Contents - Constitutional Court of Georgia

174
Michael J. Glennon
SWGCA’s definition? What falls within the meaning of “territorial integrity” and “political independence”?
Is use of armed force permissible that is not directed at territorial occupation or undermining
governmental autonomy or survival? What about a use of armed force against nationals
or members of the armed forces of a state who are outside the territory of that state? Or against
unmanned facilities such as satellites, dams, power grids, weapons facilities or laboratories?
b. Sovereignty
The second change in the formulation of Article 2(4)—the insertion of the word “sovereignty”
into the definition—expands the scope of the prohibition against use of force in Article 2(4), but
its meaning is unclear. What falls within a use of armed force against the “sovereignty” of a state?
How, specifically, does this term enlarge the category of prohibited uses of armed force? What use
of armed force would not be “against the sovereignty, territorial integrity or political independence
of another State” but would be “inconsistent with the Charter of the United Nations”? Is the use of
armed force by a state without the approval of the Security Council, when aimed at halting intrastate
genocide, for example, consistent with the Charter?
c. Relationship to Resolution 3314
The SWGCA’s definition provides that the specified acts “shall, in accordance with” Resolution
33l4, qualify as acts of aggression. The question thus arises whether the provisions of Resolution
33l4 that are not included within the SWGCA’s definition nonetheless govern the application of
those provisions that are included. 151 Is Resolution 33l4 in effect incorporated by reference? 152
If so, then “[t]he acts enumerated [in paragraph 2(a) to (g)] are not exhaustive, and the Security
Council may determine that other acts constitute aggression under the provisions of the Charter.” 153
If so, then “[n]othing in this Definition shall be construed as in any way enlarging or diminishing the
scope of the Charter, including its provisions concerning cases in which the use of force is lawful.” 154
In other words, the scope of the SWGCA’s recommended definition of aggression—notwithstanding
the divergent wording—is identical to coverage of the definition included in the Charter. The SWG-
CA’s definition is coterminous with that of the Charter and neither adds nor detracts from it. And,
most importantly for due process purposes, “if the abstract definition in the general clause [is] self-
151 Article 4 of the definition of aggression in Resolution 33l4 itself provides that the acts enumerated therein “are not exhaustive and the
Security Council may determine that other acts constitute aggression under the provisions of the Charter.” Resolution 33l4, supra note
43, Annex art. 4. However, no such disclaimer is included in the SWGCA’s definition. See supra text accompanying note 66.
152 As previously noted, an additional problem would then be created by the fact that Resolution 33l4, in contrast to the SWGCA definition,
criminalizes only a “war” of aggression, not an “act” of aggression. See supra note 49.
153 Resolution 33l4, supra note 43, Annex art. 4.
154 Id. art. 6.