1 These produced the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter (GA Res. 2625 (XXV) (1970)) and the Definition of Aggression (annexed to GA Res. 3314 (XXIX) (1974)).

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 123 and 146–47, paras. 238 and 292(4), reprinted in 25 ILM 1023 (1986).

3 1986 ICJ Rep. at 123 and 146–47, paras. 238 and 292(4) and (6).

4 Id. at 103–04 and 119, paras. 195 and 230.

5 Id. at 103–04 and 126–27, paras. 195 and 247.

6 Id. at 86, para. 160.

7 Id. at 87, 119–20 and 123, paras. 164, 231 and 238.

8 Id. at 123 and 127, paras. 238 and 249.

9 Id. at 103–04 and 126–27, paras. 195 and 247.

10 Id. at 127 and 110, paras. 249 and 210.

11 Id. at 110–11 and 127, paras. 211 and 249.

12 Id. at 110, para. 210.

13 Id. at 127, para. 249.

14 I leave aside the trivial speculation that the Charter drafters intended in Article 51 to exclude barehanded—i.e., unarmed—attacks.

15 In paragraph 195, 1986 ICJ Rep. at 103, the Court cites the Definition of Aggression as evidence of an alleged “general agreement on the nature of the acts which can be treated as constituting armed attacks.” If so, the definition leads to a conclusion precisely contrary to the Court’s. It is of course a definition not of “armed attack” but of the concept of “aggression,” used in the Charter as a basis for invoking the Charter’s severest sanctions. But it is relevant to the concepts of “armed attack” and “self-defense” in that it would presumably be absurd to suggest that any act that (according to the definition) the Security Council might properly find to qualify as an “aggression” might not give rise at least to the right of self-defense. This much the Court apparently agrees with. But the Court seems to ignore Articles 2 and 3—the generic definition itself—the effect of which is that any act of armed force in violation of the Charter (not “any armed attack”) may constitute an aggression and is prima facie to be so regarded (and thus, a fortiori, may give rise to a right of self-defense). In Article 3, the definition illustratively enumerates some seven acts that the Council might find to constitute “aggression.” But this list is not exhaustive even of acts constituting “aggression” (see Article 4), and certainly not of the broader classes of acts constituting “force” or “armed attack” or justifying the exercise of “self-defense.”

16 First, there is the Court’s muted treatment of certain transborder “military attacks” (by Nicaragua)—a kind of conduct that the Court presumably considers the gravest form of unlawful force—as nevertheless not constituting armed attacks (1986 ICJ Rep. at 87, 119-20 and 123, paras. 164, 231 and 238). This unexplained conclusion presumably must rest on the logically impossible proposition that, being of small consequence in the Court’s view, these particular attacks have somehow ceased to be attacks at all; or it must assume some undisclosed distinction between a “military” attack and an armed one. Then, the Court renders the criterion of “lesser gravity” completely vacuous by its holding as a matter of law that the supply of arms or logistical support to armed forces operating in another’s territory cannot be an “armed attack,” no matter, apparently, how grave in practical effect (id. at 103–04, 119 and 126-27, paras. 195, 230 and 247).

17 These facts are set out and the point forcefully argued by Judge Schwebel in his dissent, id. at 341–45, paras. 162–68.

18 See Rosenstock, The Declaration of Principles of International Law concerning Friendly Relations : A Survey, 65 AJIL 713, 724–25 (1971).

19 Report of the Rapporteur of Committee IV/2, as approved by the Committee, Doc. 933, IV/2/42 (2), 13 UNCIO Docs. 703, 709 (1945).

20 Commenting on possible ways to resolve conflicting interpretations among UN organs, the drafters observed, presciently but with an innocent optimism that has a somewhat forlorn ring in 1986:

Id. at 710.

21 The obvious practical consequences of the latter are explored by Judge Schwebel in his dissent, 1986 ICJ Rep. at 350, para. 177.

22 See, in particular, 1986 ICJ Rep. at 94, para. 176.

23 It might be argued that, if given the chance, the Court could safely contain within the Charter scheme its own tentative contribution to this catalog: “forcible countermeasures,” since it would involve only mini-force in response to mini-attacks, could be subjected to the requirements of necessity and proportionality, and the like. The problem, however, is that the Court is not very likely to be given the chance; the natural tendency of governments is likely to be toward expansion, not containment; and the principle that unilateral force can be used only in self-defense will have been irreparably breached in any event by this unnecessary and obfuscating step.