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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
spectively, shooting down by a fighter of a foreign
state of the unmanned (spy) plane of the
Ministry of Interior of Georgia does without any
doubt constitute a use of armed force against
the Georgian state territory and correspondingly
this constitutes the act of aggression, as
defined by the Article 3 (b) of the 1974 United
Nations General Assembly Resolution.
3.3. Relevance of the Use of
the Right of Self-defense
According to the Article 51 of the United
Nations Charter, a Member of the United Nations
possesses the inherent right of self-defense
if an armed attack occurs against it.
According to the mentioned article, resorting
to armed forces for the purpose of self-defense
is permitted until the Security Council
has taken measures necessary to maintain
international peace and security. In case of
using the right of self-defense, the state is
obliged to immediately report to the Security
Council on the measures taken by it in the
exercise of the right of self-defense. However
it must be mentioned that even though the
armed attack automatically triggers the right
to act contrary to the principle established by
the Article 2(4) of the UN Charter (i.e. the principle
of prohibition of use of force), the violation
of the mentioned paragraph is not always
qualified as an armed attack within the meaning
of the Article 51 of the Charter. 12 An armed
attack, as provided for in the Article 51, is exercised
only when the armed force is used in
a relatively wide scale, inflicting the substantial
outcomes (simple accidents at the state
boundaries, such as for example, crossing by
a border patrol police of a state the border
line of another state will be considered a violation
of Article 2(4), but not an armed attack
within the meaning of the Article 51). 13 It must
be mentioned that according to a Commentary
to the United Nations Charter, the acts of
aggression provided for in the 1974 United
Nations General Assembly Resolution (including
an act envisaged by the above mentioned
Article 3(b)) may be considered as an instance
of an armed attack, as provided for in the Article
51. 14 Correspondingly, if a state uses an
armed force against the territory of another
state, an injured state may claim to use the
right of self-defense as provided for by the
Article 51 of the United Nations Charter.
3.4 Chapter VII of the United Nations
Charter – the Actions with respect to
Threats to the Peace, Breaches of the
Peace and Acts of Aggression (Art. 39-51)
According to the Article 39 of the Unted
Nations Charter, the Security Council shall
determine the existence of any threat to the
peace, breach of the peace, or act of aggression
and shall decide what measures shall be
taken in accordance with Articles 41 and 42,
to restore or maintain international peace and
security.
The Security Council, acting within the
contecxt of the Article 39, when establishing
an act of aggression, uses the definition as
provided for by the UN General Assembly. 15
However, establishing an act of aggression by
the Security Council within the meaning of the
Article 39 represents a political decision and
there have been cases when the Security
Council have not recognized certain short
term armed activities as aggression. 16
In case of establishing a threat to the
peace, breach of the peace and the act of
aggression, in accordance with the Article 41,
the Security Council may decide to undertake
measures not involving the use of armed force
and it may call upon the Members of the United
Nations to apply such measures (for example,
interruption of econoic relations and
of rail, air, sea, and postal communication;
severance of diplomatic relations).
If the measures provided for in Article 41
prove to be inadequate, the Security Council
may, in accordance with the Article 42, take
such action by air, sea, or land forces as may
be necessary to restore international peace
and security.
However, it must also be taken into consideration
that according to the Article 27 of
the United Nations Charter the Security Council
makes a decision by a majority of affirmative
vote (of minimum 9 members), including the
concurring votes of the permanent members
(which icludes the Russian Federation as well).
There is a possibility for Georgia to apply
to the Security Council in order to determine
the act of aggression based on the Article
39, however taking into account that the Rus-
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