The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)?

Tom Ruys

doi:10.5305/amerjintelaw.108.2.0159

¹ Article 2(4) provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

² See Olivier Corten, The Law Against War 55, 77 (2010). In his seminal work The Law Against War, Olivier Corten observes that “there is a threshold below which the use of force in international relations, while it may be contrary to certain rules of international law, cannot violate article 2(4).” Id. Corten’s work is arguably the first in-depth analysis of customary practice relating to the scope of UN Charter Article 2(4).

³ Id.; O’Connell, Mary Ellen, The Prohibition on the Use of Force, in Research Handbook on International Conflict and Security Law 89, 102 (White, Nigel D. & Henderson, Christian eds., 2013 Google Scholar) (while acknowledging that “[t]here is no express authority on the point,” O’Connell finds that “Article 2(4) is narrower than it might appear on its face. Minimal or de minimis uses of force are likely to fall below the threshold of the Article 2(4) prohibition.”); Robert Kolb, Ius Contra Bellum 247 (2d ed. 2009).

⁴ 2 Independent International Fact-Finding Mission on the Conflict in Georgia, Report 242 & n.49 (Sept. 2009) [hereinafter Report on the Conflict in Georgia], at http://www.ceiig.ch/Report.html. Note: the Report refers to the quote from Kolb (see supra note 3), which in turn refers to the analysis of Corten (see supra note 2).

⁵ For the author’s position on the matter, see Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter—Evolutions in Customary Law and Practice (2010).

⁶ The International Law Commission has pointed out that “the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.” Draft Articles on the Law of Treaties with Commentaries, [1966] 2 Y.B. Int’l L. Comm’n 187, 247. The International Court of Justice (ICJ) quoted this statement in Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 190 (June 27). For examples of support in legal doctrine, see Ian D. Seiderman, Hierarchy in International Law: The Human Rights Dimension 62 (2001), Alexander Orakelashvili, Peremptory Norms in International Law 51 (2006), and Corten, supra note 2, at 200–13.

⁷ May 23, 1969, 1155 UNTS 331.

⁸ Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) [hereinafter Articles on State Responsibility], reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 61 (2002).

⁹ See, in particular, Roberto Ago (Special Rapporteur), Addendum to the Eighth Report on State Responsibility, [1980] 2 Y.B. Int’l L. Comm’n, pt. 1, at 13, 44, UN Doc. A/CN.4/318/ADD.5–7. See also Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law 356 (1988). For a more general questioning of the norm’s peremptory character, see Green, James A., Questioning the Peremptory Status of the Prohibition on the Use of Force, 32 Mich. J. Int’l L. 215 (2011)Google Scholar. These matters are beyond the range of the current article.

¹⁰ Except for self-defense and consent (insofar as permitted under primary rules of international law).

¹¹ See, e.g., Mrazek, Josef, Prohibition on the Use and Threat of Force: Self-Defence and Self-Help in International Law, 1989 Can. Y.B. Int’L L. 81, 90Google Scholar; James Crawford, State Responsibility—the General Part 690–91 (2013); Corten, Olivier, Judge Simma’s Separate Opinion in the Oil Platforms Case: To What Extent Are Armed ‘Proportionate Defensive Measures’ Admissible in Contemporary International Law? , in From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma 843, 848–49 (Fastenrath, Ulrich et al. eds., 2011 CrossRef Google Scholar).

¹² See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625(XXV) (Oct. 24, 1970).

¹³ Guyana v. Suriname, Award, para. 446 (Perm. Ct. Arb. Sept. 17, 2007) (“It is a well established principle of international law that counter measures may not involve the use of force.”).

¹⁴ In his Eighth Report on State Responsibility, supra note 9, paras. 1–81, Special Rapporteur Ago raised the question whether the state of necessity might “have the effect of precluding, by way of exception, the wrong fulness of an assault which proved... to be less serious.” Id., para. 56. If Ago ultimately left the matter undecided, several scholars have built on his reasoning by applying the “state of necessity” to cross-border pursuit of criminals, counter terrorist operations, and protection of nationals abroad. See Raby, Jean, The State of Necessity and the Use of Force to Protect Nationals, 1988 Can, Y.B. Int’l L. 253 Google Scholar; Laursen, Andreas, The Use of Force and (the State of) Necessity 37 V and. J. Transnat’l L. 485 (2004)Google Scholar; Oscar Schachter, International Law in Theory and Practice 169–73 (1991).

¹⁵ Corten, presents an authoritative rebuttal in L’état de nécessité peut-il justifier un recours à la force non constitut if d’agression?, 1 Global Community 11 (2004)Google Scholar. Others who arrive at the same conclusion include Mrazek, supra note 11, at 106–07, Cahier, Philippe, Changements et continuité du droit international, 195 Recueil des cours 9, 74 (1985)Google Scholar, Verhoeven, Joe, Les “étirements” de la légitime défense, 48 Annuaire franc¸ais de droit international 49, 75 (2002)CrossRef Google Scholar, and Stahn, Carsten, International Law at Crossroads?: The Impact of September 11, 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 183, 212 (2002)Google Scholar.

¹⁶ GA Res. 42/22, annex, sec. I, para. 3 (Nov. 18, 1987).

¹⁷ Article 51 provides:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

¹⁸ Article 25(2)(a) of the Articles on State Responsibility, supra note 8, states that necessity may not be invoked as a ground for precluding wrongfulness if” the international obligation in question excludes the possibility of invoking necessity.”

¹⁹ For references, see Corten, supra note 15, at 27–31. Not a single state adopted the opposite view. Several other arguments can be mentioned. Thus, the idea that uses of force can be justified by relying on necessity does not find support in actual state practice. See id. at 42–47. Accepting that a state of necessity can be relied upon to justify certain uses of force would also lead to manifestly absurd results insofar as, unlike countermeasures, this ground precluding wrongfulness essentially relates to situations where the other state has not committed an internationally wrongful act. See id. at 18–23

²⁰ Except for self-defense and consent, of course (insofar as permitted under primary law).

²¹ Without entering the debate on the legality of preemptive or preventive self-defense, it can be stated by analogy that every threat of an armed attack automatically entails a threat of force. At the same time, it is noted that the relationship between the notions “use of force” and “armed attack” is not necessarily linear: if one accepts that nonstate actors can equally commit armed attacks in the sense of UN Charter Article 51 (irrespective of state involvement), then there are at least some armed attacks that do not simultaneously qualify as a use of force in the sense of Article 2(4) (from a ratione personae perspective) (since Article 2(4) covers only the threat or use of force by states in their international relations). In the present context, however, it suffices to state that, at least from a material perspective, acts that are deemed sufficiently grave to constitute an armed attack will automatically also be sufficiently grave to qualify as a use of force in the sense of Article 2(4).

²² See Ruys, supra note 5, at 143–49.

²³ GA Res. 3314 (XXIX), annex (Dec. 14, 1974); see Ruys, supra note 5, at 143–45.

²⁴ Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 191.

²⁵ Thomas M. Franck, Fairness in International Law and Institutions 260 (1995).

²⁶ See the references to armed force in the Charter’s preamble and to the use of force in Article 44, with the latter equating force with armed force.

²⁷ 6 Documents of the United Nations Conference on International Organization 339, 340, 609 (1945).

²⁸ See, e.g. Farer, Tom J., Political and Economic Coercion in Contemporary International Law, 79 AJIL 405 (1985)CrossRef Google Scholar. In a similar vein, for example, see Randelzhofer, Albrecht, Article 2(4), in 1 The Charter of the United Nations: A Commentary. 200, 209–10 (Simma, Bruno, Khan, Daniel-Erasmus, Nolte, Georg & Paulus, Andreas eds., 3d ed. 2002)Google Scholar, Rosalyn Higgins Problems and Process: International Law and How We Use It 248 (1994), and American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States 383 (1990). According to Dinstein, “the term ‘force’ in Article 2(4) must denote violence. It does not matter what specific means—kinetic or electronic—are used to bring it about, but the end result must be that violence occurs or is threatened.” Dinstein, Yoram, War, Aggression and Self-Defence 88 (5th ed. 2011)CrossRef Google Scholar. With the emergence of cyberwarfare, an ongoing debate (well beyond the scope of this article) has unfolded within academic and military circles alike, as to how cyber-attacks or computer-network attacks fit into Article 2(4) of the Charter. See Schmitt, Michael N., Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 37 Colum. J. Transnat’l L. 885 (1999)Google Scholar.

²⁹ E.g., Dinstein, supra note 28, at 87.

³⁰ For some (hesitant) indications of such narrow reading of Article 2(4), see Gray, Christine D., International Law and the Use of Force 32–33 (3d ed. 2008 Google Scholar). Among legal scholars, this position has been most staunchly defended by Anthony D’Amato, International Law: Process and Prospect, 57–87 (1987) (with the latest, 2013 revision of this material available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321806).

³¹ See, e.g., Henkin, Louis, International Law: Politics and Values 115–16 (1995)Google Scholar; Kritsiotis, Dino, When States Use Armed Force, in The Politics of International Law 45, 58–59 (Reus-Smit, Christian ed., 2004)CrossRef Google Scholar. The question remains to what extent certain uses of force, most notably (unilateral) humanitarian interventions, may escape from the ambit of UN Charter Article 2(4) because they are not “inconsistent with the Purposes of the United Nations.” As indicated in the introduction, the credibility of this argument and the alleged support for humanitarian intervention in customary practice are not addressed in the present essay since the focus primarily rests with the meaning of the notion of force.

³² 6 Documents of the Conference on International Organization, supra note 27, at 334–35; see Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks 12 (2002).

³³ General Treaty for the Renunciation of War, Aug. 27, 1928, 94 LNTS 57.

³⁴ See supra note 23.

³⁵ See, e.g., Special Committee on the Question of Defining Aggression, UN GAOR, 4th Sess., 82d mtg. at 20 (Mexico), UN Doc. A/AC134/SR.82 (June 7, 1991); UN GAOR, 4th Sess., 85th mtg. at 47 (France), UN Doc. A/AC.134/SR.85 (June 7, 1991); UN GAOR, 6th Sess., 106th mtg. at 29 (Mexico), UN Doc. A/AC 134/SR.106 (May 28, 1975); UN GAOR, 6th Sess., 109th mtg. at 49 (Ghana), UN Doc. A/AC 134/SR.109 (May 30, 1975).

³⁶ Special Committee on the Question of Defining Aggression, UN GAOR, 6th Sess., 105th mtg. at 16, UN Doc. A/AC134/SR.105 (May 9, 1973).

³⁷ Special Committee on the Question of Defining Aggression, UN GAOR, 3d Sess., vol. II, 68th mtg. at 23, UN Doc. A/AC 134/SR.68 (July 31, 1970).

³⁸ International Criminal Court, Assembly of States Parties, ICC Special Working Group on the Crime of Aggression, Resolution RC/Res.6 (“The Crime of Aggression”) (adopted by the Review Conference of the Rome Statute, 13th plen. mtg., ICC Doc. No. RC/11 (June 11, 2010)), at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

³⁹ July 17, 1998, 2187 UNTS 90. The resolution deleted Article 5(2) of the original statute and inserted Article 8 bis after Article 8.

⁴⁰ McDougall, Carrie, The Crime of Aggression Under the Rome Statute of the International Criminal Court 125 (2013)Google Scholar; Trahan, Jennifer, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, 11 Int’l Crim. L. Rev. 49, 58 (2011)CrossRef Google Scholar. See, e.g., International Criminal Court, Assembly of States Parties, Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression, paras. 19–20, ICC Doc. ICC-ASP/5/SWGCA/INF.1 (Sept. 5, 2006).

⁴¹ Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 191. In a similar vein, see Oil Platforms (Iran v. U.S.), 2003 ICJ Rep. 161, paras. 51, 64 (Nov. 6).

⁴² Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 195.

⁴³ But see Ethiopia-Eritrea Claims Commission, Partial Award Jus ad Bellum, Ethiopia Claims 1–8 (Dec. 19, 2005), 45 ILM 430 (2006), available at http://www.pca-cpa.org/showpage.asp?pag_id=1151. For a critique of this award, see Gray, Christine D., The Ethiopia/Eritrea Claims Commission Oversteps Its Boundaries: A Partial Award?, 17 Eur.J. Int’l L. 699, 714–20 CrossRef Google Scholar.

⁴⁴ Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 231.

⁴⁵ Oil Platforms, supra note 41, para. 72.

⁴⁶ Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 195.

⁴⁷ Reply Submitted by the Albanian Government According to Order of the Court of 28 March 1948, Corfu Channel (UK v. Alb.), 1959-II ICJ Pleadings 313, para. 154 (Sept. 20, 1948).

⁴⁸ See Corten, supra note 2, at 69 n.131.

⁴⁹ Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4, 35 (Apr. 9).

⁵⁰ Corten, supra note 2, at 69–70; O’Connell, supra note 3, at 102–03.

⁵¹ Corfu Channel, supra note 49, at 6.

⁵² The court’s treatment of the issue takes up less than two pages of the 38-page judgment. See id. at 34–35.

⁵³ Id. at 35.

⁵⁴ Id.

⁵⁵ Id.

⁵⁶ By way of comparison, one may recall that in Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 ICJ Rep. 280, para. 165 (Dec. 19), the ICJ decided that Uganda’s intervention in the Democratic Republic of the Congo amounted to a “grave” violation of UN Charter Article 2(4), though the court did not heed the latter’s request to characterize the intervention as aggression. It would be rash to infer, however, from this (regrettable) silence that the judges were of the opinion that Uganda’s conduct did not amount to aggression. Such negative inference is all the more inappropriate when considering the separate opinions of Judges Elaraby, id. at 327, paras. 9–19, and Simma, id. at 334, paras. 2–3. In the words of Judge Simma: “If there ever was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan invasion of the DRC.” Id., para. 2.

⁵⁷ See O’Connell, supra note 3, at 102.

⁵⁸ Id. at 102–07; Corten, supra note 2, at 52–92.

⁵⁹ Eichmann was taken to Jerusalem, where he was put on trial and ultimately executed.

⁶⁰ Letter Dated 15 June 1960 from the Representative of Argentina Addressed to the President of the Security Council, UN Doc. S/4336 (1960).

⁶¹ SC Res. 138 (June 23, 1960) (emphasis added); see also UN SCOR, 15th Sess., 865th mtg., UN Doc. S/PV.865 (June 22, 1960); UN SCOR, 15th Sess., 866th mtg., UN Doc. S/PV.866 (June 22, 1960); UNSCOR, 15th Sess., 867th mtg., UN Doc. S/PV.867 (June 23, 1960); UN SCOR, 15th Sess., 868th mtg., UN Doc. S/PV.868 (June 23, 1960); 1960 U.N.Y.B. 196–98.

⁶² E.g., Nottebohm (Liech. v. Guat.), 1955 ICJ Rep. 4, 226 (Apr. 6). In a similar vein, see, for example, International Law Association, Final Report of the Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, in Report of the Sixty-Ninth Conference 712, 726–27 (2000)Google Scholar, Villiger, Mark E., Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources 37 (2d ed. 1997)Google Scholar, and Akehurst, Michael, Custom as a Source of International Law, 1977 Brit. Y.B. Int’l L. 1, 10.Google Scholar

⁶³ See, e.g., Buzzini, Gionata P., Les comporte ments pass ifs des états et leur incidence sur la réglémentation de l’emploi de la force en droit international général, in Customary International Law on the Use of Force 79, 81–84 (Cannizzaro, Enzo & Palchetti, Paolo eds., 2005)Google Scholar; see also International Law Association, supra note 62, at 726.

⁶⁴ S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (Ser. A) No. 10, at 28 (Sept. 7).

⁶⁵ Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 188.

⁶⁶ E.g., Buzzini, supra note 63, at 82.

⁶⁷ Id.

⁶⁸ In his overview of customary practice, Corten refers to, among other things, the 1978 raid by Egyptian commandos at the Cypriot airport of Larnaca. The operation aimed at freeing hostages held by two Palestinian militants but resulted in direct combat between the forces of the two states. Noting that the Cypriot government condemned the Egyptian intervention (“only”) as a violation of its sovereignty, Corten— believing that the operation ought to be regarded as an outright use of force—suggests that this measured language may have essentially been due to “diplomatic considerations.” Corten refers to the “particular circumstances” of the case—notably, that Cyprus had apparently given Egyptian forces authorization to land, but not to intervene militarily—as the most plausible explanation why Cyprus spoke of a violation of its sovereignty (Olivier Corten, Le droit contrelaguerre 114 & n.267 (2008) (translations by author). In relation to other operations, however, Corten regards the omission of express references to Article 2(4) or Article 51 UN Charter as highly significant. No explanation is given why “diplomatic considerations” would play in one case but not in others.

⁶⁹ See SC Res. 138, pmbl. (June 23, 1960): “Mindful of the universal condemnation of the persecution of the Jews under the Nazis, and of the concern of people in all countries that Eichmann should be brought to appropriate justice for the crimes of which he is accused[.]”

⁷⁰ Letter Dated 21 June 1960 from the Permanent Representative of Israel to the President of the Security Council, UN Doc. S/4342 (1960).

⁷¹ Corfu Channel, supra note 49, at 22–23.

⁷² Id. at 33.

⁷³ Over twenty CIA operatives were condemned in absentia to significant jail sentences by Italian courts. A number of Italian intelligence officers were also convicted. Before the court in Milan, the lead prosecutor described the kidnapping, inter alia, as “a serious crime against Italian sovereignty and human rights.” Whitlock, Craig, CIA Ruse Is Said to Have Damaged Probe in Milan, Wash. Post, Dec. 6, 2005, at A1 Google Scholar; see also, Italy’s Ex–Spy Chief Convicted over 2003 CIA Rendition, BBC News (Feb. 12, 2013), at http://www.bbc.com/news/world-europe-21435632.

⁷⁴ See Rawlinson, Kevin, US Special Forces Raids Target Islamist Militants in Libya and Somalia, Guardian (Oct. 6, 2013)Google Scholar, at http://www.theguardian.com/world/2013/oct/06/us-special-forces-libya-somalia; Libya Demands US Return Al-Qaeda Suspect, Al Jazeera (Oct. 9, 2013), at http://www.aljazeera.com/news/africa/2013/10/libya-congress-demands-us-return-al-liby-201310816424531164.html; Stephen, Chris, Ahmed, Abdalle & Smith, David, Libya Demands Explanation for US ‘Kidnapping’ of Al-Qaida Leader Al-Liby, Guardian (Oct. 7, 2013)Google Scholar, at http://www.theguardian.com/world/2013/oct/06/libya-kidnapping-citizen-us-forces-raid-somalia.

⁷⁵ The Somali prime minister declared: “We have close cooperation with the world...in the fight against al-Shabaab.... We welcome any operation to hunt the terrorist leaders....” Stephen et al., supra note 74.

⁷⁶ Id.

⁷⁷ In spite of repeatedly denouncing the CIA’s drone campaign as a violation of Pakistani sovereignty, top secret CIA documents and Pakistani diplomatic memorandums reportedly suggest that top officials in Pakistan’s government had for years secretly endorsed the program and routinely received classified briefings on strikes and casualty counts. See Miller, Greg & Woodward, Bob, Secret Deal with Pakistan on Drones, Wash. Post, Oct. 24, 2013, at A1 Google Scholar. Consider also the mixed reactions to the killing of Osama bin Laden by U.S. Special Forces as reflected in Pakistan’s Abottabad Commission Report, paras. 608–12 (2013), at http://www.documentcloud.org/documents/724833-aljazeera-bin-laden-dossier.html#document/; see also infra note 233 and accompanying text.

⁷⁸ Corten, supra note 2, at 91.

⁷⁹ The lack of friendly relation was, in Corten’s view, the reason why the (failed) U.S. attempt in 1980 to rescue the Tehran hostages by force and Israeli commandos’ killing of a Palestinian Liberation Organization leader in Tunis in 1988 were, despite their extremely limited character, viewed in an Article 2(4) context. Id. at 74.

⁸⁰ For an insightful synopsis, see Gill, Terry D., The Forcible Protection, Affirmation and Exercise of Rights by States Under Contemporary International Law, 1992 Neth. Y.B. Int’l L. 105, 128–29 Google Scholar. On aerial incursions, see Lissitzyn, Oliver J., The Treatment of Aerial Intruders in Recent Practice and International Law, 47 AJIL 559 (1953)CrossRef Google Scholar, and Ki-Gab Park, La protection de la souveraineté aérienne (1991). On naval incursions, see, for example, Froman, J. David, Uncharted Waters: Non-innocent Passage of Warships in the Territorial Sea, 21 San Diego L. Rev. 625 (1983–84)Google Scholar, Fleck, Dieter, Rules of Engagement of Maritime Forces and the Limitation of the Use of Force Under the UN Charter, 1989 Ger. Y.B. Int’l L. 165 Google Scholar, Henseler, Sean P., Self-Defense in the Maritime Environment Under the New Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF), 53 Naval L. Rev. 211 (2006)Google Scholar, and Kwast, Patricia Jimenez, Maritime Law Enforcement and the Use of Force: Reflections on the Categorization of Forcible Action at Sea in the Light of the Guyana/Suriname Award, 13 J. Conflict & Security L. 49 (2008)CrossRef Google Scholar. On land incursions, see, for example, Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law (1969). See also, e.g., Corten, supra note 2, at 60–61. The present section is based on the general overview in Ruys, supra note 5, at 184–99, 347–50.

⁸¹ Whereas ground and aerial incursions presuppose the agreement of the territorial state, the situation is more complex when dealing with naval incursions. Entry of the territorial sea by foreign warships is, in principle, permitted by the UN Convention on the Law of the Sea (UNCLOS), provided that it qualifies as “innocent passage.” UN Convention on the Law of the Sea, Arts. 18, 19(1), opened for signature Dec. 10, 1982, 1833 UNTS 397.

Article 19(2) makes clear that passage is not considered innocent if the ship engages in a number of impermissible activities, such as military exercises, threats or uses of force in violation of the UN Charter, willful and serious pollution, or survey activities. Article 21 recognizes that the coastal state may adopt additional regulations—for instance, to guarantee the safety of navigation or to preserve the environment. Article 20 specifies that, in order to be able to verify innocent passage, submarines are required to navigate on the surface and show their flags.

⁸² See Corten, supra note 2, at 76–77; Ruys, supra note 5, at 166.

⁸³ E.g., Office of the Chief of Naval Operations and Headquarters, Department of the Navy,, U.S. Marine Corps & Department of Homeland Security and U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, chs. 4–6, NWP 1-14M (2007), available at http://www.usnwc.edu/; U.S. Department of Defense, U.S. Rules of Engagement in the Persian Gulf (Sept. 25, 1987), reproduced in Austl. Int’l L. News 71 (1988). Consider also the reference to hostile intent in 2 Report on the Conflict in Georgia, supra note 4, at 232.

⁸⁴ See the analysis in Ruys, supra note 5, at 158–68. See also Broms, Bengt, The Definition of Aggression, 154 Recueil des cours 299, 364 (1977-I)Google Scholar. Consider, for example, Special Committee on the Question of Defining Aggression, UN GAOR, 3d Sess., vol. I, 56th mtg. at 27 (Canada), UN Doc. A/AC.134/SR.56 (July 17, 1970); UN GAOR, 3d Sess., vol. I, 57th mtg. at 41 (Japan), 44 (Turkey), UN Doc. A/AC.134/SR.57 (July 18, 1970); UN GAOR, 3d Sess., vol. II, 68th mtg. at 20 (Canada), 21–22 (United States), 29 (Soviet Union), UN Doc. A/AC.134/SR.68 (July, 31, 1970).

⁸⁵ Oil Platforms, supra note 41, paras. 52, 61, 64; Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 231 (“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... as amounting, singly or collectively, to an ‘armed attack’....”). Consider also Gray, supra note 30, at 179.

⁸⁶ On numerous occasions, states claiming to be the victims of armed attacks or attempting to justify forcible responses to territorial incursions stressed the premeditated or deliberate character of the initial attacks or provocations. See, e.g., UN SCOR, 19th Sess., 1107th mtg. at 2, UNDoc. S/PV.1107 (Apr. 3, 1964) (United Kingdom; 1964 Harib fort raid); 1964 U.N.Y.B. 147; Letter Dated 7 February 1965 from the Representative of the United States of America to the President of the Security Council, UN Doc. S/6174 (Feb. 8, 1965) (United States; Gulf of Tunkin incident); 1967 U.N.Y.B. 175 (Six-Day War); 1968 U.N.Y.B. 191 (Israeli campaign against Lebanon); UN SCOR, 58th Sess., 4836th mtg. at 17, UN Doc. S/PV.4836 (Oct. 5, 2003) (Morocco; 1993 Israeli aerial raid in Syrian territory); Counter-memorial and Counter-claim Submitted by the United States of America, para. 4.11 (June 23, 1997), Oil Platforms, supra note 41. In several precedents, however, the language of UN Charter Article 2(4) was not used, or no defensive action was undertaken, (in part) due to a lack of hostile intent. See the examples listed in section “What About Unlawful Territorial Incursions That Do Not Result in Actual Armed Confrontation? An Exercise in Reverse Engineering” below.

⁸⁷ See, for example, Special Committee on the Question of Defining Aggression, UN GAOR, 4th Sess., 84th mtg. at 36 (Soviet Union), UN Doc. A/AC.134/SR.84 (Feb. 1971), and UN GAOR, 4th Sess., 85th mtg. at 48 (France), UN Doc. A/AC.134/SR.85 (Feb. 1971).

⁸⁸ As an example of an unintentional incursion by troops, see Angola Denies Congo Incursion, Says Lost Troops Entered Its Territory, Reuters (Oct, 21, 2013), at http://www.reuters.com/article/2013/10/21/us-angola-congorepublic-idUSBRE99K0S520131021.

⁸⁹ For the 1946 incident, see Lissitzyn, supra note 80, at 570–72. For the 1980 incident, see Grammig, Robert J., The Yoron Jima Submarine Incident of August 1980: A Soviet Violation of the Law of the Sea, 22 Harv. Int’l L.J. 331, 332 (1981)Google Scholar.

⁹⁰ On the interception of aerial intruders, see Lissitzyn, supra note 80, Park, supra note 80, at 291–320, and Sundberg, Jacob W. F., Legitimate Responses to Aerial Intruders: The View from a Neutral State, 10 Annals Air & Space L. 251 (1985).Google Scholar

⁹¹ E.g., Lissitzyn, supra note 80, at 587.

⁹² See, e.g., UN SCOR, 15th Sess., 880th mtg., at 9–10 (Turkey), UN Doc. S/PV.880 (July 22, 1960).

⁹³ E.g., Park, supra note 80, at 318; Lissitzyn, supra note 80, at 579; Sundberg, supra note 90, at 259–68.

⁹⁴ See, e.g., The Commander’s Handbook on the Law of Naval Operations, supra note 83, sec. 4.4.2 (see also the quote reproduced infra note 158).

⁹⁵ See UN SCOR, 15th Sess., 857th mtg., UN Doc. S/PV.857 (May 23, 1960); UN SCOR, 15th Sess., 858th mtg., UN Doc. S/PV.858 (May 24, 1960); UN SCOR, 15th Sess., 859th mtg., UN Doc. S/PV.859 (May 25, 1960);UN SCOR, 15th Sess., 860th mtg., UNDoc. S/PV.860 (May 26, 1960). At the end of the debates, a Soviet draft resolution that would have condemned the United States’ “aggression” was rejected by a 7-2 vote against (only the Soviet Union and Poland voted in favor; two other states abstained). State practice indicates that when coastal states discover within their EEZs (or within the “air defense identification zones” established by them) military aircraft that are engaged in activities (for example, surveillance) that the coastal states regard as contrary to their interests or even outright unlawful, they have the authority only “to intercept such flights safely and inspect them to ensure their nonthreatening character.” Dutton, Peter A., Caelum Liberam: Air Defense Identification Zones Outside Sovereign Airspace, 103 AJIL 691, 705 (2009)Google Scholar. Put differently, while the coastal state is entitled to track and monitor the aircraft’s trajectory, it is not entitled to use actual force to halt its activities. The same is true by analogy for the activities of warships in the EEZ. For corroborating support, see, for example, UN SCOR, 15th Sess., 880 mtg., UN Doc. S/PV.880 (July 22, 1960), UNSCOR, 15th Sess., 881st mtg., UN Doc. S/PV.881(July 25, 1960), UN SCOR, 15th Sess., 882d mtg., UN Doc. S/PV.882 (July 26, 1960), UN SCOR, 15th Sess., 883d mtg., UN Doc. S/PV.883 (July 26, 1960), Lissitzyn, supra note 80, at 140, and Royal Australian Air Force, AAP 1003, Operations Law for RAAF Commanders, para. 2.19 (2d ed. 2004).

⁹⁶ E.g., Froman, supra note 80, at 674 n.230; Ratner, Steven R., The Gulf of Sidra Incident of 1981: A Study of the Lawfulness of Peacetime Aerial Engagements, 10 Yale J. Int’l L. 58, 71 n.58 (1984)Google Scholar (referring to an incident whereby Algeria escorted U.S. warships out of claimed Algerian waters without resistance by the United States).

⁹⁷ Intrusions by submerged submarines pose specific problems in that it may be difficult, if not impossible, to verify objectively whether the intrusion is caused by a navigation error or distress, or is undertaken deliberately (for example, for purposes of surveillance). Furthermore, it is impossible for anyone outside as ub marine to assess its state of readiness. For this reason, Dinstein argues that the intrusion by a submerged submarined may be regarded as an incipient armed attack, permitting the coastal state to employ forcible measures inself-defense. See Dinstein, supra note 28, at 213; see also Ruys, supra note 5, at 195–98.

⁹⁸ E.g., Special Committee on the Question of Defining Aggression, UN GAOR, 3d Sess., vol. I, 64th mtg. at 134 (Soviet Union), UN Doc. A/AC.134/SR.64 (July 1970); UN GAOR 3 d Sess., vol. II 68 th mtg. at 22 (United States), UN Doc. A/AC.134/SR.68 (July, 31, 1970); UN GAOR, 4th Sess., 83d mtg. at 27 (Cyprus), UN Doc. A/AC.134/SR.83 (Feb. 1971).

⁹⁹ Letter Dated 22 October 1967 from the Permanent Representative of the United Arab Republic Addressed to the President of the Security Council, UN Doc. S/8205 (Oct. 23, 1967).

¹⁰⁰ Id. While Israel objected that the vessel was on aroutine patrol on the high seas, several states expressed support for the UAR’s self-defense claim, with others confining themselves to urging both parties to show restraint. See references infra notes 160–62.

¹⁰¹ Quoted in Lissitzyn, supra note 80, at 572.

¹⁰² See 1960 U.N.Y.B. 40–42; UN SCOR, 15th Sess., 857th mtg., paras. 24–31 (Soviet Union), UN Doc. S/PV.857 (May 23, 1960); see also Cable Dated 19 May 1960 from the Minister for Foreign Affairs of the Union of Soviet Socialist Republics Addressed to the President of the Security Council, Transmitting an Explanatory Memorandum in Amplification of His Cable Dated 18 May 1960 (S/4314), UN Doc. S/4315 (May 19, 1960); Cable from the Minister for Foreign Affairs of the Union of Soviet Socialist Republics to the Secretary-General of the United Nations, Transmitting an Explanatory Memorandum in Amplification of His Cable of the Same Date, UN Doc. S/4385 (July 14, 1960). Consider also the following UK statement supporting the recourse to armed force by U.S. naval units against Vietnamese torpedo boats in the context of the 1964 Gulf of Tunkin incident: “In the present case, there has not been merely one isolated attack on United States warships in international waters; we have been told that there have been repeated attacks, the nature of which is such as to indicate that they were deliberately mounted.” UN SCOR, 19th Sess., 1140th mtg. at 13, UN Doc. S/PV.1140 (Aug. 5, 1964).

¹⁰³ See Sadurska, Romana, Foreign Submarines in Swedish Waters: The Erosion of an International Norm, 10 Yale J. Int’l L. 34, 37.Google Scholar

¹⁰⁴ Quoted in Lissitzyn, supra note 80, at 572–73.

¹⁰⁵ For references, see infra note 156.

¹⁰⁶ See, e.g., Stephens, Dale, Rules of Engagement and the Concept of Unit Self-Defense, 45 Naval L. Rev. 126, 148 (1998)Google Scholar.

¹⁰⁷ See Ruys, supra note 5, at 350–55.

¹⁰⁸ The Commander’s Handbook on the Law of Naval Operations, supra note 83, secs. 4.4.3.2,.5,.6; see also Preliminary Objections Submitted by the United States of America, at 203 (Mar. 4, 1991), Aerial Incident of 3 July 1988 (Iran v. U.S.), 1989 ICJ Rep 132 (Dec. 13).

¹⁰⁹ Letter Dated 6 July 1988 from the Acting Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/19989 (1988).

¹¹⁰ Report of ICAO Fact-Finding Investigation, November 1988, Destruction of Iran Airbus A 300 in the Vicinity of Qeshm Island, Islamic Republic of Iran on 3 July 1988, para. 3.2.1, 28 ILM 900 (1989) (emphasis added). Note that the aircraft was shot while in Iranian airspace.

¹¹¹ Memorial of the Islamic Republic of Iran, para. 4.60 (July 24, 1990), Aerial Incident of 3 July 1988, supra note 108, at http://www.icj-cij.org/docket/files/79/6629.pdf; see also id., paras. 4.56–.59.

¹¹² When states have competing territorial claims, the application of the rules on the use of force may be influenced by views about which state holds valid title over the disputed territory. But even if a state can ultimately establish valid title, its sending troops into disputed land may give rise to a breach of both the obligation to settle disputes by peaceful means (UN Charter Article 2(3)) and (possibly) the prohibition on the use of force (insofar as the state initiates an actual armed confrontation to break the existing status quo).

¹¹³ Compare, for instance, the U.S. account (UN SCOR, 19th Sess., 1140th mtg., paras. 36–38, UN Doc. S/PV.1140 (Aug. 5, 1964)) to that of Vietnam (Telegram Dated 19 August 1964 from the Minister for Foreign Affairs of the Democratic Republic of Viet-Nam Addressed to the President of the Security Council, UN Doc. S/5907 (Aug. 20, 1964)). See also UN Doc. S/PV.1140, supra, para. 56 (Soviet Union); UN Doc. S/PV.1141, supra, paras. 29–31 (Czechoslovakia).

¹¹⁴ Compare Letter Dated 19 August 1982 from the Acting Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UNDoc. S/14632 (Aug. 19, 1981), with Letter Dated 20 August 1981 from the Chargé d’Affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security Council, UN Doc. S/14636 (1981). See also 1981 U.N.Y.B. 360–61. See, too, the account of Soviet forces’ 1954 downing of two U.S. military aircraft in Ruys, supra note 5, at 351.

¹¹⁵ Ian Brownlie, in his seminal book on the use of force by states, deals with trespassing ships and vessels under the heading “problems relating to self-defense,” but he remains vague as to the legal basis for taking action against such incursions. Ian Brownlie, International Law and the Use of Force by States 373 (1963).

¹¹⁶ Paramilitary Activities in and Against Nicaragua, supra note 6, paras. 191, 195.

¹¹⁷ See Ruys, supra note 5, at 139–49.

¹¹⁸ Yoram Dinstein, War, Aggression and Self-Defence 192 (4th ed. 2005); see also id. at 198–99.

¹¹⁹ Dinstein, supra note 28, at 244.

¹²⁰ Id.

¹²¹ 2 Report on the Conflict in Georgia, supra note 4, at 249.

¹²² Oil Platforms, supra note 41, at 324, para. 12 (sep. op. Simma, J.). Asserting that “the permissibility of strictly defensive military action taken against” Iranian mine, gunboat, or helicopter attacks on U.S. vessels “cannot be denied,” Judge Simma criticized the court for distinguishing between armed attacks and less grave uses of force. In so doing, the court created “the impression that, if offensive military actions remain below the— considerably high—threshold of Article 51 of the Charter, the victim of such actions does not have the right to resort to—strictly proportionate—defensive measures equally of a military nature.” Id.

¹²³ But see supra notes 11–13 on the prohibition of forcible countermeasures.

¹²⁴ Gill, supra note 80, at 111–15.

¹²⁵ Id. at 115 (inter alia, because of the invocation of the right of collective self-defense). Gill does acknowledge that “if such low-scale violations of a State’s territory were repeated over a period of time,” “such actions could cumulatively constitute an armed attack.” Id. at 111.

¹²⁶ Id. at 116.

¹²⁷ Id. at 111. The difference between on-the-spot reaction in self-defense and the use of force in the protection of a right, Gill observes, is that in the latter case the forcible reaction must be restricted to the state’s territory. See id. at 129.

¹²⁸ See, e.g., Stephens, supra note 106; Trumbull, Charles P. IV, The Basis of Unit Self-Defense and Implications for the Use of Force, 23 Duke J. Comp. & Int’l L. 121 (2012)Google Scholar. But see Dinstein, supra note 28, at 220. Unit self-defense is, Dinstein argues, part and parcel of the over arching regime on the use of force in self-defense: “It must be grasped that, from the standpoint of international law, all self-defence is national self-defence. There is a quantitative, but no qualitative difference between a single unit responding to an armed attack and the entire military structure doing so.”

¹²⁹ E.g., Fleck, supra note 80, at 179–80.

¹³⁰ Institut de droit international, Present Problems of the Use of Armed Force in International Law—Self-Defence, para. 5, 10A Resolution EN (Oct. 27, 2007), at http://www.idi-iil.org/idiE/resolutionsE/2007_san_02_en.pdf. Corten, supra note 11, at 857–58, dismisses Judge Simma’s concept of “proportionate forcible countermeasures” by victims of small-scale uses of force. Instead, he emphasizes that

a State can in principle use its sovereign powers to take police measures within its own territory. If State A arrests soldiers... of State B within its borders, intercepts a foreign plane within its aerial space, or orders a foreign vessel to leave its territorial waters, no problem arises a priori in relation to Article 2(4). We are rather in the framework of police measures based on the territorial sovereignty of each State within its own territory. Therefore this State does not need to rely on self-defence to justify its use of “force,” this use being considered as a normal exercise of its sovereign powers.

¹³¹ Corten, supra note 2, at 77.

¹³² See supra note 32 and accompanying text.

¹³³ Gill, supra note 80, at 122.

¹³⁴ Id. at 121.

¹³⁵ Article 3(b) of the Chicago Convention on International Civil Aviation, Dec. 7, 1944, 15 UNTS 295, states that “[a]ircraft used in military, customs and police services shall be deemed to be state aircraft.”

¹³⁶ Program on Humanitarian Policy and Conflict Research, Harvard School of Public Health, Manual on International Law Applicable to Air and Missile Warfare 47 (2013).

¹³⁷ UN Convention on Jurisdictional Immunities of States and Their Property, Art. 21(1)(b), GA Res. 59/38, annex (Dec. 2, 2004) (not yet in force).

¹³⁸ Corten, supra note 11, at 859.

¹³⁹ Id. at 857–58.

¹⁴⁰ See supra note 135.

¹⁴¹ Consider, for example, O’Connell, supra note 3, at 102: “If the force used is not sufficient for the purpose, the enforcing state is nevertheless required to stop short of force that would violate Article 2(4).”

¹⁴² Corten, supra note 2, at 83.

¹⁴³ See, e.g., Corten, supra note 2, at 64.

¹⁴⁴ Application of United States of America, Aerial Incident of 7 October 1952 (U.S. v. USSR), ICJ Pleadings 8 (June 2, 1955); Application of United States of America, Aerial Incident of 10 March 1953 (U.S. v. Czech.), ICJ Pleadings 8 (Mar. 22, 1955).

¹⁴⁵ See 1954 U.N.Y.B. 47–50; Letter Dated 8 September 1954 from the Representative of the United States of America Addressed to the President of the Security Council, UN Doc. S/3287 (Sept. 9, 1954); Letter Dated 10 September 1954 from the Representative of the Union of Soviet Socialist Republics Addressed to the President of the Security Council, UNDoc. S/3288 (1954) (speaking of aviolation of the Soviet frontier); Letter Dated 11October 1954 from the Representative of the United States of America Addressed to the President of the Security Council, UNDoc. S/3304 (Oct. 12, 1954); Letter Dated 22October 1954 from the Representative of the Union of Soviet Socialist Republics Addressed to the President of the Security Council, UN Doc. S/3308 (Oct. 25, 1954) (speaking of a violation of the Soviet frontier); UN SCOR, 9th Sess., 679th mtg., UN Doc. S/PV.679 (Sept. 10, 1954); UN SCOR, 9th Sess., 680th mtg., UN Doc. S/PV.680 (Sept. 10, 1954).

¹⁴⁶ On the U-2 incident, see UN SCOR, 15th Sess., 857th mtg., UN Doc. S/PV.857 (May 23, 1960), UN SCOR, 15th Sess., 858th mtg., UN Doc. S/PV.858 (May 24, 1960), UN SCOR 15th Sess., 859th mtg., UN Doc. S/PV.859 (May 25, 1960), and UN SCOR, 15th Sess., 860th mtg., UN Doc. S/PV.860 (May 26, 1960). On the RB-47 incident, see UN SCOR, 15th Sess., 880th mtg., UN Doc. S/PV.880 (July 22, 1960), UN SCOR, 15th Sess., 881st mtg., UN Doc. S/PV.881 (July 25, 1960), UN SCOR, 15th Sess., 882d mtg., UN Doc. S/PV.882 (July 26, 1960), and UN SCOR, 15th Sess., 883d mtg., UN Doc. S/PV.883 (July 26, 1960). In both cases, the Soviet Union called upon the Security Council to label U.S. infringements of its territorial airspace as aggression. See, e.g., UN Doc. S/PV.857, supra, paras. 24–100; UN Doc. S/PV.880, supra, paras. 19, 38 (also referring to the use of force). See, in particular, UN Doc. S/PV.860, supra, paras. 7–9. The Soviet Union’s position was supported by Poland. See UN Doc. S/PV.858, supra, paras. 85, 90; UN Doc. S/PV.883, supra, paras. 8, 11, 17. A majority of states nonetheless dismissed the suggestion that a territorial incursion by a spy plane could of itself amount to an act of aggression. See UN Doc. S/PV.857, supra, para. 115 (United States); UN Doc. S/PV.858, supra, paras. 10 (France), 49 (Argentina), 64 (China); UN Doc. S/PV.859, supra, paras. 8, 10 (Tunisia; no aggression since the aircraft was unarmed), 47 (Ecuador); UN Doc. S/PV.882, supra, para. 31 (Italy). In so doing, some states expressed understanding for the U.S. surveillance flights in light of Soviet secrecy over its arms buildup and the Soviet Union’s having engaged in similar acts itself. France and the United Kingdom suggested, moreover, that a territorial incursion by a spy plane did not qualify as a use of force in the sense of Article 2(4). See UN Doc. S/PV.858, supra, para. 25 (United Kingdom); UN Doc. S/PV.881, supra, para. 80 (France, though France did acknowledge elsewhere that such incursions did entail interference in a state’s internal affairs (see UN Doc. S/PV.858, supra, para. 9)).

¹⁴⁷ See, e.g., Application of United States of America, Aerial Incident of 7 October 1952, supra note 144, at 20 (“hostile and belligerent acts under international law”); Application of United States of America, Aerial incident of 10 March 1953, supra note 144, at 18 (“effort to exert terror, threats and illegal force over the area of Germany near the Czechoslovak border”), 24 (“aggressive action”). In relation to the 1954 incident, see Letter Dated 8 September 1954 from the Representative of the United States of America Addressed to the President of the Security Council, UN Doc. S/3287 (Sept. 9, 1954), and UN SCOR, 9th Sess., 679th mtg., para. 34 (United States), UN Doc. S/PV.679 (Sept. 10, 1954). In relation to the 1954 incident, the United States suggested, moreover, that by its “unprovoked attack in the air space over the high seas,” the Soviet Union had committed a “clear violation of the obligations undertaken by [it] when it adhered to the Charter of the United Nations. In its adherence to that Charter, the Soviet Union promised not to resort to the use of force in any manner incompatible with the purposes of the United Nations.” Id., para. 32.

¹⁴⁸ For example (in relation to the 1954 incident), see UN SCOR, 9th Sess., 679th mtg., para.51 (Soviet Union), UN Doc. S/PV.679 (Sept. 10, 1954) (“Our aircraft... fully [conformed to] a principle of international law—the right of a State to defend its frontiers by whatever means the circumstances require.”), and UN SCOR, 9th Sess., 680th mtg., paras. 83– 84, UN Doc. S/PV.680 (Sept. 10, 1954) (on the recourse to force against aerial incursions: “This is natural and right. Every State which has any respect for its sovereignty, its independence and its security in all cases has the right of self-defence.”). See also UN SCOR, 15th Sess., 883d mtg., para. 11, UN Doc. S/PV.883 (July 26, 1960) (referring to UN Charter Article 51).

¹⁴⁹ Application of United States of America, Aerial Incident of 10 March 1953, supra note 144, at 21; Letter Dated 11 October 1954 from the Representative of the United States of America Addressed to the President of the Security Council, at 12, UN Doc. S/3304 (Oct. 12, 1954).

¹⁵⁰ SC Res. 135 (May 27, 1960). Interestingly, in the Repertoire of the practice of the Security Council, the incident is listed in Chapter XII (“Consideration of the Provisions of Other Provisions of the Charter”) under Part II(A), “Article 2(4) of the Charter.” UN Department of Political and Security Council Affairs, Repertoire of the Practice of the Security Council 1959 –1963, at 281–82 (1965).

¹⁵¹ See quote in Lissitzyn, supra note 80, at 571.

¹⁵² See 1981 U.N.Y.B. 360–61; Ratner, supra note 96.

¹⁵³ Letter Dated 25 August 1981 from the Chargé d’Affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya Addressed to the President of the Security Council, UN Doc. S/14642 (Aug. 25, 1981); Letter Dated 20 August 1981 from the Chargé d’Affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security Council, UN Doc. S/14636 (Aug. 20, 1981). The League of Arab States similarly denounced the U.S. conduct as aggression. See Letter Dated 21 August 1981 from the Chargé d’Affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security Council, UN Doc. S/14638/Rev.1 (Aug. 24, 1981).

¹⁵⁴ Letter Dated 19 August 1981 from the Acting Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/14632 (Aug. 19, 1981). O’Connell, supra note 3, at 106, invokes the Gulf of Sidra incident as evidence in support of the existence of a de minimis threshold. This reasoning is nonetheless at odds with the United States’ formal invocation of UN Charter Article 51 before the UN Security Council.

¹⁵⁵ E.g., Memorial of the Government of Pakistan on Jurisdiction, Aerial Incident of 10 August 1999 (Pak. v. India) (Jan. 7, 2000), at http://www.icj-cij.org/docket/files/119/8308.pdf.

¹⁵⁶ Letter Dated 4 February 2003 from the Chargé d’Affaires A.I. of the Permanent Mission of Lebanon to the United Nations Addressed to the Secretary-General, UN Doc. S/2003/148 (Feb. 5, 2003); Letter Dated 13 April 2001 from the Permanent Representative of Iraq to the United Nations Addressed to the Secretary-General, UN Doc. S/2001/370 (Apr. 17, 2001) (regarding: U.S. and UK violations of Iraqi airspace, explicitly referring to UN Charter Article 51); Letter Dated 1 August 1980 from the Chargé d’Affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security Council, annex, at 2–3, UN Doc. S/14094 (Aug. 6, 1980) (regarding U.S. aerial incursions, and reserving the “right of legitimate defence”).

¹⁵⁷ Letter Dated 4 February 2003 from the Chargé d’Affaires A.I. of the Permanent Mission of Lebanon to the United Nations Addressed to the Secretary-General, UN Doc. S/2003/148 (Feb. 5, 2003).

¹⁵⁸ The Commander’s Handbook on the Law of Naval Operations, supra note 83, sec. 4.4.2; see also id., secs. 2.5.2.1, .4 (on warships).

¹⁵⁹ Operations Law for RAAF Commanders, supra note 95, para. 2.25.

¹⁶⁰ Letter Dated 22 October 1967 from the Permanent Representative of the United Arab Republic Addressed to the President of the UN Security Council, UN Doc. S/8205 (Oct. 23, 1967). In spite of Israeli assertions, are port by the UN secretary-general apparently confirmed that the vessel was in UAR territorial waters at the time of the incident. See UN SCOR, 22d Sess., 1371st mtg., paras. 3–34, UN Doc. S/PV.1371 (Oct. 25, 1967).

¹⁶¹ See, in particular, UN SCOR, 22d Sess., 1369th mtg., para. 57 (Soviet Union), UN Doc. S/PV.1369 (Oct. 24/25, 1967), and UN SCOR, 22d Sess., 1371st mtg., para. 35, UN Doc. S/PV.1371 (Oct. 25, 1967) (Soviet Union).

¹⁶² UNSCOR, 22d Sess.,1369th mtg., UN Doc. S/PV.1369 (Oct.24/25, 1967); UNSCOR 22d Sess., 1370th mtg., UN Doc. S/PV.1370 (Oct. 25, 1967); UN SCOR, 22d Sess., 1371st mtg., UN Doc. S/PV.1371 (Oct. 25, 1967).

¹⁶³ See 1968 U.N.Y.B. 168–73.

¹⁶⁴ Letter Dated 25 January 1968 from the Permanent Representative of the United States of America Addressed to the President of the Security Council, UN Doc. S/8360 (Jan. 25, 1968); UN SCOR, 23d Sess., 1388th mtg., paras. 87– 88, UN Doc. S/PV.1388 (Jan. 26, 1968) (referring to a “premeditated armed attack”); id., para. 86.

¹⁶⁵ UN SCOR, 23d Sess., 1389th mtg., para. 9, UN Doc. S/PV.1389 (Jan. 27, 1968).

¹⁶⁶ See id., paras. 63–64 (Soviet Union, quoting with approval the official statements by North Korea); Jimenez Kwast, supra note 80, at 84.

¹⁶⁷ UN SCOR, 23d Sess., 1389th mtg., paras. 63–64, UN Doc. S/PV.1389 (Jan. 27, 1968).

¹⁶⁸ In that case, the United States claimed that two military vessels had been attacked in the Gulf of Tunkin by high-speed North Vietnamese boats with machine guns and torpedoes, and that the United States, in response, had taken defensive action against the torpedo boats and support facilities. See 1964 U.N.Y.B. 147–49.

¹⁶⁹ UN SCOR, 19th Sess., 1140th mtg., paras. 39–46, UN Doc. S/PV.1140 (Aug. 5, 1964) (referring to a “deliberate armed attack” and “aggression,” and invoking UN Charter Article 51).

¹⁷⁰ Id., paras. 78–80 (United Kingdom). The operation was also supported by the Republic of China. Id., para. 83.

¹⁷¹ UN SCOR, 19th Sess., 1141th mtg., paras. 24–40 (Czechoslovakia), 70–87 (Soviet Union), UN Doc. S/.PV.1141 (Aug. 7, 1964); see also Telegram Dated 19 August 1964 from the Minister for Foreign Affairs of the Democratic Republic of Viet-Nam Addressed to the President of the Security Council, UN Doc. S/5907 (Aug. 20, 1964).

¹⁷² See Sadurska, supra note 103, at 47–48.

¹⁷³ “ARA Libertad” (Arg. v. Ghana), ITLOS Case No. 20, Provisional Measures (Dec. 15, 2012).

¹⁷⁴ Id., para. 97.

¹⁷⁵ Id., Sep. Op. Chandrasekhara Rao, J., paras. 15–16.

¹⁷⁶ Id., para. 16. Quote from Oxman, Bernard H., The Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 Va. J. Int’l L. 809, 815 (1983–84)Google Scholar.

¹⁷⁷ See 22 Keesing’s Contemp. Archives, at 27548 (1976).

¹⁷⁸ Identical Letters Dated 8 February 2007 from the Permanent Representative of Israel to the United Nations Addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2007/69 (Feb. 8, 2007). Along the same lines, consider the Israeli Defence Forces’ shooting of two Lebanese soldiers, which followed a Lebanese army sniper’s killing of an Israeli soldier in December 2013. Troops Shot on Israel-Lebanon Border, BBC News (Dec. 16, 2013), at http://www.bbc.com/news/world-middle-east-25399340 (citing a statement by the IDF spokesman referring to the right of self-defense).

¹⁷⁹ Letter Dated 16 October 2008 from the Permanent Representative of Thailand to the United Nations Addressed to the President of the Security Council, UN Doc. S/2008/657 (Oct. 17, 2008).

¹⁸⁰ Letter Dated 15 October from the Permanent Representative of Cambodia to the United Nations Addressed to the President of the Security Council, UN Doc. S/2008/653 (Oct. 15, 2008).

¹⁸¹ Identical Letters Dated 12 July 2006 from the Permanent Representative of Israel to the United Nations Addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2006/515 (July 12, 2006).

¹⁸² See UN SCOR 61 st Sess., 5488 thmtg., UN Doc. S/PV.5488 (July 13, 2006); UN SCOR 61 st Sess., 5489th mtg., UN Doc. S/PV.5489 (July 14, 2006); UN SCOR, 61st Sess., 5493th mtg., UN Doc. S/PV.5493 (July 21, 2006). See also the overview of reactions of the international community in Ruys, Tom, Crossing the Thin Blue Line: An Inquiry into Israel’s Recourse to Self-Defense Against Hezbollah, 43 Stan. J. Int’l L. 265, 268–71 (2007)Google Scholar.

¹⁸³ Recall that this suggestion is not necessarily contrary to the case law of the ICJ. See discussion in section “The Case Law of the International Court of Justice Does Not Render Unequivocal Support to the Existence of a Gravity Threshold” in part II above.

¹⁸⁴ Dinstein, supra note 28, at 213 n. 1230.

¹⁸⁵ In similar vein see Jimenez Kwast, supra note 80, at 84–85, Kammerhofer, Jörg, The Armed Activities Case and Non-state Actors in Self-Defence Law, 20 Leiden J. Int’l L. 89, 105 (2007)CrossRef Google Scholar, and Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation Among States, Geneva, Mar. 31–May 1, 1970, 114th mtg. at 43 (Italy), UN Doc. A/AC.125/SR.114 (May 1, 1970).

¹⁸⁶ See Corten, supra note 2, at 76–77, 88–92.

¹⁸⁷ Military and Paramilitary Activities in and Against Nicaragua, supra note 6, para. 227.

¹⁸⁸ Id., para. 251.

¹⁸⁹ Id., para. 252 (emphasis added).

¹⁹⁰ Note that, in the written proceedings, Nicaragua did claim that territorial incursions by U.S. military aircraft and armed vessels violated UN Charter Article 2(4). Memorial of Nicaragua, Military and Paramilitary Activities in and Against Nicaragua, supra note 6, 4 ICJ Pleadings, paras. 216–25 (Apr. 30, 1985).

¹⁹¹ This crisis was still unfolding at the time of writing. See UN SCOR, 69th Sess., 7124th mtg., UN Doc. S/PV.7124 (Mar. 1, 2014); UN SCOR 69 th Sess., 7125th mtg., UN Doc. S/PV.7125 (Mar. 3, 2014); UN SCOR, 69th Sess., 7138th mtg., UN Doc. S/PV.7138 (March 15, 2014).

¹⁹² Article 3(e) lists as one of the examples of an “act of aggression” 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[.]” Clearly, if it can potentially be considered an act of aggression for the troops of one state to extend their presence on the territory of another state after the consent for those troops’ presence has been withdrawn, the same must be true for a territorial incursion for which no consent was given in the first place. Such an implication would implicitly confirm that territorial incursions by another state’s armed forces may well come within the ambit of the legal framework on the use of force. As for the breach of stationing agreements being considered as armed attacks, see, for example, 2 Report on the Conflict in Georgia, supra note 4, at 256–57. Regarding the Russian intervention in Crimea in early 2014, Ukraine has taken the position that the presence and conduct of Russian forces in the Crimean peninsula exceeded what was permitted under the existing stationing agreement. See UN SCOR, 69th Sess., 7124th mtg., UN Doc. S/PV.7124 (Mar. 1, 2014); UN SCOR, 69th Sess., 7125th mtg., UN Doc. S/PV.7125 (Mar. 3, 2014).

¹⁹³ See supra note 156.

¹⁹⁴ “Force Majeure” and “Fortuitous Event” as Circumstances Precluding Wrongfulness: Survey of State Practice, International Judicial Decisions and Doctrine, [1978] 2 Y.B. Int’l L. Comm’n, pt. 1, at 61, 99–104, UN Doc. A/CN.4/315. Corten, supra note 2, at 80, cites many of the incidents to substantiate his argument that Article 2(4) is subject to a de minimis threshold.

¹⁹⁵ E.g., Documents of the Thirtieth Session, [1978] 2 Y.B. Int’l L. Comm’n, pt. 1, paras. 127, 128, UN Doc. A/CN.4/SER.A/1978/Add.1 (Part 1).

¹⁹⁶ E.g., id., paras. 128, 130, 146.

¹⁹⁷ E.g., Bush Gives Apology for Suez Shooting, N.Y. Times, Mar. 28, 2008, at A 7; US Examines Suez Canal Shooting, BBC News (Mar. 25, 2008), at http://news.bbc.co.uk/2/hi/middle_east/7311992.stm. The U.S. president offered apologies and pledged that the United States would cooperate in the investigation of the incident. Despite the strong public outcry in Egypt, nothing indicated that Egypt regarded the incident as coming within the scope of UN Charter Article 2(4).

¹⁹⁸ See, e.g., 45 Keesing’s Contemp. Archives, at 42955 (1999).

¹⁹⁹ Letter Dated 10 May 1999 from the Permanent Representative of China to the United Nations Addressed to the Secretary-General, UN Doc. S/1999/535 (May 11, 1999); see also Letter Dated 10 May 1999 from the Permanent Representative of the Sudan to the United Nations Addressed to the President of the Security Council, UN Doc. S/1999/541 (May 12, 1999).

²⁰⁰ Faison, Seth, U.S. to Pay China for Embassy Bombing, N.Y. Times, July 31, 1999, at A5.Google Scholar

²⁰¹ See Hamamoto, Yukiya, The Incident of a Submarine Navigating Underwater in Japan’s Territorial Sea, 48 Japanese Ann. Int’l L. 123–29 (2005)Google Scholar.

²⁰² Special Committee on the Question of Defining Aggression, supra note 37, at 23.

²⁰³ Crawford, supra note 11, at 61.

²⁰⁴ Resolution RC/Res.6, supra note 38, Annex II. The “Elements of Crimes” indicates that the perpetrator must have been aware of the factual circumstances that established that the use of armed force constituted a (manifest) violation of the UN Charter. By contrast, it is not required to prove that the perpetrator made a legal evaluation as to whether the use of armed force was inconsistent with the Charter.

²⁰⁵ See McDougall, supra note 40, at 189–98.

²⁰⁶ Memorial of the Islamic Republic of Iran, supra note 111, paras. 4.48–.57.

²⁰⁷ Corten, supra note 11, at 856; O’Connell, supra note 3, at 102 (“Limited armed force to pluck hostages away from armed captors would... appear to be outside of the Article 2(4) prohibition.”), 106–07. A similar approach is reflected in the Report on the Conflict in Georgia, supra note 4.

²⁰⁸ Corten, supra note 2, at 55, 85.

²⁰⁹ Corten, supra note 11, at 856.

²¹⁰ Nils Melzer, Targeted Killing in International Law 51 (2008) (with references). Consider also the approach of the UN special rapporteur on extrajudicial executions: Philip Alston (Special Rapporteur), Extrajudicial, Summary or Arbitrary Executions—Addendum: Study on Targeted Killings, paras. 34–36, UN Doc. A/HRC/14/24/Add.6. (May 28, 2010) (presented to the Human Rights Council).

²¹¹ See Alston, supra note 210.

²¹² Claus Kress, Forcible Protection of Nationals Abroad 40 (2012) (manuscript prepared for the International Law Association Committee on the Use of Force) (on file with author).

²¹³ E.g., Draft Declaration on Rights and Duties of States, Art. 2, [1949] Y.B. Int’l L. Comm’n 286.

²¹⁴ By way of illustration, in 1978, when Egyptian commandos raided the Cypriot airport of Larnaca with a view to freeing hostages held by two Palestinian militants, Cypriot forces believed they were entitled to intervene and forcibly abort the raid. See supra note 68.

²¹⁵ Corten, supra note 2, at 54. Corten refers to several cases where the accused relied on their unlawful arrest in foreign territory as a defense. One such example is the Toscanino case of 1974. In that case a U.S. court of appeals found that the abduction of Toscanino, an Italian national suspected of importing narcotics into the United States, infringed the territorial sovereignty of Uruguay. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).

²¹⁶ Memorandum of the Government of New Zealand to the UNSecretary-General, Case Concerning the Differences Between New Zealand and France Arising from the “Rainbow Warrior”Affair (Fr./N.Z.), 19 R.I.A.A. 199, 201 (1986).

²¹⁷ Bachmann, Sascha-Dominik, Targeted Killings: Contemporary Challenges, Risks and Opportunities, 18 J. Conflict & Security L. 1, 24 (2013)CrossRef Google Scholar; see also Ruys, supra note 5, at 399–405; McDougall, supra note 40, at 84–85.

²¹⁸ SC Res. 568 (June 21, 1985).

²¹⁹ Corten, supra note 2, at 74.

²²⁰ 1988 U.N.Y.B. 229–30. Consider, for example, UN SCOR, 43d Sess., 2807th mtg. at 6 (Tunisia), 17–18 (Palestine Liberation Organization), 42 (Jordan), 56 (Algeria), UN Doc. S/PV.2807 (Apr. 21, 1988), UN SCOR, 43d Sess., 2808th mtg. at 17 (Yugoslavia), 38–40 (Somalia), UN Doc. S/PV.2808 (Apr. 22, 1988), and UN SCOR, 43d Sess., 2810th mtg. at 7 (Sudan), 21 (Zambia), UN Doc. S/PV. 2810 (Apr. 25, 1988).

²²¹ SC Res. 611 (Apr. 25, 1988).

²²² See Lobel, Jules, The Use of Force to Respond to Terrorist Attacks; The Bombing of Sudan and Afghanistan, 24 Yale J. Int’l L. 537 (1999)Google Scholar.

²²³ Letter Dated 20 August 1998 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/780 (Aug. 20, 1998).

²²⁴ See Murphy, Sean D., Contemporary Practice of the United States, 93 AJIL 161, 164–65 (1999)CrossRef Google Scholar.

²²⁵ Id.; Letter Dated 21 September 1998 from the Permanent Representative of the Sudan to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/879 (Sept. 22, 1998). See also the references in Ruys, supra note 5, at 426–27.

²²⁶ William Hays Parks, Memorandum on Executive Order 12333 and Assassination (Nov. 2, 1989), at http://www.hks.harvard.edu/cchrp/Use%20of%20Force/October%202002/Parks_final.pdf

²²⁷ Id.

²²⁸ See Crook, John R., Contemporary Practice of the United States, 106 AJIL 673 (2012)Google Scholar.

²²⁹ See Crook, John R., Contemporary Practice of the United States, 107 AJIL 462 (2013)Google Scholar.

²³⁰ See Crook, John R., Contemporary Practice of the United States, 105 AJIL 602 (2011)Google Scholar.

²³¹ See supra note 77.

²³² See supra note 12.

²³³ Writ Petition No. 1551-P/2012, Peshawar High Court, Judgment (Apr. 11, 2013) (Pak.), at http://www.peshawarhighcourt.gov.pk/images/wp%201551-p%2020212.pdf. Paragraph 6 of the judgment briefly discusses the role of the Pakistani authorities.

²³⁴ National Assembly of Pakistan, The House Strongly Condemns the Drone Attacks by the Allied Forces on the Territory of Pakistan (Resolution), Dec. 10, 2013, at http://www.na.gov.pk/en/resolution_detail.php?id=140. A few days later, the parliament of Yemen adopted a similar resolution condemning U.S. drone attacks (although these attacks are apparently carried out with the consent of Yemeni authorities) and stressing “the importance of preserving innocent civilian lives... and maintaining Yemeni sovereignty.” Yemen Parliament in Non-binding Vote Against Drone Attacks, Reuters (Dec. 15, 2013), at http://www.reuters.com/article/2013/12/15/us-yemendrones-idUSBRE9BE0EN20131215; Yemeni Parliament Votes to Ban Drone Attacks, Reuters (Dec. 16, 2013), at http://rt.com/news/yemen-parliament-bans-drones-294/.

²³⁵ Letter Dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General, UN Doc. S/2002/1012 (Sept. 12, 2002).

²³⁶ Letter Dated 13 September 2002 from the Permanent Representative of Georgia to the United Nations Addressed to the Secretary-General, UN Doc. S/2002/1035 (Sept. 16, 2002). On previous occasions, Georgia denounced Russian incursions (denied by Russia) as aggression incompatible with UN Chart Article 51. See, e.g., Letter Dated 23 August 2002 from the Permanent Representative of Georgia to the United Nations Addressed to the Secretary-General, UN Doc. S/2002/950 (Aug. 23, 2002).

²³⁷ Comunicado No. 081 del Ministerio de Relaciones Exteriores de Colombia, Bogotá (Mar. 2, 2008) (on file with author).

²³⁸ See, e.g., Ecuador Seeks to Censure Colombia, BBC News (Mar. 5, 2003), at http://news.bbc.co.uk/2/hi/americas/7278484.stm; Colombia Raid “Must Be Condemned,” BBC News (Mar. 6, 2003), at http://news.bbc.co.uk/2/hi/americas/7280590.stm; Romero, Simon, Crisis at Colombia Border Spills into Diplomatic Realm, N.Y. Times, Mar. 4, 2008, at A3 Google Scholar; Letter Dated 3 March 2008 from the Chargé d’Affaires A.I. of the Permanent Mission of Ecuador to the United Nations Addressed to the President of the Security Council, UN Doc. S/2008/146 (2008).

²³⁹ Rio Group, Declaration of the Heads of State and Government of the Rio Group on the Recent Events Between Ecuador and Colombia (Mar. 7, 2008) (Annex 2 to the Report of the OAS Commission That Visited Ecuador and Colombia, Mar. 16, 2008, OAS Doc. OEA/Ser.F/II.25, RC.25/doc.7/08); Organization of American States, Resolution of the Twenty-Fifth Meeting of Consultation of Ministers of Foreign Affairs, Mar. 17, 2008, OAS Doc. OEA/Ser.F/iI.25, RC.25/RES.1/08 rev. 1 (denouncing the operation as a violation of both Articles 19 and 21 of the OAS Charter). Both documents are available at http://www.oas.org/consejo/MEETINGS%20OF%20CONSULTATION/XXV%20meeting%20cosulation%20March%2017%2008.asp.

²⁴⁰ Corten, supra note 11, at 858.

²⁴¹ The present author believes that the United States’ interpretation of the right of self-defense, at least in this context, verges on stretching criteria for necessity, proportionality, and armed attack to the point of absurdity, yet that is not the subject of the present essay.

²⁴² See supra note 18.

²⁴³ Other than self-defense or the consent of the territorial state.

²⁴⁴ It is striking that Corten, in relation to the failed U.S. attempt to rescue the Tehran hostages, stresses that both states and scholars discussed the operation “by reference to self-defence and not to necessity or to counter measures.” According to Corten, “it is significant that the concept of self-defence is preferentially construed very broadly rather than having recourse to some other justification which, if admitted, might have proved a more credible legal argument.” Corten, supra note 2, at 228.

²⁴⁵ See Ruys, Tom, The ‘Protection of Nationals’ Doctrine Revisited, 13 J. Conflict & Security L. 233 (2008)CrossRef Google Scholar.

²⁴⁶ Corten refers to the noncombatant evacuation operation in Liberiain 1990 in which some three hundred U.S. marines were involved. The operation took place at a time when fighting had broken out between government and rebel forces. Although the operation was notified in advance to the warring parties, it apparently took place without prior consent of the Liberian authorities. See Corten, supra note 2, at 88 (with references).

²⁴⁷ See Marston, Geoffrey, Armed Intervention in the 1956 Suez Crisis: The Legal Advice Tendered to the British Government, 37 Int’l & Comp. L.Q. 773, 800–01 (1988)CrossRef Google Scholar; UN SCOR, 11th Sess., 749th mtg., para. 141, UN Doc. S/PV.749 (Oct. 30, 1956). Several states nonetheless took a negative stance to the intervention. See UN SCOR, 11th Sess., 750th mtg., UN Doc. S/PV.750 (Oct. 30, 1956); UN SCOR, 11th Sess., 751st mtg., UN Doc. S/PV. 751 (Oct. 31, 1956) (see, for example, the opinions expressed by Egypt, Iran, the Soviet Union, and Yugoslavia).

²⁴⁸ Letter Dated 14 May 1975 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/11689 (May 15, 1975) (stressing that the original seizure of the vessel “involved a clear-cut illegal use of force” and therefore that the United States had taken “appropriate measures under Article 51 of the United Nations Charter”). Note that a number of states labeled the forcible recovery of the Mayaguez as a narmed aggression. UN SCOR 31 st Sess., 1941th mtg., UN Doc. S/PV. 1941 (July 12, 1976). For an extensive analysis of the case (and shedding doubt on the legality of the operation), see Paust, Jordan J., The Seizure and Recovery of the Mayaguez, 85 Yale L.J. 774–806 (1975–76)Google Scholar; Paust, Jordan J., More Revelations About Mayaguez (and Its Secret Cargo), 4 B.C. Int’l & Comp. L. Rev. 61 (1981)Google Scholar.

²⁴⁹ UN SCOR, 31st Sess., 1939th mtg., para. 121, UN Doc. S/PV.1939 (July 9, 1976).

²⁵⁰ See id.; UN SCOR, 31st Sess., 1940th mtg., UN Doc. S/PV.1940 (July 12, 1976); UN SCOR, 31st Sess., 1941st mtg., UN Doc. S/PV.1941 (July 12, 1976); UN SCOR, 31st Sess., 1942d mtg., UN Doc.S/PV.1942(July 13, 1976); UN SCOR, 31st Sess., 1943d mtg., UN Doc. S/PV.1943 (July 14, 1976) (see, for example, the statements of China, India, Kenya, and the Soviet Union). Note that the Israeli operation not only ended freeing the hostages but also resulted in the killing of several Ugandan soldiers and the destruction of several Ugandan aircraft. A number of states, such as France, Japan, and Sweden, adopted a more ambiguous position. Germany and the United Kingdom simply expressed relief at the successful ending of the rescue attempt.

²⁵¹ UN SCOR, 31st Sess., 1941st mtg., para. 77, UN Doc. S/PV.1941 (July 12, 1976).

²⁵² See, in particular, Letter Dated 25 April 1980 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/13908 (1980), and Note Verbale Dated 28 April 1980 from the Permanent Representative of Iran to the United Nations Addressed to the Secretary-General, UN Doc. S/13915 (Apr. 29, 1980).See also Corten, supra note 2, at 74. For the reactions of third states, see Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity 47–48 (1985).

²⁵³ Australian Government Department of Defence, Noncombatant Evacuation Operations, ch.4 (“Legal Considerations”), para. 4.46 (Operations Series, Australian Defence Doctrine Publication 3.10) (2d ed. 2011); United Kingdom Ministry of Defence, Joint Doctrine Publication 3-51: Non-combatant Evacuation Operations, Annex 3B (“Legal issues and Rules of Engagement”), at 3B-1 (2d. ed. 2013), at https://www.gov.uk/government/publications/jdp-3-51-non-combatant-evacuation-operations.

²⁵⁴ This provision is taken from the Working Paper Submitted by Algeria and the United Republic of Tanzania, UN Doc. A/AC.188/L.7 (Aug. 12, 1977). Consider also the amended version submitted by Syria, Working Paper Presented by the Syrian Arab Republic Amending the Working Paper Presented by Algeria, Guinea, Libyan Arab Jamahiriya, Nigeria and the United Republic of Tanzania, UN Doc. A/AC.188/L.11 (Aug. 16, 1977).

²⁵⁵ Rosenstock, Robert, International Convention Against the Taking of Hostages: Another International Community Step Against Terrorism, 9 Denv. J. Int’l L. & Pol’y 169, 186 (1980)Google Scholar.

²⁵⁶ John R. Dugard (Special Rapporteur), First Report on Diplomatic Protection, para. 46, UN Doc. A/CN.4/506 (2000).

²⁵⁷ UN GAOR, 55th Sess., 19th mtg., paras. 30 (China), 56 (Poland), UN Doc. A/C.6/55/SR.19 (Nov. 13, 2000); UN GAOR, 55th Sess., 20th mtg., paras. 16 (Slovenia), 47 (Mexico), 52 (Argentina), 78 (Venezuela), 85 (Iran), 90–91 (Iraq), UN Doc. A/C.6/SR.20 (Nov. 14, 2000); UNGAOR, 55th Sess., 21st mtg., para.7 (Jordan), UN Doc. A/C.6/55/SR.21 (Nov. 14, 2000); UN GAOR, 55th Sess., 23d mtg., para. 5 (Colombia, on behalf of the Rio Group), UN Doc.A/C.6/55/SR.23 (Nov. 14, 2000); UNGAOR 55th Sess., 24th mtg., paras. 55 (Burkina Faso), 71 (Cuba), UN Doc. A/C.6/55/SR.24 (Nov. 16, 2000).

²⁵⁸ Germany, for instance, “[w]ithout ruling out any use of force in the context of diplomatic protection,...doubted whether a discussion of the use of force was warranted in[this] context.” UNGAOR, 55th Sess., 19th mtg., para. 64, UN Doc. A/C.6/55/SR.19 (Nov. 13, 2000).

²⁵⁹ Draft Articles on Diplomatic Protection with Commentaries, [2006] 2 Y.B. Int’l L. Comm’n, pt. 2, at 79.

²⁶⁰ See supra note 135.

²⁶¹ See Convention on International Aviation, Annex 2 (“Rules of the Air”), sec. 3.8 (“Interception”);id., Appendix 2 (“Interception of Civil Aircraft”). The appendix is contained in the annex, available at http://www.icao.int/Meetings/anconf12/Document%20Archive/an02_cons%5B1%5D.pdf.

²⁶² Soviet forces apparently mistook the aircraft for a spy plane.

²⁶³ See Geiß, Robin, Civil Aircraft as Weapons of Large-Scale Destruction: Countermeasures, Article 3bis of the Chicago Convention, and the Newly Adopted German “Luftsicherheitsgesetz,” 27 Mich. J. Int’l L. 227 (2005)Google Scholar; Fitzgerald, Gerald F., The Use of Force Against Civil Aircraft: The Aftermath of the KAL Flight 007 Incident, 1984 Canadian Y. B. Int’L L. 291 (1984)Google Scholar; Foont, Brian E., Shooting Down Civilian Aircraft: Is There an International Law?, 72 J. Air L. & Com. 695 (2007)Google Scholar.

²⁶⁴ Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 112, UN Doc. A/CONF.144/28/Rev.1 (1990) (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba Aug. 27–Sept. 7, 1990).

²⁶⁵ M/V “Saiga” (No. 2) (St. Vincent v. Guinea), ITLOS Case No. 2, Merits, paras. 155–56 (July 1, 1999) (“[I]nternational law... requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.... These principles have been followed over the years in law enforcement operations at sea.”).

²⁶⁶ Corten, supra note 2, at 56. On the relation between the two frameworks, see Guilfoyle, Douglas, Interdicting Vessels to Enforce the Common Interest: Maritime Countermeasures and the Use of Force, 56 Int’l & Comp. L.Q. 69, 81 (2007)CrossRef Google Scholar.

²⁶⁷ The International Tribunal for the Law of the Sea effectively granted the request for provisional measures. The further treatment of the case is currently pending before an arbitral tribunal. See “Arctic Sunrise” (Neth. v. Russ.), ITLOS Case No. 22, Provisional Measures (Nov. 22, 2013); Douglas Guilfoyle & Miles, Cameron A., Provisional Measures and the MV Arctic Sunrise, 108 AJIL 271 (2014)Google Scholar.

²⁶⁸ Crusader, Red (Den. v. UK), Commission of Enquiry, 35 ILR 485 (1962)Google Scholar.

²⁶⁹ S.S. “I’m Alone” (UK (for Canada) v. U.S.), 3 R.I.A.A. 1609, 1617 (1935).

²⁷⁰ O’Connell concludes that force of this type is associated with law enforcement and that it does not trigger Article 2(4). O’Connell, supra note 3, at 102, 104.

²⁷¹ See Corten, supra note 2, at 58–59 (with references). The British operation inspired the adoption of a specific treaty sanctioning enforcement action for purposes of avoiding pollution (International Convention on the Intervention in the High Seas, Nov. 29, 1969, 970 UNTS 211), as well as a specific article (Article 221) to that end in UNCLOS.

²⁷² See supra note 216.

²⁷³ As mentioned above, Soviet forces apparently mistook the aircraft for a spy plane.

²⁷⁴ See, e.g., Letter Dated 1September 1983 from the Permanent Observer of the Republic of Korea to the United Nations Addressed to the President of the Security Council, UN Doc. S/15948 (1983); UN SCOR, 38th Sess., 2470th mtg., UN Doc. S/PV.2470 (Sept. 2, 1983); UN SCOR, 38th Sess., 2471st mtg., UN Doc. S/PV.2471 (Sept. 6, 1983); UN SCOR, 38th Sess., 2472d mtg., UN Doc. S/PV.2472 (Sept. 6, 1983); UN SCOR, 38th Sess., 2473d mtg., UN Doc. S/PV.2473 (Sept. 7, 1983); UN SCOR, 38th Sess., 2474th mtg., UN Doc. S/PV.2474 (Sept. 8, 1983); UN SCOR, 38th Sess., 2476th mtg., UN Doc. S/PV.2476 (Sept. 12, 1983); 1983 U.N.Y.B. 218–23. A draft resolution stated that “such use of armed force against international civil aviation is incompatible with the norms governing international behavior and elementary considerations of humanity.”UNDoc. S/15966/Rev.1 (Sept. 12, 1983). Nine council members voted in favor; three abstained; and two voted against. Due to a Soviet veto, the draft was not adopted.

²⁷⁵ See 1996 U.N.Y.B. 196–98; UN SCOR, 51st Sess., 3683d mtg., UN Doc. S/PV.3683 (July 26, 1996); UN SCOR, 51st Sess., 3684th mtg., UN Doc. S/PV.3684 (July 29, 1996). An International Civil Aviation Organization report found the events to have taken place outside Cuban territorial airspace. See International Civil Aviation Organization, The Shooting Down of Two U.S.-Registered Private Civil Aircraft by Cuban Military Aircraft on 24 February 1996, UN Doc. S/1996/509, Appendix B (July 1, 1996).

²⁷⁶ See, e.g., UN SCOR, 51st Sess., 3683d mtg.at2–3 (United States), 15–16 (United Kingdom), 17 (Germany), 18 (Guinea-Bissau), UN Doc. S/PV.3683 (July 26, 1996).

²⁷⁷ See, e.g., id. at 13 (Colombia), 14 (Laos), 15 (Vietnam), 17 (Botswana), 18 (Honduras), 19 (Poland, Korea, Indonesia), 22 (Italy), 23 (Russia).

²⁷⁸ SC Res. 1067 (July 26, 1996); see also Statement by the President of the Security Council, UN Doc. S/PRST/1996/9 (Feb. 27, 1996).

²⁷⁹ Iran decried the act as a violation of UN Charter Article 2(4), whereas the United States relied on the right of self-defense. See Letter Dated 6 July 1988 from the Acting Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, supra note 109; Memorial of the Islamic Republic of Iran, supra note 111, para. 4.46 (Iran claiming that the shooting violated both Article 3 bis of the Chicago Convention and the prohibition on the use of force).

²⁸⁰ Letter Dated 14 May 1975 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, supra note 248.

²⁸¹ See 12 Keesing’s Contemp. Archives, at 16690 (1959); Brownlie, supra note 115, at 305.

²⁸² The waters around Iceland were traditionally important fishing grounds for German fishermen.

²⁸³ Fisheries Jurisdiction (Ger. v. Ice.), 1974 ICJ Rep. 175, paras. 71–76 (July 25). The court merely held that Iceland was not entitled to unilaterally exclude German fishing vessels from the areas concerned or to unilaterally impose restrictions on their activities.

²⁸⁴ The dispute was part of the broader, so-called Turbot War, in which Canada claimed that EU ships were illegally over fishing Greenland halibut, or turbot, just outside Canada’s EEZ.

²⁸⁵ Fisheries Jurisdiction (Spain v. Can.), 1998 ICJ Rep. 432, para. 84 (Dec. 4).

²⁸⁶ Guyana v. Suriname, supra note 13.

²⁸⁷ Id., para. 441.

²⁸⁸ Id., para. 445.

²⁸⁹ See, e.g., Guilfoyle, Douglas, Shipping Interdiction and the Law of the Sea 277 (2009)Google Scholar.

²⁹⁰ See von Heinegg, Wolff Heintschel, Maritime Interception/Interdiction, in The Handbook of the International Law of Military Operations 390 (Gill, Terry Douglas & Fleck, Dieter eds., 2010)Google Scholar.

²⁹¹ See, for example, the list of legal bases for maritime interception in the the Commander’s Handbook on the Law of Naval Operations, supra note 83, sec. 4.4.4.

²⁹² Definition of Aggression, supra note 23.

²⁹³ North Atlantic Treaty, Apr. 4, 1949, 34 UNTS 243.

²⁹⁴ Oil Platforms, supra note 41, paras. 64, 72; see also, e.g., Ochoa-Ruiz, Natalia & Salamanca-Aguado, Esther, Exploring the Limits of International Law Relating to the Use of Force in Self-Defence, 16 Eur. J. Int’l L. 499, 513 (2005)CrossRef Google Scholar.

²⁹⁵ The Commander’s Handbook on the Law of Naval Operations, supra note 83, secs. 3–10.

²⁹⁶ Guyana v. Suriname, supra note 13.

²⁹⁷ Id., para. 444.

²⁹⁸ While it is on occasion suggested that attacks against nationals abroad cannot be regarded as armed attacks in the sense of UN Charter Article 51, it should be noted, for instance, that the definition of aggression in Article 9 of the 1947 Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, 21 UNTS 77, refers to the “unprovoked armed attack by a State against the territory, the people, or the land, sea or air forces of another State” (emphasis added).

²⁹⁹ In relation to the shooting of two civilian aircraft by Cuban forces in 1996, for instance, Cuba framed the incident as part of the broader dispute between Cuba and the United States, stressing, among other things, that the United States failed to take action against recurrent aerial incursions into Cuba departing from the United States. See UN SCOR, 51st Sess., 3683d mtg. at 4–13, UN Doc. S/PV.3683 (July 26, 1996). The United States, however, refused to be dragged into a broader political discussion.

³⁰⁰ Several of these factors also surface in the analyses in Corten, supra note 2, at 91–92, and Jimenez Kwast, supra note 80, at 72–89.

³⁰¹ For example, Article 110 provides:

Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship... is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting...; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

³⁰² Or forcible action against merchant vessels in the EEZ of another state.

³⁰³ Corten, supra note 11, at 856.

³⁰⁴ Consider, for instance, the following blog post concerning the threat of U.S. air strikes against Syria in the summer of 2013: “it is sometimes argued... that there are times when justifiable military force below a certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.” Joyner, Dan, Now What? Responding to Alleged Chemical Weapons Attack in Syria, Arms Control Law (Aug. 26, 2013) Google Scholar, at http://armscontrollaw.com/2013/08/23/now-what-responding-to-alleged-chemical-weapons-attack-in-syria/.

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