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|Justice In International Law, Stephen M. Schwebel|
Texte repris de MiddleEast Facts.org
Justice In International Law
Selected Writing of
(not written in any of his former official capacity)
Stephen M. Schwebel
Judge of International Court of Justice
Judge Schwebel has served on the Court since
What Weight to Conquest? AGGRESSION, COMPLIANCE, AND DEVELOPMENT
In his admirable address of
Secretary Rogers accordingly inferred that, in the absence of such peace and agreement, withdrawal of Israeli forces from Egyptian territory would not be required. That is to say, he appeared to uphold the legality of continued Israeli occupation of Arab territory pending "the establishment of a state of peace between the parties instead of the state of belligerency." (3) In this Secretary Rogers is on sound ground. That ground may well be based on appreciation of the fact that
More questionable, however, is the Secretary of State’s explicit conclusion on a key question of the law and politics of the
Emphasizing the inadmissibility of the acquisition of territory by war (4) and the need to work for a just and lasting peace in which every State in the area can live in security,
Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,
1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the
(i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict; (5)
(ii) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; ..." (6)
It is submitted that the Secretary’s conclusion is open to question on two grounds: first, that it fails to distinguish between aggressive conquest and defensive conquest; second, that it fails to distinguish between the taking of territory which the prior holder held lawfully and that which it held unlawfully. These contentions share common ground.
As a general principle of international law, as that law has been reformed since the League, particularly by the Charter, it is both vital and correct to say that there shall be no weight to conquest, that the acquisition of territory by war is inadmissible. (7) But that principle must be read in particular cases together with other general principles, among them the still more general principle of which it is an application, namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. So read, the distinctions between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held, become no less vital and correct than the central principle itself.
Those distinctions may be summarized as follows: (a) a State acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self defense; (b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense; (c) where the prior holder of territory had seized that territory unlawfully, the State which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
The facts of the June 1967 "Six Day War" demonstrate that
The facts of the 1948 hostilities between the Arab invaders of
If the foregoing conclusions that (a) Israeli action in 1967 was defensive and (b) Arab action in 1948, being aggressive, was inadequate to legalize Egyptian and Jordanian taking of Palestinian territory, are correct, what follows?
It follows that the application of the doctrine of according no weight to conquest requires modification in double measure. In the first place, having regard to the consideration that, as between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt (the UAR indeed has, unlike Jordan, not asserted sovereign title), it follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers’s words, "insubstantial alterations required for mutual security" or more substantial alterations - such as recognition of Israeli sovereignty over the whole of Jerusalem. (8) In the second place, as regards territory bordering Palestine, and under unquestioned Arab sovereignty in 1949 and thereafter, such as Sinai and the Golan Heights, it follows not that no weight shall be given to conquest, but that such weight shall be given to defensive action as is reasonably required to ensure that such Arab territory will not again be used for aggressive purposes against Israel. For example - and this appears to be envisaged both by the Secretary of State’s address and the resolution of the Security Council - free navigation through the Straits of Tiran shall be effectively guaranteed and demilitarized zones shall be established.
The foregoing analysis accords not only with the terms of the United Nations Charter, notably Article 2, paragraph 4, and Article 51, but law and practice as they have developed since the Charter’s conclusion. In point of practice, it is instructive to recall that the Republic of Korea and indeed the United Nations itself have given considerable weight to conquest in Korea, to the extent of that substantial territory north of the 38th parallel from which the aggressor was driven and remains excluded - a territory which, if the full will of the United Nations had prevailed, would have been much larger (indeed, perhaps the whole of North Korea). In point of law, provisions of the Vienna Convention on the Law of Treaties are pertinent. Article 52 provides that: "A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations" - a provision which clearly does not debar conclusion of a treaty where force has been applied, as in self-defense, in accordance with the Charter. And Article 75 provides that: "The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an
The state of the law has been correctly summarized by Elihu Lauterpacht, who points out that
territorial change cannot properly take place as a result of the unlawful use of force. But to omit the word "unlawful" is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor’s charter. For if force can never be used to effect lawful territory change, then, if territory has once changed hands as a result of the unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct. (9)
© Judge Stephen Myron Schwebel *
(1) The text is published in full in New York Times,
(4) The resolution’s use of the word "war" is of interest. The June 1967 hostilities were not marked by a declaration of war. Certain Arab States have regarded themselves at war with
(5) It should be noted that the resolution does not specify "all territories" or "the territories" but "territories." The subparagraph immediately following is, by way of contrast, more comprehensively cast, specifying "all claims or states of belligerency."
(6) Resolution 242 (1967) of
We are not the ones to say where other nations should draw the lines between them that will assure each the greatest security. It is clear, however, that a return to the situation of
At the same time, it should be equally clear that boundaries cannot and should not reflect the weight of conquest. Each change must have a reason which each side, in honest negotiation, can accept as part of a just compromise. (59 Department of State Bulletin 348 )
(7) See, however, Kelsen (2nd ed. by Tucker), Principles of International Law (1967), pp. 420-433.
(8) It should be added that the armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them.
(9) Elihu Lauterpacht,
* Since 1947 Stephen M. Schwebel has written more than 100 articles, commentaries and book reviews in legal and other periodicals and in the press. This volume republishes 36 of his legal articles and commentaries of continuing interest. The first Part treats aspects of the capacity and performance of the International Court of Justice. The second addresses aspects of international arbitration. The third examines problems of the United Nations, especially of the authority of the Secretary-General, the character of the Secretariat, and financial apportionment. The fourth deals with questions of international contracts and taking of foreign property interests. The fifth discusses diverse aspects of the development of international law and particularly considers the central problem of international law, the unlawful use of force. This collection does not include Judge Schwebel’s judicial opinions, nor (with one exception) papers written in his former official capacities as a legal officer of the US Department of State or as a special rapporteur of the International Law Commission of the United Nations. Together with his unofficial writings, his judicial opinions as of July 1993 are cataloged in the list of publications with which this volume concludes.
Justice in international law: selected writings of Judge Stephen M. Schwebel
Par Stephen Myron Schwebel
Publié par Cambridge University Press, 1994
ISBN 0521462843, 9780521462846
Mis en ligne le 7 juin 2009, par