Suez Canal

Resort to War and the Use of Force



1. We as signatories of the Pact of Paris 1928 (the Kellogg Briand Pact)

(a)condemned records to war for the resolution of international
controversies and renounced it as an instrument of national policy in our relations with other signatories, of whom Egypt was one.

(b)agreed that the settlement or solution all disputes between the parties to the pact of whatever nature or origin should never be sought except by pacific means.


2.If the Suez canal situation is to be regarded, as we think it must as an international controversy, we have thus condemned recourse to war for its solution. We have renounced war as an instrument of national policy in our relations with the other signatories. Where as here international rights are threatened, it may be possible to argue that resort to war by some of the nations affected by the threat, to secure their rights would not be an instrument of national policy. If we alone resorted to war to preserve our rights, and the rights possessed of other nations, we should in my view be using war as an instrument of national policy. It would not cease to be an instrument of national policy if other interested states joined with us.

3. However this may be, we have bound ourselves by the second part of the pact only to seek a solution of disputes of every kind whether relating to international rights or rights possessed only by one nationby pacific means. Having regard to the interpretation put on the Covenant of the League of Nations, ‘pacific means’ includes the use of force, reprisals etc falling short of war.

4. The Charter of the United Nations does not use the expression ‘resort to war’ but refers to the use or threat of force. The change of language from that used in the Covenant is significant.
	By Article 2(3) we are pledged to settle all international disputes by peaceful means in such a manner that international peace and security and justice are not endangered and by article 2(4) we have bound ourselves to refrain from the threat or use of force against the territorial integrity or political independence of any state.
	The only qualification of these articles is in article 51 which states that nothing in the Charter ‘shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations. While in the view of some this article only permits the use of force in self defence in the event of an armed attack, having regard to the events which led to the inclusion of this article in the Charter, we think it should not be given such a narrow interpretation. We think Professor Waldock was right when he said “It would be a misreading of the whole intention of Article 51 to interpret it by mere implication as forbidding forcible self defence in resistance to an illegal use of force not constituting an ‘armed attack’.5. In our view we cannot without infringing the Charter threaten or use force save in self defence.

6. Legitimate self defence involving the use of force has the f[…] requirements
	(a) An actual infringement or threatened infringement of the rights of the defending state
	(b) a failure or inability on the part of the other state to use its own legal powers to stop or prevent the infringement
	(c) Acts of self defence strictly confined to the object of stopping or preventing the infringement and reasonably proportionate to what is required for achieving this object.

6. The threat or use of force in self defence is legitimate in affirmation of rights which have been illegally and forcibly denied, but the acts of self defence must be strictly confined to the object of stopping or preventing the infringement and reasonably proportionate to what is required for achieving this object. We could not for instance justify the bombing of Egypt as self defence if a British ship was prevented from going through the canal.

7. It is to be observed that not every breach of an international obligation will justify the threat or use of force in self defence. There must be the use of threat of force in the denial of the right.

8. At present President Nasser does not appear to us to have used or threatened force which would justify the threat or use of force in self defence. Whether or not he is to be regarded as an aggressorunder the Charter, we can only use or threaten force in self defence, where for instance and right has been illegally and forcibly denied to us.
	A breach of a treaty unaccompanied by the use or threat of force would not entitle us to use or threaten force in self defence.

9. Professor Waldock has stated that the Charter has taken away altogether the power of a state to settle a dispute unilaterally by force and remain within the law. But at the same time it has transferred to a defendant state a power of settling a dispute unilaterally by refusing to allow the claim to be adjudicated. As he says “Clearly a law which prohibits resort to force without providing a legitimate claimant with adequate alternative means of obtaining redress contains the seeds of trouble.

10. We agree with this but it may well be that some future action of President Nasser will warrant the use of force without breach of the provisions of the Charter.