5.4 THE BREACH OF INTERNATIONAL AGREEMENTS, etc.

5.4.1 Article 2 of the Charter of the United Nations 1945

“Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. 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. “ (my emphasis).

The full text of the Preamble to and Part 1 of the Charter is set out in Background Document 004

In so far as the Crown chooses, in the exercise of its undoubted prerogative powers, to enter into obligations and duties, as between it and other nation states in the international arena, by the means of the concluding and ratifying of any of the many and various treaties, agreements, accords, protocols etc., that is a matter for it and those other states party to those agreements, as a matter of international conventional law. In deference to the doctrine of the “separation of powers”, however, the Crown cannot legislate for or over the subject, otherwise than with the advice and consent of Parliament, by an Act of the Sovereign in Parliament Assembled. Such is an sine qua non of the constitutional settlement.

Accordingly, any such international treaty obligations cannot and will not be made or found binding upon individual subjects or servants of the Crown, unless and until the same be incorporated into the domestic law by means of an incorporating statute. Furthermore, if the terms and provisions of the said statute are found to be inconsistent or incompatible with any provision or element of the conventional law, then so far at least as the domestic courts are concerned the statue shall always prevail, as representing the supreme law of the land. Such is trite law not requiring citation of precedent authority.

However, the provisions of the above quoted articles of the Charter of the United Nations are not invoked for the purpose of attempting to thereby enforce a conventional law duty or obligation, which has not received any statutory incorporation, upon the natural individual personalities of the accused persons (interested parties), either directly or indirectly, and by reference to the second limb of the definition of a ‘crime against peace’, in the Nuremberg sense (as to which see above). To do so would be to attempt a thinly veiled breach of the above explained constitutional prohibition on the adoption of conventional law.

Instead, the rule on the prohibition on the threat or use of force in the conduct of lawful international relations, as therein set out in 1945, were it in any doubt at the time, which I dispute, has in any event since received the necessary further universal approbation and confirmation amongst the opinio juris of the community of nations, to have become declaratory of an established principle of underlying customary law; and it is upon the basis of that rule of customary law that the present Claimant relies, of which those Charter provisions are merely declaratory, rather than invoking them either directly or indirectly without the benefit of any statutory incorporation.

5.4.2 General Assembly Resolution 2625 (XXV)(1970)

Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Once again, as with the ‘Declaration on the Definition of Aggression’ (above), the General Assembly of the United Nations, appreciating and recognising the importance and need for a clear expression by the community nations on the principles of international law, as set out in Article 2 of the Charter, regarding the issue of friendly relations and co-operation among states, it resolved, on the recommendation of the Sixth Committee, to create a Special Committee to codify and formulate a Declaration on those principles (as to which see GA Res 2533 XXIV Assembly). The Resolution, incorporating the Declaration thereby made, by way of an Annex thereto, was adopted on 24 October, 1970 without dissension.

For a copy of the full text of this seminal resolution, and the Declaration annexed thereto, the reader should now refer to Background Document RLM 005. It is sufficient for present purposes however to set out below only the following pertinent paragraphs.

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"1. Every State shall refrain in its 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. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. A war of aggression constitutes a crime against the peace for which there is responsibility under international law.

...

2. Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered. States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute. ... "

5.4.3 Judgement of the World Court on the value of Resolution 2625.

In the ”case concerning military and paramilitary activities against Nicaragua”

(Nicaragua v. the United States) (1986 No.70) before the International Court of Justice the court held in judgement as follows:

“ Para 188. ... The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention (on the use of force). This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. The principle of the non use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rules (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter. “

5.4.4 The Kellogg-Briand Pact 1928 (The Treaty of Paris)

It is avowedly to be hoped that, the above collected sources are more than sufficient to establish beyond any question of doubt, that there now exists in customary international law a rule prohibiting the resort to the use of force in the conduct of relations between sovereign states, of which rule the principles of behaviour as set out in Article 2 of the Charter of the United Nations are declaratory, and furthermore that any breach of such a rule, not justified by international law (eg in self-defence) amounts to and involves the commission of an act of international aggression which is a crime under that customary law.

However, and for the sake of completeness, and as a reflection on the length of time for which such a principle of international behaviour has received the affirmation of the civilised world, it is worth also recalling the fundamental provisions, as set out in the infamous Kellogg-Briand Pact 1928 (the so-called “Treaty of Paris”), and which formed so much of the basis of the judgement of the Nuremberg Tribunal, in holding that such principles were, even as long ago as the start of the Second World War, declaratory of a developed fundamental customary norm of international law prohibiting resort to aggression in the conduct of relations between states.

In June, 1927, Aristide Briand, foreign minister of France, proposed to the U.S. government a treaty outlawing war between the two countries (something especially worthy of recall given contemporary events and attitudes !). Frank B. Kellogg , the U.S. Secretary of State, returned a proposal for a general pact against war, and after prolonged negotiations the Pact of Paris was signed by 15 nations the following year—Australia, Belgium, Canada, Czechoslovakia, France, Germany, Great Britain, India, the Irish Free State, Italy, Japan, New Zealand, Poland, South Africa, and the United States.

“PREAMBLE: Deeply sensible of their solemn duty to promote the welfare of mankind;

Persuaded that the time has, come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated;

Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war a should be denied the benefits furnished by this Treaty;

Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavour and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting the civilised nations of the world in a common renunciation of war as an instrument of their national policy;

Have decided to conclude a Treaty and for that purpose have appointed as their respective

ARTICLEI: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

...“

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