a ‘necessary reaction against the use or threat of force.’

  68. 68.

    William E Borah, Hearing before the Committee on Foreign Relations on the General Pact for the Renunciation of War, Signed at Paris 27 August 1928, United States Senate, Seventeenth Congress, Second Session, Part 1, 7 and 11 December 1928, 1–12. Senator William E Borah (Idaho) Chaired the Committee.

  69. 69.

    Ibid 2. See also 15 where the Secretary believed that the General Treaty would not have been negotiated between any states if ‘aggression’ or ‘self-defence’ had been defined.

  70. 70.

    Ibid.

  71. 71.

    Ibid 12.

  72. 72.

    Report of the U.S. Senate Committee on Foreign Relations, Congressional Record, vol 70, No 29, (1928) 1783–1784 reprinted in Wheeler-Bennet (ed) (1929), 6–8.

  73. 73.

    Ibid 2–3. In response Senator Reed confirmed that the application of the right of self-defence ‘applies to every other country’ to which Secretary Kellogg replied, ‘Certainly; nor do I think it is practicable to do anything else; although there are idealists who say that it is practicable. It is entirely impracticable, in my judgment.’

  74. 74.

    Secretary Kellogg insisted that the entirety of the negotiations for the treaty were conducted by way of notes between states and refused to meet face-to-face with state representatives; Ibid 2.

  75. 75.

    Note from Mr M Litvinoff to Mr M J Herbettee, Ambassador Extraordinary and Plenipotentiary of the French Republic [in Moscow], 31 August 1928 reprinted in Wheeler-Bennet (ed) (1929), 9. The reason the Soviet reservation suggested this was because it considered that such actions constituted an attack by one nation against another and that such actions often led to war. Despite this the Soviet Union formed an agreement with Poland, Lithuania, Turkey and Persia to consider themselves immediately bound by the prohibition of war under the General Treaty; see The Litvinov Protocol 1928 and reprinted Wheeler-Bennet (ed) (1929), 51–52.

  76. 76.

    Ibid 3 and 9.

  77. 77.

    Ibid 3–4. The balance of the document consisted of questions and answers of Secretary Kellogg concerning such issues as mutual release from the obligations under the treaty should a party to it violate it by an act or war; that there are considered to be two types of war (aggressive and defensive) and that the treaty renouncing the former should be required to expressly preserved the latter; the note of Great Britain in which Secretary of State for Foreign Affairs reserved the right to protect its interests around the world from attack as a matter of legitimate self-defence and whether the United States might be disadvantaged if it did not make similar reservations (a suggestion that Secretary Kellogg rejected). The final part of the hearing before the Senate Committee was adjourned to, and heard on, December 11 1928.

  78. 78.

    The U.S. Senate Committee in its final report considered the inherent right would be the only lawful use of force under the treaty and that this right would in no way be curtailed or impaired by it; see Report of the U.S. Senate Committee on Foreign Relations, Congressional Record, vol 70, No 29, 1783–1784 reprinted in Wheeler-Bennet (ed) (1929), 6–8.

  79. 79.

    Other treaties in this period made the distinction between ‘aggression’ on one hand and the right of defence on the other so that the latter would be excluded from being categorised as prohibited force, for example the Saadabad Pact 1937 190 LNTS 21 (entered into force 8 July 1937) in which Article 4 excluded ‘the exercise of the right of legitimate defence’.

  80. 80.

    The Senate Committee on Foreign Relations recommended that the General Treaty be ratified by the United States Government on its understanding that neither the right of self-defence per se or its lawful exercise would be curtailed or impaired by the operation of the treaty.

  81. 81.

    However Brownlie (1963), 240 expressed the view that Article 1 prohibited the use of armed force short of war for the reasons previously justified as self-help in the period 1815–1928. Whether or not the General Treaty prohibited the exercise of the sovereign right to use force short of war remains a matter of debate between scholars.

  82. 82.

    There were 15 original signatories to the General Treaty. By December 1928 46 states had notified the United States Government of their adherence or intention to adhere to the treaty; see Wheeler-Bennet (ed) (1929), 14.

  83. 83.

    For example the Treaty of Hanover 1725, opened for signature 3 June 1725, Clive Parry, The Consolidated Treaty Series, Vol 32, 201 (entered into force 7 June 1725) in which Great Britain, France and Prussia promised mutual military support for each other against possible aggression by Spain; the Dual Alliance 1879, opened for signature 7 October 1879, Clive Parry, The Consolidated Treaty Series, Vol 155, 306 (entered into force 7 October 1879) in which Austria-Hungary and Germany agreed under Article 1 that either ‘are bound to come to the assistance of the other with the whole war strength of their Empires’ should either be attacked by Russia. In Article 2 each party bound itself in the case of aggression from a power other than Russia ‘not to support the aggressor against its high Ally, but to observe at least a benevolent neutral attitude towards its fellow Contracting Party’; the Triple Alliance 1882, opened for signature 20 May 1882, Clive Parry, The Consolidated Treaty Series, Vol 160, 243 (entered into force 20 May 1882) in which Germany, Austria-Hungary and Italy under Article 2 promised military assistance to Italy should she be attacked by France and under Article 3 such assistance should any two other powers attack any of the parties to the treaty; the Reinsurance Treaty 1887, opened for signature 18 June 1887, Clive Parry, The Consolidated Treaty Series, Vol 169, 317 (entered into force 18 June 1887) formed between Germany and Russia in which under Article 1 the parties agreed to ‘maintain a benevolent neutrality towards it, and would devote its efforts to the localization of the conflict’; the Treaty of Bjorko 1905, opened for signature 24 August 1905, Clive Parry, The Consolidated Treaty Series, Vol 199, 123 (entered into force 24 August 1905) between Germany and Russia, a secret mutual defence accord which promised the use of each country’s army to defend the other in case of an attack from any other country, and the Franco-Soviet Treaty of Mutual Assistance 1935 (entered into force 15 March 1935) that was directed against Germany and whose Article 1 read ‘In the event that France or the U.S.S.R. are subjected to the threat or the danger of aggression on the part of a European state, the U.S.S.R. and France engage themselves reciprocally to proceed to an immediate mutual consultation on measures to take in order to observe the provisions of Article 10 of the League of Nations Pact’. However in 1925 Germany, Belgium, France, Great Britain and Italy used the term ‘legitimate defence’ to describe their right of self-defence; see the Locarno Treaties 1925. Article 2(1) stated ‘The exercise of the right of legitimate defence, that is to say, resistance to a violation of the undertaking contained in the previous paragraph or to a flagrant breach of Articles 42 or 43 of the said Treaty of Versailles, if such breach constitutes an unprovoked act of aggression and by reason of the assembly of armed forces in the demilitarised zone immediate action is necessary’.

  84. 84.

    Conventions for the Definition of Aggression 1933 147 LNTS 67 (opened for signature 3 July 1933); 148 LNTS 79 (opened for signature 4 July 1933) and 148 LNTS 211 (opened for signature 5 July 1933).

  85. 85.

    Lauterpacht (1952), 184–190.

  86. 86.

    For example the Treaty of Friendship and Security 1926 106 LNTS 260 (entered into force 12 July 1926) between Persia and Turkey; the Treaty of Friendship and Security 1927 106 LNTS 260 (entered into force 27 November 1927) between Persia and Afghanistan; the Treaty of Guarantee and Neutrality 1927 112 LNTS 276 (entered into force 2 March 1927) between Persia and the U.S.S.R.; A Treaty of Non-Aggression 1927 60 LNTS 152 (entered into force 1 October 1927) between the U.S.S.R. and Lithuania; A Treaty of Non-Aggression and Arbitration 1928 108 LNTS 188 (entered into force 23 March 1928) between Greece and Rumania; A Non-Aggression Treaty 1932 148 LNTS 122 (entered into force 9 August 1932) between Finland and the U.S.S.R.; the Chaco Declaration 1932 55 LNTS 144 (entered into force 3 August 1932); the Anti-War Treaty of Non-Aggression and Conciliation 1933 (1934) 28 American Journal of International Law (entered into force 10 October 1933) first between Argentina and Brazil but later other South American states; the Seventh International Conference of American States 1933 165 LNTS 19 (entered into force 4 March 1933); the Saadabad Pact 1937(1937) and the Non-Aggression Treaty 1937 181 LNTS 102 (entered into force 29 August 1937) between the U.S.S.R. and China.

  87. 87.

    Brownlie (1963), 103.

  88. 88.

    ‘Nuremburg International Military Tribunal’ (1947) 41 American Journal of International Law 205. See also Report of the 38th Conference of the International Law Association, Budapest (1934) 67 where it was observed in respect of the General Treaty, ‘A signatory state which threatens to resort to armed force for the solution of an international dispute or conflict is a violation of the Pact.’

  89. 89.

    Lauterpacht (1952), 182.

  90. 90.

    Ibid 182–183.

  91. 91.

    Ibid 184.

  92. 92.

    Ibid 185.

  93. 93.

    Ibid 196–197.

  94. 94.

    Brownlie (1963), 110.

  95. 95.

    Ibid 108 where Brownlie concluded that most states were stopped from ‘denying the illegality of resort to force except in self-defence’.

  96. 96.

    Ibid 76–80.

  97. 97.

    Ibid 87.

  98. 98.

    Ibid 74–80, 87–92, 107–111.

  99. 99.

    Ibid 85. See also McCormack (2005), 250–253.

  100. 100.

    Brownlie (1963), 85.

  101. 101.

    Ibid 76.

  102. 102.

    Bowett (1958), 451.

  103. 103.

    James Brierly, The Law of Nations (3rd ed, 1942) 263–264.

  104. 104.

    For example Wolff (1764), 129 [252].

  105. 105.

    Charles Fenwick, International Law (3rd ed, 1948) 218–224.

  106. 106.

    Lauterpacht (1952), 592–595 and Brownlie (1963), 133–149. The general principle of a state bearing responsibility to make full reparations for injury caused by its internationally wrongful acts is well established in international law. See for example, Factory at Chorzow [1927] P.C.I.J. Series A, No. 9, 21; Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] I.C.J. Rep [152] and Avena and Other Mexican Nationals (Mexico v United States of America) [2004] I.C.J. Rep [119].

  107. 107.

    Brownlie (1963), 147.

  108. 108.

    Lauterpacht (1952), 594.

  109. 109.

    For example O’Connell (1970), 315 wrote, ‘A corollary of the right of to independence is the right of self-defence, a right fundamental in every legal system and circumscribed only to the extent to which formal law assumes the responsibility of defending the individual’. Bowett (1958), 3 wrote, ‘Moreover, it will be necessary to formulate these rights with reference to the correlative duties imposed by international law on other States, for without this correlation, there can be no substantive right stricto sensu, and therefore, no basis for the privilege of self-defense which presupposes delictual conduct violating those rights’. Dinstein (2005), 178 referred to this principle by suggesting that any act of lawful self-defence necessarily requires a corresponding violation of the duty to abstain from the resort to force. McCormack (2005), 263–265 examined the creation of corresponding legal rights by new legal rights and Keith (1929), 323–332 expressed the identical view of correlative rights in international law.

  110. 110.

    The General Treaty was signed and ratified by all states in the international community except Argentina, Bolivia, El Salvador and Uruguay.

  111. 111.

    Brownlie (1963), 241–242, 250 and 257.

  112. 112.

    ‘In this respect, no treaty provision can define the natural right of self-defence’; Austen Chamberlain, Further Correspondence with the Government of the United States Respecting the United States Proposal for the Renunciation of War, Cmd. 3153 [in continuation of Cmd. 3109], London, 23 June 1928, 1 [3] under the heading ‘Self-defence’.

  113. 113.

    Patrikeeff (2002), 89–94.

  114. 114.

    Ethiopia did not capitulate or surrender to Italy; Brownlie (1963), 77 and Nicholl (1997), 1–48.

  115. 115.

    King Zog of Albania fled and took refuge in London after Italy forced the Albanian Parliament to accept its demands to become its protectorate; see Fischer (1999), 15.

  116. 116.

    Lauterpacht (1952), 185; Brownlie (1963), 76–77 and Wilson (1982), 23–44.

  117. 117.

    The Saudi-Yemini War ended with the Treaty of Taif 1934 153 LTS 249 (entered into force 20 May 1934) by which the Yemen yielded sovereignty over large parts of its territory in favour of Saudi Arabia.

  118. 118.

    Chaco Declaration 1932.

  119. 119.

    Salomon-Lozano Treaty 1922. See Lauterpacht (1952), 185 and Brownlie (1963), 76–77.

  120. 120.

    The origins of this dispute were historical and were aggravated by the terms of the Treaty of Trianon 1920 6 LTS 187 (entered into force 4 June 1920) which granted Czechoslovakia large areas of territory over which the Austro-Hungarian Empire previously held sovereignty. See Macmillain (2003), 47–59.

  121. 121.

    This battle is commonly referred to as the Battle of Khalkhin Gol and was part of the Soviet-Sino War of 1939 over their respective borders and economic influence. See Coox (1978).

  122. 122.

    Pufendorf (1688), Book II 269 [185], Book III 1298 [884] and 1302 [885].

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    Murray Colin Alder

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Alder, M.C. (2013). The Use Force Between States – 1919 to 1939. In: The Inherent Right of Self-Defence in International Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 19. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4851-4_3

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