Public International Law II

According to this formula, a response in self-

defense must be necessary and proportionate.
There must be an imminent situation, no choice
2
of other means, no moment of deliberation, and
Discuss how the Security Council used its Chapter this necessity must be instant and overwhelming.
VII power during the Iraqi invasion of Kuwait in Furthermore, the act of self-defense must not
1990. involve anything unreasonable or excessive, it has to
be proportional to the threat. The defensive use of
force is limited to the right to use force to repel an
SELF-DEFENSE attack in progress, to prevent future enemy attacks,
By the terms of Article 51 of the Charter, “the or reverse the consequences of an armed attack.
inherent right of individual or collective self- It also includes taking the defense to the territory
defense if an armed attack occurs against a Member of the attacker, if it is necessary and proportional.
of the United Nations” was safeguarded. This The defensive use of force can be delayed. Taking a
provided the legal basis for the use of force by a reasonable amount of time to organize the defense
single member or a group of members in case of an is permissible. In its Nicaragua v. US Case decision,
armed attack without any requirement of Security the International Court of Justice confirmed that
Council authorization. The right of individual or action taken in self-defense remains subject to the
collective self-defense requires no action by the requirements of necessity and proportionality
Security Council before the actual use of force. (Keskin, 1998, 54).
Article 51 of the UN Charter states: The test for necessity is “strict and objective,
leaving no room for any measure of discretion’ as
“Nothing in the present Charter shall impair
stated by the International Court of Justice in its Oil
the inherent right of individual or collective
Platforms Case (ICJ, 1996a: para.73). It also points
self-defense if an armed attack occurs against a
Member of the United Nations, until the Security to the requirement that the use of force in self-
Council has taken measures necessary to maintain defense be adequately linked to the armed attack
international peace and security. Measures taken (Shi, 2018, 12). The nature of the targets may be
by Members in the exercise of this right of self- relevant to both necessity and proportionality. A
defense shall be immediately reported to the proportionate response will be one that is directed
Security Council and shall not in any way affect to legitimate military targets.
the authority and responsibility of the Security According to the Nicaragua Case decision (ICJ,
Council under the present Charter to take at any 1986), customary and general international law
time such action as it deems necessary in order
cannot be determined without recourse to the UN
to maintain or restore international peace and
security.”
Charter as the principal source of law, since the
law has been developing under the influence of the
Article 51 acknowledges the inherent right of Charter for the last 50 years. Still, the Charter does
self-defense, which is not without limits. First of not regulate all aspects of the right of self-defense. It
all, an action taken in self-defense must conform does not mention that response to an armed attack
with the Caroline formula. In 1837, British must be proportional to the armed attack and that
troops attacked and sank an American ship, the it is necessary to respond to it. International Court
Caroline, by burning and sending it down the of Justice stated that “the submission of the exercise
Niagara Falls, because the ship was being used to of the right of self-defense to the conditions of
provide supplies to insurgents against the British necessity and proportionality is a rule of customary
rule in Canada. The US protested and demanded international law” (ICJ, 1996b).
reparations. In the course of the diplomatic What the Charter requires is an actual armed
exchanges, Secretary of State Webster articulated attack. An armed attack does not need to be in
the two conditions essential to the legitimacy of the scale of a massive military operation. 1974
the use of force under the right of self-defense resolution of the Definition of Aggression provides
(Keskin, 1998, 50). for the possibility of an indirect aggression
amounting to an armed attack. Whether the

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 Use of Force and International Law

formula of “if an armed attack occurs” exclude the The use of force by the US in Afghanistan
possibility of anticipatory self-defense has always is accepted as an action of self-defense. The
been a main point of controversy. Article 51 does Security Council adopted Resolution 1368 that
not leave room for that interpretation, but many recognized the right of individual and collective
States including the US argued for the legality of self-defense. 9/11 attacks in 2001 on the US soil
preemptive self-defense (Peters, 2004, 4). On the against several government targets and World
other hand, majority of the doctrine and States Trade Center were accepted as an armed attack
consider that the ordinary meaning of the phrase serious enough to invoke the right of self-defense.
precludes preventive action (Brownlie, 1963, 275). Later, in Resolution 1373, the Council declared
Some authors have invoked the 1967 conflict itself acting under Chapter VII and decided that
between Israel and its neighbors as an example of all States shall take the necessary steps to prevent
preemptive self-defense. However, at that time the the commission of terrorist acts. Although the
dispute had been mainly about who attacked first language is slightly different from earlier examples
(Shi, 2018, 3). This example shows the dangers of authorization to use force, it certainly provided
of searching justifications retrospectively. Neither the US authorization, even though it really did not
party claimed a right of preemptive self-defense at need it when using force under the right of self-
the time, on the contrary, both kept claiming that defense. NATO also invoked its Article V for the
it was itself who was attacked first, and it was the first time in its history (NATO, 2001). Article V of
party using force in self-defense. Therefore, some the North Atlantic Treaty states that an attack on
caution should be expressed when scholars or other one member is an attack on all NATO members
States invoke State practice to support a certain and bases the organization expressly on Article 51
exception to the prohibition of the use of force, of the Charter.
when the very State never made any such claim. The most problematic aspect of this approach
Every action of self-defense requires the was the question of “against whom?” Al-Qaida
attacked State’s assessment of the situation. was a terrorist organization, not a State. The
After deciding the presence of an armed attack International Court of Justice states in the Wall
and responding it by using armed force, State advisory opinion that the armed attack must be
claiming self-defense is under a duty to report imputable to a State, ruling out the possibility of
measures taken to the Security Council. The an armed attack by non-State actors. This obstacle
right of self-defense is temporary until the was resolved by attributing the responsibility of
Council takes necessary measures to maintain 9/11 attacks to the state of Afghanistan, since it
international peace and security. If the State fails was giving shelter to this terrorist organization.
to report, its right of self-defense would not be The US also claimed that the concept of
impaired since it is an inherent right, but it would imminence must be redefined in an era of weapons
be in breach of its obligation to report under the of mass destruction. The right to use force
Charter. Moreover, as stated in the Nicaragua Case preemptively in self-defense situations involving
decision, it would indicate that the State itself was weapons of mass destruction has been claimed
not convinced that it was acting in self-defense by The National Security Strategy in 2002 (White
(ICJ, 1986: para. 105). House, 2002a), the so-called “Bush Doctrine”.
The UN Charter improves customary Israel is the principal proponent of the right of
international law by recognizing the right of anticipatory self-defense. It claimed this right
collective self-defense. Organizations of collective in its 1967 attack against Egypt, its 1975 attack
self-defense arises from the rule stipulated in Article against Palestinian camps in Lebanon, and also its
51. State practice shows that one State may defend 1981 strike against Osiraq nuclear reactor in Iraq
the other upon its request. However, State claiming (Shi, 2018, 8). Buchwald holds that “in essence,
individual self-defense must declare this situation the U.S. and others have found ways to shape the
and ask for the help of the others. Other States essential constructs of self-defense under the UN
cannot have the right of collective self-defense if Charter regime to justify use of force in cases where
there is not a call for help (Keskin, 1998, 59). they believe it is essential for security reasons”
(Buchwald, 2019, 181-182).

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Public International Law II

Nevertheless, this practice has never been

able to achieve the widespread approval of other
States. Osiraq strike led to strong condemnation
3
in Security Council resolution 487. Very few
States were ready to justify the invasion of Iraq In case of a nuclear attack, discuss whether it
in 2003 on the basis of preemptive self-defense, would be in breach of the right of self-defense
while the US contended that, given the “nature to use force against the attacking State when the
and type of threat posed by Iraq” (White House, missiles were spotted, but before they landed.
2002b) the US had a legal right to use force in
the exercise of its inherent right of self-defense.
“Nature and type of the threat” was supposedly UNCHARTERED TERRITORY:
chemical weapons developed, produced and HUMANITARIAN INTERVENTION
stockpiled by Iraq. AND RESPONSIBILITY TO
States tried to justify their use of force mainly PROTECT
under the exception of self-defense. Trying to Humanitarian reasons are not mentioned in
expand the limits of it, they claimed that a certain the Charter as an exception or limitation to the
action constitutes an application of self-defense. prohibition of the use of the force. Consequently, it
This attitude had tremendous effect on the must be found in customary international law. The
conception of the right of self-defense. It became 1990s witnessed a debate about both humanitarian
a nebulous concept ranging from actions against intervention and obligations that States might have
armed attack of another State (self-defense proper) in cases where governments deny even the most
to the so-called “surgical” operations carried out in basic human rights. The 2000s focused on war
the span of a couple of hours (D’Aspremont, 2010, against terrorism and how to respond terrorist
1100-1101). organizations. Arising from it, a debate whether
In 2004, the UN published the report of the the prohibition of the use of force is not what it
Secretary-General’s High-Level Panel on Threats, was. It was even claimed in the 1970s that Article
Challenges and Change: A More Secure World: 2/4 is on the brink of death.
Our Shared Responsibility (UN, 2004). The Panel Efforts to stretch the limit of the prohibition of
agreed that a “threatened State, according to long the use of the force have been the result of a couple
established international law, can take military of reasons. First, the common security system
action as long as the threatened attack is imminent, envisaged by the Charter has never been able to
no other means would deflect it and the action is work properly due to political reasons, as well as
proportionate” (para. 188). This shows that the the structure and voting procedure of the Security
Panel upholded the long-held interpretation of the Council. Moreover, while prohibiting use of force,
right of self-defense. the UN Charter was able to put a common security
The UN Charter remains the principal frame system supposed to be working only in situations
for the legal justification of use of force by involving threat to the peace, breach of the peace
States. This frame includes the “inherent right and act of aggression. Military use of force not
of self defense” in Article 51, the prohibition on amounting to them was also prohibited, but left
the threat or use of force in Article 2(4), and outside the common security system.
the authority of the Security Council to act on If an action of use of force does not amount
behalf of all UN members to take any actions to an armed attack, States cannot invoke the
necessary to deal with threats to or breaches of right of self-defense either. All they can do is to
international peace and security (Articles 25, 39, take proportionate counter-measures as stated
41 and 42). The Security Council is authorized in Nicaragua Case decision. What these counter-
to use force as it sees fit to restore international measures can be, the Court did not say. When a
peace. State injured by a violation of its rights, it is entitled
to react by infringing some obligations. This is called
a counter-measure. Military counter-measures are

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