RESEARCH QUESTIONS

1. Under “Article 51 of the UN Charter”, how does international law define the
right to self-defence and what are the restrictions of this right?
2. To what degree can the idea of "self-defence against non-state actors" help either
to expand or erode this right?

FIRST SLIDE
good afternoon everyone, my name, my topic is Exploting self defence: Unpacking misuse
of the right in international law
SECOND SLIDE
It is believed that defensive use of force is believed to be the origin of the right to self-
defence. It is a sovereign right to protect itself by exercising defensive use of force. Thus, the
protection of state sovereignty is interrelated to the origin of self-defence.
THIRD SLIDE
Carolina case:
an expedition of Canadian militia, under the authority of Great Britain, crossed the Niagara
River to the U.S. shore where the American steamer Caroline was docked. Rebels fighting the
Canadian government were encamped nearby, and the vessel had been used by sympathetic
Americans to transport supplies and arms to the group. The Canadian raiding party set the
Caroline ablaze and untied it from its moorings. Strong river currents quickly took the
crumbling vessel over Niagara Falls.

Coroline's case is referred for interpretation of the right to self-defence. Daniel webster on the
behalf of US stated “a necessity of self-defense, instant, overwhelming, leaving no choice of
means, and no moment for deliberation,” Daniel Webster's statement on behalf of the US,
which was agreed by Ashburton's counterpart, is invoked for the argument that the state may
use the right to self-defence only in case of imminent threat.1 Carolines dispute introduced
jurisprudence about the right to self-defence as an act of self-preservation, which could only
be used in exceptional circumstances.-

Right to self-defence is not just customary international law but now codified under UN
charter
FOURTH SLIDE

1
‘The Caroline Affair in the Evolving International Law of Self-Defense by Matthew C. Waxman :: SSRN’
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3240618&download=yes> accessed 14 March 2025.
Self-defence, under UN Charter, can be understood as a legitimate reaction to the ‘armed
attack’ by a state, to protect its sovereignty, territorial integrity, and political independence.
However, states can only exercise this right in one particular circumstance – an armed attack.
Principle of self-defence as mentioned in Article 51 is ‘linguistically’ understood to be
narrower than the customary concept of right to self-defence.
This is because Article 51 recognises self-defence only after an armed attack has occurred
against the state. However, the customary concept of self-defence, as mentioned by Daniel
Webster in the Caroline case, acknowledges anticipatory self-defence too

FIFTH
There was ambiguity between what kind of use of force which can be considered as armed
attack that could invoke the right to self-defence. States used to invoke Article 51 for small
acts of violence on borders instead of invoking article 2(4). And also the the definition of
armed attack was not defined.
“All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
AND SIXTH SLIDE
All the above questions were answered in Nicaragua vs United states 1986. In examining the
conditions governing the resort to self-defence, the Court also made a careful distinction
between collective self-defence and individual self-defence , while recognizing that the
inherent right (or droit naturel) that any state possesses in the event of an ‘armed attack’
covers both collective and individual self-defence.

The Court stated, in paragraph 249 of the Nicaragua judgment, that ‘While an armed attack
would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of
gravity cannot ...produce any entitlement to take collective counter-measures invoking the
use of force’.
 Court said that the possibility of collective self-defence within the meaning of Article
51 does not arise in the case of the use of force of a lesser degree of gravity than an
‘armed attack’, it did affirm that such low-level irregular military activity could
justify proportionate defensive countermeasures by the victim state itself.
Court came to the conclusion that the sending of armed bands by a state to the territory of
another state would also qualify as an armed attack if ‘its scale and effect’ could be
assimilated to an attack carried out by regular armed forces rather than to a mere frontier
incident.
DEFENCE AGAINST NON STATE ACTORS
Definition- The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to, (inter alia) an actual armed attack conducted by regular forces, or its
substantial involvement therein
This description of an armed attack by the Court was based, as we all know, on Article 3,
paragraph(g)of the definition of aggression under UNGA Resolution 3314 (XXIX), which the
Court declared to reflect customary international law. The Court affirmed that: ...in customary
law, the prohibition of armed attacks may apply to the sending by a State of armed bands to
the territory of another State, if such an operation, because of its scale and effects, would
have been classified as an armed attack rather than as a mere frontier incident had it been
carried out by regular armed forces.
More about the self defence against non state actors will be covered by my co presenter

SEVENTH SLIDE\
We all know individual self defence is already cleared by the above case and information
given.
Collective self-defence is also similar. In it third state can help the victim/ attacked states
under article 51 of UN charter
The Charter made absolutely clear in Article 2(4) that all UN member states ‘shall refrain in
their international relations from the threat or use of force. It allowed some exceptions to the
prohibition on the use of force in international law: self-defence under Article 51, and
military measures authorised by the Security Council in response to ‘any threat to the peace,
breach of the peace or act of aggression’ (under Chapter VII, and by extension for regional
organisations in Chapter VIII).
While invoking collective self defence some things needs to be considered such as
1. It should be requested by the victim state
2. There needs to be actual armed attack.
it should be proportionate and there should be a necessity

Then we go to what is role of UN security council

Since the UN Charter gives the Security Council primary responsibility for
maintaining international peace, it plays a crucial role:
1. ✅ States must report their actions – If a country invokes collective self-defense, it
must notify the UN immediately.
✅ The Security Council has authority – If necessary, the UN can override or limit
the self-defense response.
✅ Can authorize force under Chapter VII – The UN can approve military
interventions beyond self-defense.
3.
for treaties like NATO use this principle
the problem with the collective self-defence
2. Some states have used the right to collective self-defense as an excuse for military
intervention.
🔸 U.S. invasion of Iraq (2003) – The U.S. claimed it was acting in self-defense
against potential threats from Iraq’s WMDs, but this was highly controversial
SKIP 8TH MODULE

NINTH MODULE

THE SELF DEFENCE AGAINST NON-STATE ACTORS AND CHALLENGES

WILL BE COVERED BY MY TEAMMATES. WHAT I HAVE COVERED IS THE
AMBIGUITY OF DEFINITION, THE HIISTORICAL CONTEXT SELF DEFENCE
AND HOW IT IS NOW INTERPRETED UNDER ARTICLE 51 USING SOME
JUDGEMENTS