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§ 3.3. Understanding of the right to self-defence in an international law science

According to installations of the Charter of the United Nations lawful cases of application of force in the international relations are defined, that, hence, assumes, that in the international relations under the United Nations Charter it is necessary to consider all other cases of application of force illegal.

As criteria for such distinction the purposes of the United Nations fixed in the Charter of the United Nations act, first of all. The body estimating concrete cases of application of force in the international relations as lawful or wrongful, is the UN Security Council operating on a basis and according to the Charter of the United Nations. It that circumstance speaks, that in the United Nations Charter terms "lawful" and "illegal" application of force are not used. However these terms are used in those accepted HECTARES of the United Nations documents in which «principles and other positions fixed in the Charter of the United Nations, in particular, in the Declaration on principles of international law of 1970 and the resolution of HECTARES of the United Nations are interpreted aggression definition» 1974

Powers of the UN Security Council according to the situations menacing to the international safety, and acceptance of corresponding measures, including use of the armed force against infringers of instructions of the Charter of the United Nations, are fixed in gl. VII

The United Nations charter under the name «Actions concerning threat to the world, infringements of the world and aggression certificates».

It is necessary to pay attention to item 51 At stava the United Nations with which comes to an end gl. VII Charter of the United Nations. In it it is told: «the Present Charter at all does not mention an inalienable law on individual or collective self-defence if there will be an armed attack on the Member of the Organization, until then while the Security council will not accept the measures necessary for maintenance of an international peace and safety. The measures accepted by Members of the Organization at realisation of this right to self-defence, should be immediately informed Security council and should not mention powers at all and responsibility of Security council, according to the present Charter, concerning undertaking at any time such actions as what he will consider necessary for maintenance or international peace and safety restoration».

As follows from quoted position, in item 51 of the Charter of the United Nations the right of the states on individual and collective self-defence is fixed. However in positive international law there is no position which would contain an explanation of key positions of the right to self-defence [453]. In this connection there is actual a studying doktrinalnogo understanding of the right to self-defence and the account of corresponding practice, first of all, the UN Security Council and United Nations International court.

The arrangement of item 51 in the chapter of VII Charter of the United Nations specifies that positions of given article should be interpreted in a context of all system of the collective security fixed in the Charter of the United Nations which establishes, that collective enforcement actions, including use of armed forces against the state for the purpose of maintenance or international peace and safety restoration, can be undertaken only under the decision of the UN Security Council in case of fulfilment by this state of the actions falling under gl.

VII Charter of the United Nations.

For correct understanding of positions of item 51 of the Charter of the United Nations in a context of system of collective security it is necessary to consider its politiko-legal bases, namely: item 51 of the Charter of the United Nations cannot be applied in mutual relations between permanent members SB the United Nations or in a case when one contestant is permanent member SB the United Nations (about what was spoken above). In the latter case theoretically permanent member SB the United Nations can resort to self-defence, however the system of collective security cannot be effectively involved for the obvious reasons. In other words, situations of "armed attack" of one state which is not permanent member SB the United Nations fall under individual self-defence, on other state which also is not permanent member SB the United Nations only. Thus individual self-defence of such states is admissible in strictly limited frameworks and limits and until mechanisms of system of collective security will be involved.

According to item 51 of the Charter of the United Nations, the right of the states to self-defence is lawful application by the force state in reply to wrongful application of force against it from other state [454]. In this connection we will remind, that in the past the certificate of declaration of war was widely used by the states as the tool of legalisation of application of armed forces against other state. Moreover, this tool in 1907 has received contractual fastening in the Hague convention on opening of military actions [455]. However, with fastening in positive international law so-called «chronological criterion» aggression definitions when an aggressor the party is considered, the first made armed attack, had been deprived the international legal bases an element of legitimacy of the certificate of declaration of war.

In this context it is necessary to pay attention, that is frequent concepts «the armed intervention» and the "aggression", being by one-serial concepts, of works of the western authors are used separately, that creates impression about their distinction and independent value. Such approach promotes, in particular, to concept "legalisation" to "humanitarian intervention» [456], on the substance of being aggression. Unfortunately, and in the report of the Secretary general of the United Nations this "illness" [457] is observed.

The opinion as a whole has affirmed as the western science of international law that the traditional understanding of the right to self-defence originates from «business of Carolina», connected with incident in the American port in 1837 in which the British citizens have arrested and then have destroyed the ship under the name "Carolina" with which help the American citizens made spot-checks in marine belt of Canada. In correspondence between the authorities of the Great Britain and the USA which has followed in this connection incident, the formula offered by the US state secretary and subsequently apprehended authorities of the Great Britain has been designated. It sounded so: « The action, coming under to the justification necessity of self-defence, should be limited by this necessity and occur accurately within the limits of the given necessity »[458]. In the western international legal literature, referring first of all on« business of Carolina », approve about existence of the right to self-defence as usual international law [459]. And some domestic scientists share this opinion. To the told it is necessary to add, that the position fixed in item 51 of the Charter of the United Nations which is quoted above, gives the basis to speak about the right to self-defence as norm of contractual character. The United Nations international court in the decision on business« Nicaragua against the USA »considered the right to self-defence in quality both usual, and contractual mezhdunarodnopravovoj norms [460].

It is necessary to underline, that, despite fixing of the right to self-defence in item 51 of the Charter of the United Nations and a recognition of the granted right International court of the United Nations as norm of usual and contractual character simultaneously, in an international law science different interpretations concerning character of the granted right remain: one scientists are limited to positions of contractual character, approving, that item 51 of the Charter of the United Nations in a context of installations of item 4 of item 2 of the Charter of the United Nations has exhaustive character [461], that, in particular, is confirmed and in the Project of articles about responsibility of the states for international-illegal acts (which analysis contains in paragraph 3.4 of the chapter of III present dissertation); other scientists approve, that the right to self-defence under the item 51 Charters of the United Nations are assumed by armed attack that gives the basis to the suffered state to address to the right to self-defence, however this right is, first of all, "inalienable law" of the sovereign state, it operates only as international legal custom, and, hence, is beyond installation of item 51 of the Charter of the United Nations as contractual norm [462].

The mention in item 51 of the Charter of the United Nations about the state common right on self-defence as "integral" many scientists is apprehended as not legal loading in positive international law. It, in particular, speaks that in conditions nezapreshchenija force applications in the international relations in the past, on the one hand, it would be possible to admit "inherence" of such right at any state, however, on the other hand, it has not been fixed anywhere, even in the Parisian pact of 1928 (though attempts of it were undertaken) that specifies that the granted right was not generated by this moment as the international custom. For acknowledgement of this position the additional argument is resulted: before acceptance of the Charter of the United Nations in the international law and political science doctrine fair or unfair wars which were measured not by international legal measures, and moralnopoliticheskimi were proved by reasons. Hence, these scientists affirms, that for the first time the right of the states to individual self-defence has been established in item 51 of the Charter of the United Nations in a context of the general prohibition of application of the armed force in the international relations and within the limits of definition of lawful basises of its application only in common interests of the states for international peace and safety maintenance. Also the attention that in item 51 of the Charter of the United Nations is a question of interstate mutual relations and that given article does not concern cases of use of the armed force with the colonial people in struggle for the clearing is paid.

Scientists pay attention to following circumstance: if in a context of the separate states the "integral" right to self-defence has not legal loading with reference to collective self-defence of the states the given concept loses absolute sense. Even if to admit, that one state has made armed attack on two states, and that in this case each state - the victim of an attack gets the right to individual self-defence, in practice their right to collective self-defence is reduced to presence between them agreements on mutual aid in case of fulfilment against one of them of aggression certificates. G osudarstva can enter into such agreements (including the creating military-political unions), however in these agreements the armed intervention in the conflict of the third state cannot be provided. Because of fear of many states of probability of such intervention from military blocks there was the Movement of non-alignment formed in 1961 and consolidating more of 120 states. The given movement not only defends a nonparticipation position in military blocks, but also underlines fatal consequences of participation of leading powers - permanent members of the UN Security Council in such blocks [463]. In this channel prof. S.V.Chernichenko reflected also, classifying measures of international legal compulsion depending on quantity of participants carrying out them. In this connection he notices, that collective measures of such order can be carried out only at international legal level the international intergovernmental organisations within the limits of the competence. It is a question of the United Nations and the regional international organisations, such as OAE, the LOG, the EXPERT [464].

On interpretation of item 51 of the Charter of the United Nations there are also other complexities, in particular because the sustained state independently should establish presence of the fact of armed attack on it from other state. In this case there is a question: whether the United Nations can SB always agree with such estimation from the sustained state? Moreover, if SB the United Nations define in a concrete case presence of threat to the world, infringement of the world or the aggression certificate it can independently operate according to item 41 and 42 Charters of the United Nations concerning the state-infringer. In other words, in this case item 51 is substituted for involvement of system of collective security. The problem becomes complicated also that fact that there are no adjusted criteria for ascertaining of the facts of armed attack. In this case it is possible to address only to the definition of "aggression" containing in resolution G e - neralnoj United Nations Assemblies № 3314 (XXIX) from December, 14th, 1974 Which is the document of the so-called "soft" right for SB the United Nations. In this connection it is necessary to pay special attention on a preamble of the given resolution in which it is underlined necessity of the account of all circumstances for each concrete case for a context of main principles of international law. In other words, resolution positions № 3314 order to corresponding state - to a victim of armed attack to consider all circumstances of a concrete case, and also to be guided by installation of item 4 of item 2

The charter of the United Nations both other principles and norms of modern international law. That the right to self-defence starts to operate only in the presence of application of the armed force by other state by the first follows from aggression definition also, and that only SB the United Nations have the right to define the aggression certificate according to resolution positions № 3314, and also in the light of concrete circumstances, including degree of gravity of consequences of armed attack. In other words, cases when the state, applying the right to self-defence, considers the actions lawful can take place, and SB the United Nations can qualify such actions as wrongful, taking into consideration, in particular, circumstances accompanying a given case and degree of gravity of threat of territorial integrity and political independence of the corresponding state.

Disputable also it can appear and definition of the fact of superiority of application of the armed force by the state when contestants convict each other of armed attack. Practice of the international relations only testifies to furious upholding by the arguing states of the opposite positions on the given question. The account of this moment has great value in conditions when according to the Charter of the United Nations presence of the fact of aggression can establish only SB the United Nations, and in case of the armed attack provided by item 51 of the Charter of the United Nations, can define the interested state.

At realisation of item 51 of the Charter of the United Nations the state - the victim of an attack, obviously, has the right to address to the third states for the help in business of its lawful self-defence, that also is a complicated question in practice of the states. In this connection there is a question on character of the help of the third state that is especially actual at rendering of military support. In this occasion the position of prof. N.A.Ushakov was categorical; he considered, that the armed support from the third state is forbidden by international law. Nevertheless, this question arises concerning the military blocks which enactments provide automatic involving in military actions of all member states such blocks in case of an attack on one of these members. Prof. N.A.Ushakov did not consider also state possibility to render the military help to other state on a contractual basis for destruction in territory of the last of terrorist groups.

In business «Nicaragua against the USA» the United Nations International court as already it has been noted above, considered the right to self-defence as usual and contractual international legal norm simultaneously. The given case is interesting also to that in it the Court has confirmed the right of the state to self-defence in case of "armed attack", and thus the Court has specified, that speech should go about «the most destructive forms of application of force» which are connected with armed attacks [465]. The Same opinion has been confirmed by United Nations International court in the decision on business of "the Oil platform» [466]. It is necessary to notice, that in the decision on business «Nicaragua against the USA» the International court of the United Nations was beyond the traditional approach in understanding of the "armed attack" proceeding from other state. The court has noticed, that armed attack on the state can be made and from not state formation (non-state actor), that is provided in the resolution of HECTARES of the United Nations «About aggression definition» 1974 However, mentioning extremely a complicated question of the theory of the international law, connected with activity of not state formations in the international relations, the Court was interested only in communication presence between an attack of bands and the state which has organised and supported these bands against Nicaragua in territory of the next state. Thus the Court has assigned the onus of proving of such communication to the state - a victim of armed attack. Though the Court has refrained from consideration of the key aspects connected with activity of not state formations, it has unequivocally denied the statement of those who considered in this business, that item 51 of the Charter of the United Nations is not applied to not state formations which have made armed attack on the state. We will notice, that further SB the United Nations were apprehended by this approach in the resolutions condemning terrorism.

In the conditions of a recognition International court of the United Nations of the right to self-defence as norm of the international usual and contractual character, the attention of scientists to UN Security Council positions on key aspects of realisation by the states of the right to self-defence increases. In this connection we will notice, that position SB the United Nations on those or other aspects of the right to self-defence as a whole was not enough accurate and stable though evolution in its approaches was observed. For example, if in 1967 SB the United Nations Eilat and the conclusion of the military pact between Egypt and Jordan [467] in 1981 SB the United Nations has condemned the authorities of Israel for nuclear reactor bombardment in Iraq under the pretext of preventive samoobo - rony [468] has refrained from criticism of the authorities of Israel for fulfilment of armed attacks on the next Arabian states in reply to blockade of its southern port by them.

At level of a science and international law practice importance of observance of conditions of necessity and proportionality is recognised at realisation by the states of the right to self-defence [469]. Differently, for realisation by the state of the right to self-defence presence of the fact of armed attack from other state is necessary, thus as the basis various kinds of so-called "preventive" self-defence in the absence of real armed attack [470] cannot serve. At qualification of events the great value gets also armed attack scale for necessity of reciprocal lawful application of the armed force depends on it as the right to self-defence and proportionality of these reciprocal measures of power character [471]. Group of high level on threats, calls and the changes, created by the Secretary general of the United Nations, and the Secretary general of the United Nations in corresponding reports underline, that in all cases observance of conditions of proportionality is required at realisation of the right to self-defence [472]. Observance of these conditions (necessity and proportionality) experts figuratively is called as "heart" of the right to self-defence in international law [473].

The United Nations international court in each concrete case carefully understands, whether is observed at application of the right to self-defence a proportionality condition by results of what, for example, in business «About an oil platform» the Court has fixed observance of the given condition [474], and in an another matter the Court qualified infringement of a condition of proportionality from the armed forces of the Uganda which has made an attack on the airport and other objects, located for some hundreds kilometres from border of Uganda in territory of the next state [475 [476]. The United Nations International court also was guided by the proportionality principle, provided MGP, in the Konsul -

477

tativnom the conclusion about legitimacy of threat or application of the nuclear weapon.

Considering positions of International court of the United Nations [477] and UN Security Council practice by right on self-defence, it is possible to expect, that SB the United Nations in the long term will direct the considerable efforts for studying disputable, but the basic moments arising from realisation of the granted right in practice [478].

In a domestic science of international law of the Soviet period the principle of non-aggression was proved and communication between this principle and concept of aggression was underlined: the non-aggression principle forbids aggression. The armed aggression and other forms of aggression differed.

Prof. S.B.Krylov paid attention to that fact, that in item 1 of item 2 of the Charter of the United Nations there is no special mention of «the armed force». It reminded, that expression «the territorial integrity and political independence» has been included in item 4 of item 2 of the Charter of the United Nations at conference in San Francisco on request of the small states. It was not casual, for the territorial integrity of the states can be broken only physical strength, and political independence - at use of any kinds of forces [479]. Thus, scientists as a whole share opinion that absence in item 4 of item 2 of the Charter of the United Nations of the term the "armed" force is compensated by positions of a preamble of the Charter of the United Nations where it is spoken about that, «that armed forces were applied not differently, as in common interests».

The international law science gave and continues to pay sufficient attention to the right to self-defence, immediately reflecting incoincident opinions of scientists on its key aspects. For example, professor J.N.Maleev approves, that the right to self-defence belongs to the states initially, without dependence from the United Nations Charter. However thus he underlines, that, realising this right, «member states of the United Nations are obliged to inform immediately on accepted measures to the UN Security Council, not to mention its powers and responsibility in connection with actions what he will consider necessary to accept» [480]. Considering that fact, that item 51 of the Charter of the United Nations is interpreted by other scientists as granting the right to the state to apply force preventively in case of obvious threat of fulfilment on it attacks («anticipatory self-defence»), professor JU.N. Maleev reminds, that abstaining from application of force, the state have the right to address to the measures which have been not connected with use of armed force, as the retortion or the retaliation in reply to unfriendly behaviour or an offence which does not have character of the international crime [481].

Professor J.N.Maleev not without the bases has mentioned retaliations, i.e. about reciprocal measures on illegal acts of other state. As a classical example of the retaliation in the western international legal literature often result a case which was taking place in 1928, become by a subject of trial of arbitration court between Germany and Portugal in connection with destruction by the German armed forces of the objects located in the Portuguese colony in Angola, in reply to murder of three citizens G ermanii in territory of Portugal. The arbitration court has noted necessity of the decision of similar cases within the limits of problems of indemnification and strict observance of a principle of proportionality. On this basis the arbitration court has denied the statement of the authorities of Germany that they operated legally [482].

It is necessary to notice, that in the light of requirements of item 4 of item 2 of the Charter of the United Nations of the retaliation [483] quite often are called as "counter-measures" which often associate with the right to self-defence. In this connection the position of the US State department which has declared is worthy, that retaliations with application of military force are neza - horse [484]. In addition to the told we will remind, that the United Nations International court also considers military retaliations in a peace time illegal, and that at realisation of the right to self-defence it is necessary to observe a principle of proportionality [485].

The problems connected with realisation of the right to self-defence and abusing this right are comprehensively investigated in article of professor I.Z.Farkhutdinov [486]. The analysis begins with the following ascertaining: « In the current century there is a formation of the concept of preventive application of force as natural development of concept of self-defence. According to it, the being of preventive blow consists, as treat its initiators, not in avoiding, and in elimination of the reasons of the conflict, in influence on the processes leading to application of violence and its escalation ». The author in detail stops on definition of the terminology concerning the considered problematics, which confused enough. For this purpose the competitor analyzes the problems connected with struggle against terrorism, positions of Security council and United Nations International court about« preventive war », doktrinalnye approaches and the national policy of the states on this question. As a result of the analysis of prof. I.Z.Farkhutdinov does the important conclusion of conceptual and practical character:« Fulfilment of act of terrorism neravnotsenno to armed attack of one state on another, to the granting state-victim the right to resort to self-defence »[487]. Differently, by the subject of fulfilment of aggression against the state the terrorist organisation, i.e. not state formation (as it becomes SB the United Nations in the resolutions accepted by it recently), and, hence, can be recognised the state-victim can take against such terrorist organisation power measures, however realisation of the right to self-defence in such cases assumes the strict account of many conditions and circumstances, including a principle of non-interference to internal affairs of other state, if this state any obra -

~489

zom it is connected with activity of the corresponding terrorist organisations [488]. The same position was occupied with United Nations International court in the decision on business «Nicaragua against the USA».

Prof. I.Z.Farkhutdinov notices, that the requirement about "armed attack" presence represents «most inconsistent of conditions of realisation of defence and flashes a number of the areas which have been not settled in international law» [489]. We will notice, that prof. I.Z.Farkhutdinov answers in the affirmative a question on, whether the state can, not addressing in SB the United Nations and referring to the right to self-defence, in advance to undertake actions as self-defence, and not only anticipatory actions, but also preventive actions. However the scientist reserves presence «telling arguments and proofs» for this purpose. He writes: « The basis for the permission of anticipatory defensive measures in these circumstances is that in some cases the state-victim cannot rely in a question of restraint of threat on the state where terrorists »[490] are deployed. Told it is accompanied by the prevention of the scientist that« acceptance of unilateral measures bypassing Security council undermines the conventional system of safety, breaks developed world order and leads to anarchy in the international relations »[491]. One specification Here is required: professor I.Z.Farkhutdinov supposes application of preventive self-defence in some cases as it becomes also many foreign experts, however he demands, that about all such unilateral power actions in the international relations has been brought to the notice SB the United Nations as it is demanded by the United Nations Charter.

Recently there are the new and new "names" of aggression ostensibly reflecting new realities which do not keep within frameworks before known models of the description of the international relations. One their such new concepts - "preemptsija" - has devoted research of prof. I.V.ponkin. It not only opens concept and genesis kontsepta preemptivnoj wars and compares «preemptivnuju war with" preventive war », but also explains their distinctions. He writes:« According to our concept, unlike a preventive attack when threat of an attack of the opponent is real and inevitable (proceeding from the incontestable basis to consider, that the attack of the opponent approaches and is inevitable) and when the aspiration to strike a blow the first, instead of the second is realised, preemp - tivnoe the attack has at the heart of the motivation and a substantiation essentially more postponed and implicit (or in general imaginary) threat, aspiration to untie war earlier through anticipation of possible realisation in the future of this postponed or is expected arising threat ». The scientist in the research has devoted special section« preemptivnoj to war within the limits of international law ». Under the name of last section of article the position of the author on it kontseptu -« Immorality kontsepta pre - emptivnoj wars »[492] is visible.

In the western science of international law attempts to legalise various «preventive wars» for a long time were undertaken. For example, known American scientist CH.CH.Hyde supposed application of the armed force within the limits of realisation of the right to self-defence not only against an aggressor, but also a "possible" aggressor for the purpose of self-preservation [493]. Prof. A.Fedross as the precondition of defensive war named circumstance not only attacks from other state, but also process of preparation of the beginning of military actions [494]. It is clear, that at such approach distinction between self-defence and the armed aggression does not become, i.e. the chronological criterion is ignored.

The western scientists-jurists define two exceptions of a principle of non-use of force in the international relations: the collective measure accepted from the United Nations under decision SB the United Nations, and the right to self-defence. However, they consider disputable a question on such exception in the relation of "humanitarian intervention» [495].

It is necessary to designate those problems which promote different interpretations about the right to self-defence. First of all it concerns problems of definition of the moment of armed attack which allows to apply the right to self-defence as a reciprocal power measure about what already it was spoken above. The following problem of such order is expressed in definition of concrete objects which become the purposes of reciprocal application of force within the limits of self-defence. As examples on August, 7th, 1998 on embassies of the USA attacks can serve in Kenya and Tanzania in which result were lost more than 250 persons and buildings have been destroyed. In the answer on August, 20th, 1998 the USA have started cruise missiles on the objects located in Afghanistan and Sudan where, under their statement, there were terrorists from Osama bin Laden's organisation. US authorities proved these blows, referring on the right to self-defence according to item 51 of the Charter of the United Nations [496].

The additional problem arises in cases of armed attacks from not state armed formations (non-state actors) about what it was spoken above. Though the United Nations international court in the decision on business «Nicaragua against the USA» has concerned this question in a context of the bands generated in the next state by means of the third state, however the Court has not confirmed the right of Nicaragua to self-defence. The court also has avoided acknowledgement of the granted right in the decision on business «About wall building» [497] and has not found sufficient proofs about an involvement of the concrete state into an attack in business «Democratic Republic Congo against Uganda» [498]. At the same time, the questions connected with armed attacks on the states from not state armed formations, demand the scientific answer. Partially these answers contain in resolutions SB the United Nations which position was formed gradually. As a whole SB the United Nations in many resolutions qualified armed attacks on the states from terrorists and other not state illegal armed formations in quality «threats to the world» and by that equated them to «military attacks» on sense of item 51 of the Charter of the United Nations [499]. And the states - a victim of these acts of terrorism informed SB the United Nations that they operated on the basis of the right to self-defence according to item 51 of the Charter of the United Nations [500]. In particular, the USA have informed on October, 7th, 2001 SB the United Nations on application of force against the Taliban mode in Afghanistan, which, in their opinion, "al Kaide" supported (is forbidden in the Russian Federation on the basis of the decision of the Supreme Court of the Russian Federation from 14.02.2003 № GKPI 03 116 which 04.03.2003 [501] have become effective), organised terrorist attacks to the USA [502].

To the told it is necessary to add, that in connection with scientific and technical progress there are the new problems connected with definition of "attack" in a context of the right to self-defence (for example, hacker attacks to the vital objects of the state), that gives to experts the basis to speak about necessity of the "flexible" approach to interpretation of "armed attack" [503].

In the past in practice of the states cases of protection for the states outside of their borders of the citizens and legal bodies were known. Such protection nowadays predusmot - rena in constitutions of many states. It has found reflexion in the Project of articles about responsibility of the states for the international illegal acts [504] and Report KMP the United Nations about diplomatic protection [505].

Though these cases completely come within the purview of item 4 of item 2 and item 51 of the Charter of the United Nations, they, however, are worthy and because in similar situations it is a question of protection of citizens, and, hence, by their consideration it is necessary to be guided also by the international legal acts providing protection of human rights. In the basic international treaties about human rights, including International pacts about human rights of 1966, the condition of necessity of preliminary exhaustion of internal possibilities of the states is provided before to address to the international remedial mechanisms [506]. In other words, exhaustion of internal remedies at law foreign legal or physical persons is a preliminary and necessary condition that the state of their national identity could establish the infringement fact other state of the international obligations and apply admissible measure international law, including measures on diplomatic protection of the victims physical or legal bodies. Non-observance of the given condition should be qualified as intervention in internal affairs of other state. Observance of conditions of preliminary exhaustion of internal possibilities by the United Nations International Law Commission admits as a principle of the general international law which has affirmed as international law in parallel with norms about the reference with foreigners. If there is a dispute between the corresponding states about observance of preliminary exhaustion of internal possibilities the given dispute comes under to settlement by pacific means.

As a whole at infringement of the rights physical or legal bodies and at observance of a condition of preliminary exhaustion of internal possibilities of protection of the broken rights the state of a national identity of these persons has the right to take admissible measures in international law for protection of the rights of these persons. It is clear, that those situations which are characterised mass and gross violations of the rights foreign physical and legal bodies when SB the United Nations can qualify them as threat to an international peace or infringement of the world here are excluded and to apply forced measures according to item 41 and 42 Charters of the United Nations.

It is necessary to underline, that the specified rules will be effective in the conditions of observance of principles of non-use of force or threat by force and non-interference to internal affairs of other state. Clearly, that in similar situations the sustained state has the right to resort to those measures of the international responsibility which are possible and admissible and which in the Project of articles about responsibility of the states are called as counter-measures concerning the international illegal act of other state.

In international law the right of the sustained state to diplomatic protection physical and legal bodies of its national identity is conventional. Certainly, the granted right can be challenged in case of a dual citizenship of the given physical person or an unknown national identity of the given physical person. If the sustained state cannot resort to admissible coercive measures in the international relations, not connected with use of the armed force, it can operate on the basis of item 60 of the Viennese convention on the right of international treaties of 1969 Differently, at the sustained state possessing the right of defence of the citizens and legal bodies abroad, there are sufficient for this means, not demanding applications of armed forces.

In the light of the told it is necessary to estimate various concepts, including the concept of "humanitarian intervention» which is defended by some scientists and the states as the usual rule of law owing to an inefficiency of system of maintenance of an international peace and safety. From the point of view of operating system of collective security only the UN Security Council on behalf of the international community of the states has the right to define, that threat to an international peace takes place, and to take the necessary measures, allowing to cope with the created situation.

As the concept of "humanitarian intervention» is connected with protection of human rights, it is necessary to be guided by principles and norms of international law of human rights, and also obligations of the states on respect and observance of fundamental laws of the person. The concept of "humanitarian intervention» is not that other, as substitution of powers SB the United Nations interests of the separate states.

In item 1 of item 53 of the Charter of the United Nations one more exception of an interdiction for force application - application of forced measures by the regional bodies provided in regional agreements and directed against renewal of an aggressive policy from any such state till that time when the corresponding regional organisation of the general competence at the desire of the interested governments can be made responsible for the prevention of the further aggression from such state contains. Such position contains, for example, in the Contract on joint defence and the economic cooperation concluded in 1950 as addition to the Pact of League of the Arabian states (LOG), in the International treaty about mutual aid, the prisoner in 1947 in Rio de Janeiro which positions have found reflexion in the Charter of the Organization of the American states (OAG) 1948 after its reform in 1967 [507] These dogovory do not contain any instructions that armed forces of the states participating in them can be applied only under the authorisation on that by the UN Security Council. In practice it means, that application of armed forces according to these regional agreements is based on the right to collective self-defence under item 51 of the Charter of the United Nations, that as a matter of fact contradicts installations of system of the collective security fixed in the Charter of the United Nations. These dogovory, including and the contract on NATO [508], transform the corresponding regional organisations (the LOG, OAG, the EXPERT) to military-political blocks. By the established rules, in these blocks armed attack on any state which is a member of the block, is considered as an attack to all member states on the basis of what there is a right to self-defence under item 51 of the Charter of the United Nations. In these agreements even application of a measure of self-defence is provided before SB the United Nations will take corresponding measures. One more circumstance on which it is necessary to pay special attention, consists that in these contracts possibility to resort to application of the armed force not only in case of armed attack is supposed, but also in a case when to the sovereignty of any member state of the block threat as a result of the actions which are not armed attack is created,

Undertaken even from other region. Differently, these dogovory actually ignore the system of collective security fixed in the Charter of the United Nations [509].

Thus, not settled questions gl. VIII Charter of the United Nations with reference to collective security system at the universal level, the United Nations based on the Charter, condition for an exit of regional bodies for frameworks of the obligation of the peace permission of state differences.

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A source: Didmanidze Uhlan Temurovich. the INTERNATIONAL LAW SCIENCE ABOUT RESTRICTION And PROHIBITION of APPLICATION of the ARMED FORCE In the INTERNATIONAL RELATIONS. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2017

More on topic § 3.3. Understanding of the right to self-defence in an international law science:

  1. § 3.2. Force non-use in the international relations under the Charter of the United Nations and its understanding in an international law science
  2. § 3.4. An international law science about an international legal liability of infringement of installations of the Charter of the United Nations about force non-use in the international relations
  3. the Chapter III. The INTERNATIONAL LAW SCIENCE About INTERNATIONAL LEGAL INSTALLATIONS ON RESTRICTION And PROHIBITION of APPLICATION of FORCE In the INTERNATIONAL RELATIONS And ABOUT RESPONSIBILITY FOR THEIR INFRINGEMENT
  4. § 3.1. An international law science about prohibition of aggressive war in the international relations
  5. § 2. A problem of understanding of a crime of aggression in modern international criminal law
  6. § 2.1. The Russian science of international law XVI - the beginnings of XX centuries about fair and unfair wars
  7. Rusinova Belief Nikolaevna. HUMAN RIGHTS In CONFRONTATIONS: the PARITY of NORMS of the INTERNATIONAL HUMANITARIAN LAW And INTERNATIONAL LAW of HUMAN RIGHTS. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2015, 2015
  8. § 1. Approaches to definition of "the WTO right» in an international law science
  9. § 1.3. The West European science of international law about the just war during the period after Gugo Grotsija
  10. the Chapter II. The DOMESTIC SCIENCE And INTERNATIONAL LAW PRACTICE About WAR
  11. Didmanidze Uhlan Temurovich. the INTERNATIONAL LAW SCIENCE ABOUT RESTRICTION And PROHIBITION of APPLICATION of the ARMED FORCE In the INTERNATIONAL RELATIONS. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -, 2017 2017
  12. § 2. Essence of differentiation of the international humanitarian law and international law of human rights as international law branches
  13. Sidorov Vadim Aleksandrovich. the honour and advantage Right of defence: the RIGHT And MORALS PARITY. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2003, 2003
  14. the Chapter I. TEOLOGO-PHILOSOPHICAL BASES And the POLITIKO-STANDARD BEGINNINGS of the SCIENCE of INTERNATIONAL LAW About the JUST WAR
  15. Filippova Sofia Jurevna. the Tool approach in a private law science. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2014, 2014
  16. a fundamental law as the right of self-defence and the state duty of protection
  17. 1.2. A phenomenon of process of understanding with a support on vyvodnoe knowledge in frameworks koyognitivnogo directions in a science
  18. § 2. A legislative regulation of institute of the justifiable defence in criminal law of the Russian Federation and a condition of its legitimacy
  19. §2. Concept "terrorism" of an international law science