7 The concept of self-defence

is

a

charac teristic

featu

re

of

all

primi tive

legal

syst

ems,

but

in

i

law it has been honed

to

4

form .

art

Self-he lp under

intern

ational

law

may

be display ed in a vari

et

In the firs t place,

an agg rieved Stat e

may resor t to non-fo rcib

such

as

se

vering

diplo

matic

rel

ations

with

anothe

r

State

or

d

forei

gn

dipl

omatpersona

non

5

lly, legitim ate self-help

in

grata. Additiona

the

relations

between

St

ates

may

take

the

shape

of

forci

ble

mea

wh

ich case

these

measu

res m ust nowad ays meet the

requ

iremen

def

ence.

Occa sionally,

int

ernational

legal

sc

holars

regard

the

conc

self-he lp and self-defe

nce

as

related

yet 6 separateHowever,.

the

proper

app roach is to view

se

lf-defenc

e

as

a species

subord

inate

to

th

self-he lp. In other

word

s,

self-de

fence

is

a

permi

ssible form

of

‘

hel

p’7.

The legal

notion

of self-defe nce has

its

roots

in inter-pers onal

r

and

is

sanc tified

in

domes

tic

legal

syst

ems

since

time

imm

From

the

dawn

of

intern

ational

law,

writers

sought

to

apply

this

to

inter-Stat

e

relations

,

par

ticular ly

in

conn ection

with

the

doct

8

Chapt

er

3 cA)),. (But

when

the

freedom

to

wag

rine (see supra,

war

was

coun tena

nced

without

reserva

tion

(in

the

nineteent

h

a

twen

tieth

centurie

s),

conc

ern

with

the

issue of self-defe nce

was

met a-jurid ical

exe

rcise.

As

long

as

recours

e

to

war

was

cons

for

all, agai

nst

all,

for

an

y

reason

on

earth – inclu ding territ ori

or

even

mot ives

of

pres

tige and grande ur –

States

did

not

n

justifi

cation

to

comme nce

hosti lities.

The

plea

of

self-defe

nce

vant

to

the

discu

ssion

of

the

legalit

y

of

forcible

measures

‘short

such as extra-te rritorial

law

enforce

mentinfra(see, Chapt

er

8, bB)),.9 (

Still , logically as well as

legally, it had no role to

play

in

the

i

arena

as

regard

s

the

cardi

nal

issue10 ofUp warto.

the

point

of

the

4 See Y. Dinstein, ‘International Law as a Primitive Legal System’,NYUJILP191, 12

(1986–7).

5 See B. Sen,A Diplomat’s Handbook of International

Law

and

218,Practice232

(3rd

ed.,

1988).

6 See T. R. Krift, ‘Self-Defense

and

Self-Help:

The

Israeli

Raid on BJILEntebbe’,43,

4

55–6 (1977–8).

7 Report of

the International Law

Commission,

32nd

Session,

[1980]ILC YbkII 1,(2) 54.

9 Owing to these historical roots, the customary law relating

to self-defence

is often

as ‘best expressed’ in D. Webster’s formula in the Caroline incident (examined infra,

Chapter 8, B,c)).( M. A. Rogoff

and E. Collins,Caroline‘The

Incident and

the

Development of International Law’, 16

BJIL 493, 506 (1990).

The concept of self-defence

177

prohibi

tion

of

war, to

most

int ents

and

purpose s,

‘self-de

fence

legal conce pt but merely a

p olitical excuse for the

11

useOnlyof force

when the

uni

versal

libert y

to go

to

war

was

elimina

ted,

coul

d

emerge

as

a

right

of

signa

l

importan

ce

in

12

,lawon.

intern ationalIndeed

the eve of the ren unciatio n

of war (and, subseq uentl y, upon th

tion of all form s

of

int er-State

force),

the

need

for

regu

lating

self-defe nce became manifest supra(see , Chapt

er A4).,

The

evolut

ion

of

the ide a of self-defe nce in

internatio

nal

law

goes

‘han d

in

han

prohibi tion of aggressi13on.

The right of self-defe nce is

ens hrined in Article 51 of the Cha

United Natio ns, which pro claims:

Nothing in the present Charter

shall

impair

the

inherent

right

of

individ

collective

self-defense

if

an

armed

attack occurs

against a

Member

of

the

international

peace and security.

Measures

taken

by Members

in

the

exerci

this right of self-defense shall be

immediately

reported

to the

Security

Coun

shall not in any way affect the

authority

and responsibility

of

the

Security

under the present Charter to take at any

time

such

action as it deems ne

order to maintain or restore international

peace

and14security.

The

provisi

on

of

Article

51

has

to be

read

in

conjuncti

on

wi

th

of the

Charter

(supraee , Chapt

er 4, a))B,.15(Art

icle

2(4)

pro

mulgates

the

general

obligat

ion

to

refrai n

from

the

use

of

inter-Stat

e

forc

51

introduc

es

an

exce

ption

to

this

norm

by

al lowing

Mem

ber

emplo y

force

in

self-defe

nce

in

the

eve nt

of

an

arme

d

attac k.

Article 51 describes the right of self-defence

as both

‘individual’

‘collective’ in nature.

The meaning of these two

adjectives

in the co

self-defence will be

examinedinfra (Chapter

9,A). Interestingly enough,

the legislative history

shows that, at its

inception, the whole clause g

system).16 In actuality,

Article 51 has become the main pillar of the

self-defence in all its

forms,

individual as well as collective.

This chapt er will

deal

with commo n questio ns pert aining

13

Report of the International Law Commisuprasion,note

7, at 52.

14

Charter of the United Nations, 1945, 9 Int.Leg. 327, 346.

15 Ibid., 332.

Art

icle

51

expl

icitly

refe

rs

to a

‘right’

of

se

lf-defe nce. A

St

at

an

armed attac

k

is

thus

legally

entitled

to resor

t

to

force

.

The

has

been

mad e that

self-defe

nce

connotesde

onlyfactoconda

ition,

rath

er

than

a

verit

able

17

since

it

is

conce

ded

that

the

State

exer

rightBut.

self-de fence

is

‘exoner ated’ from

the

duty

to

refrai

n

from

the

us

agai

nst

the

othe

r side

(the

18

nce

betw

een

that

and

aggressor),thediffere

de jureright is purely nominal .

The thesis of self-defence as a legitimate

recourse

to force b y Utopi

is inextricably linked to the antithesis

of

the

employment

o

f

un

force b y Arcadia (its opponent). Under

n

o

circumstances

ca

actual use of force b y b oth

parties

to

a

conflict

be lawful

eously.

If

Utop

ia

is

p

roperl

y

e

xercising

th

e

r

ight

o

f

Arcadia

mus t

b

e

in

v

iolation

of

the

correspond

ing

duty

t

from

an

illegal

r

esort

to

force.

Should

Arcadia

be

using

force

authorized by the Security Council infra(see, Chapter

10A,–B) –

Utopia would not be abl e to invoke

agains t

A

rcadia

the

r ig

defence.19 By the same token, as an

American

Milit

ary

Trib

(following

Wharton)

held

in

the

Minist1949

riescase,

‘

there

can

be

no self-defense against

20

self-defense’.

In

pra

ctice,

when

int

er-State

force

is

emplo

yed, both parties

invo ke

the

right

of

21

such

cont radictory

claims

are

self-defe Butnce.

mutu

ally

exclu

sive:

on

ly one

of

the

antagoni sts can possibly be

an authent

ic

exerc

ise

of

the

right

of

self-defe nce,

wh

ereas

the

be dissembli ng. When each persis ts in

its

postu

re,

an

authori tat

minat

ion

is

required

to

establish

wh o

is

legally

in

infrathe ,rightD,

(see

a

refere

nce

to

self-de

fence

as

a

‘n

atural

right

’ or

a

r

ight

‘nat

ural

law’

–

althoug h

comm

on

in

pop

ular

and

even

som

pro

nounce

28

is

29

m

ay

be

conceived

as

an

an

ments–

unwarra ntedIt.

chron

istic

residu

e

from an era in whic h int ernationa

l

law

was

by

ecclesiast

ical

do

ctrines. At the pres ent time, there

is

no

t

m

trans cendent al truths pro

fessed to be derived from nature.

A

le

g

an

int erest

pro

tected

by

law, an d it must be validated

withi

n

work

of

a

legal

system.

Self-defe

nce,

as

an

int ernational

legal

rig

be

proved

to exist

withi n

the compass of positive internationa

l

la

It m ay be conten ded

that the right of self-defe nce

is jusinherent

natur ale,

but

in

the

sovere ignty of States. This cons truct

finds

sup

ser

ies

of

ident

ical

notes,

sent in 1928 by the Govern

ment

of

Stat es to a numbe

r

of

othe

r

Gov

ernmen

ts

(inviti

ng

them

Cont racting Parties to the Kellogg–Bri and Pact), where

it

was

sta

There

is

nothing

in

the

American

draft

of

an

antiwar

treaty

which

rest

impairs

in

any

way

the right of self-defense. That right is

inherent

i

sovereign

state

and

is

implicit

in every30 treaty.

Yet,

the

princi

ple

of

Stat

e

sov

ereignty

sheds

no

ligh t

on

the

th

def

31

St

ate

so

vereign

ty

has

a

variab

le

cont

ent,

wh

ich

de

ence.

the stage of development of the international legal order at any given

moment.32 The best index of the altered perception of sovereignty is that,

in the nineteenth (and early twentieth) century, the liberty of every State

to go to war as and when it pleased was also considered ‘a right inherent in

sov

ereignty

33

ra,

Chapter

D3,).

Notwi ths tanding

the

abo-

itself (see’ sup

The concept of self-defence

181

Any

law,

international

or

municipal, which

prohibits recourse

to

force,

is

sarily

34

limited by the right of self-defence.

This

postulate

may

have

always

been

true

in

regard

to

domesti

and

it

is currently

a

ccurate

also

in

respect

of

international

law.

safer

to avoid axiomatic propositions p urporting to

cover

fu

even

tualities

f

or

all

time.

Even

if

the

right

of self-d

efence

w

be abolished in the relations between

f

lesh

-and-blood

hum a n

there

is n o guarantee o f a similarobili

tyimmin in ternation

al

law.

Sel

defence

exercised

by

States

(legal

entiti

es)

is

not

to

be

equate

self-defence

carried

out by

physical

personsinfra(see, Chapter

8,

A,

(b ),iii). It is n ot beyond the realm

o f the plausible that

a

day

when

States

will

ag ree

to

dispense

completely

with

the

use

o

f

prerogative

o

f

self-defence

iserenti h

in

the

sovereignty

o

f

State

to su ch an exten t that no treaty

can

35

beit,

derogatecannotfrom

accepted.

It

is

by

no

m

eans

clea

r

w

hether

the

r

ight

of

s

may

be

classified jusas

36

(thus

curtailin

g

the

freed

om

of

Stat

cogens

to contract o ut of it), and, in any

evenjus cogenst, evenissusceptible

o f

modification (seesupra, Chapter 4, bE)), .( Far be it

f rom

us

to

sugg

that,

at

this

juncture,

the

right

of

self-defence is receding

or

t

sign ificance is abating. On theary,contrif anything, self-defence

is

gaining g round in the

p

ractice

o f

States. Nevertheless,

what

was

– i

s

n

ot

always

w hat

will

be.

In

its

Ju dgment inNicaraguathe

case

,

in

1986,

the

Internat

ional

Cou

of Justice gave a diffe rent

m

eaning

to

self-defe

nce

as

an

‘inhe

The Court cons trued the expr ession

as a referenc e to

customary

tional law37.Accord ing to the Court ,

the framers of the Charter t

ackn owledged that self-de fence was a pre-existi

ng

right

of

a

cu

nature, wh ich they des ired to pres

erve (at least38inThisessencis

ae).

sensible interpretation of Article 51, rationalizing the employment of the

adjective ‘inherent’ without ascribing to it far-fetched (and insupport-

able) consequences.

182

Exceptions to prohibition of use of force

to

refrain from

the use of forcesu pra(see,Chapter

4, aB)), . (The

existence

of

the right

of self-defence under general

customary

international

international

law

forbids the use of inter-State

force by all

States,

w

or not they

are

UN

Membersupra(see, Chapter 4,

Ca)), . ( In the

same

vein, any State

(even

if not a UN Member)

is entitled to

the

rig

prohibition

of

the

use

of

inter-State

force

and

the

exception

to

right

of

self-defence)

are

part

and

parcel

of

customary

international

as well

as

the

law

of

the

39

Charter.

B.

Self-defe

nce

as

a

respo

nse

to

an

armed

a

ttack

Sinc

e

the

right

of

se

lf-defenc

e

arises

unde

r

Article

51 only

‘if

attac

k

occurs’,

it

is

cl ear that the use of

force

in

self-defe nce i

on

dem

onstratin

g

that

an

armed

attack

has

taken

place.

Interna

tional

Court

of

Justice prono

unced

in

2003,Casein

the

Concer ning

Oil

Platform(bes tween

Iran

an

d

the

Unite

d

States ),

‘th

den

of

pro

of

of

the

facts

showing

the

exi stence

’ of

an

armed

at

the

St

ate

justifyi

ng

its

own

use

of

force

as 40self-defe

nce.

The

United

St

ates

has

tradi tionally

taken

the posit

ion

that

a

exerc

ise

‘antic

ipatory’

41

nce,in response

not

only

to

a

‘hostil

self-defe

act’

but

even

to

a

‘hostile

inten

t’

(a

dichotom

y

eleva

ted

to t

doct

rine

by

the

US

Ru les

of

42

the

US

was

Engag Inement)the . past,

care

ful

to

unders

core

that

an

ticipato

ry

self-de

fence

–

or

res

hosti

le

int

ent

–

must

neverth

eless

relate

to

theimminent‘threatuseofof

force

43

empha

tic

use

of

the

quali

fying

adjective

‘immin ent

’. The

great

import.

As

we

shall infrase ,e

((b),

(aai), the immin ence of an

armed attac k (provided that

it

is

no

longer

a

mere

threa

t)

do

justify an early response by

way

of

interce ptive

self-def

ence.

Ho

after

the

hei

nous

te

rrorist

attac

ks

of 11 Septembe r 2001 (9/11

know

n

stat ement of policy on preem

ptive

action

in

se

lf-defe

39

See ibid.,

102–3.

40

Case Concerning

Oil

Platforms, 2003,

42ILM 1334,

1356

(2003).

41

Annotated Supplement

to

the

Commander’s

Handbook

on the Law of Naval, 73Operation

ILS 263

(A. R. Thomas and J. C. Duncan

eds.,

1999).

42

Operational

Law

Handbook, supra note

26,

at

75

(2004).

43

Ibid. See

alsoAnnotated

Supplement, supra note

41,

at

263.

The concept of self-defence

183

issued as par t of the US

National

44

Se curity TheStratenewgy. policy,

often referre d to as the

‘Bush Doc

trine’

(a

fter

Pre sident

G.

appears to push the enve lope by claimin g

a

right

to

preemp

defence coun tering pure threats, es pecially by

te rrorists and in p

when

the

p

otential

use

of

weapons

of

mass

destruct

ion

(WMD)

into

the equ

45

what

practical

effects the

new

ationIt. is not yet clear

will

have

in

the

future:

contra

ry

to

wh

at

m

any

comme ntators

was

not

applied

in

Iraq

in

2003in fra(see,Chapt

er

10,

C,iii)(.b),But to

the

exten

t

that it will actu ally

bring

abou

t

a

preve ntive

use

respo

nse

to

sheer

threa

ts,

it

will

not

be

in

compl iance

with

A

the

46

Chart er.

Sinc

e

Artic le

51

permi

ts

self-de

fence

solely

wh

en

an

‘arme

occurs,

the

question

arise s

wh

ether

there

exi

sts

–

independ

entl

defence . The Interna tional Court

of Justice,Nicaraguain thecase,

base

d

its

decisio

n

on

the

no

rms of

custom

ary

internationa

l

law

conce

defence

as

a

seque

l

to

an

47

Court

stres

sed

that

thi

armed Yeatt,ackthe.

was

due

to

the

circum

stances

of

the

case, and

it

passed

no

jud

48

the issue at han d.

On the other hand, Judge Schw ebel

–

in

his

Di

ssenting

Opin

take

a

clear-c ut

p osition

on

the subject. In confor mity

with

a

scho ol of thought maint aining

tha t Art icle

51

only

highl

ights

o

self-defe

nce

(viz.

respo

nse

to

an

armed

attac

k),

without

neg

ati

patterns

of

legitima

te

action

in

self-de fence

vouchs afed

by

cus

intern

ational

49

Schweb

el rejecte d a readi

ng

of

the

te

xt

law Judge,

would

imply

that

the

right

of

self-de fence

under

Artic

le

51

exist

only

if,

an

armed

attac

k

50

urs’.

occ

In

the opini on of

the present writer, precisel

y

such

a

res

trictiv

of Article 51 is called for. Any othe r

interpret

ation

of

the

Artic

l

coun

ter-textu al,

coun ter-fact ual

and

counter

-logical:

184

Exceptions to prohibition of use of force

(i)

A

differe

nt

interpret

ation

of

Article

51

would

be

coun

te

beca

use

the

use

of the phrase ‘armed attack’

in

Article

51

is

vertent .

The

expr

ession

should

be

juxt

aposed

with

compa

rable

l

in

other

provisi

ons

of

the

Charter.

It

is

particula

rly

striking

fram

ers

of

the

te xt

prefe

rred

in

Article

51 the coinag e ‘arme

the

te

rm

‘aggress

ion’,

wh

ich

appears

in

the

Charter

in

se

veral

(the

Purposes

of

the

United

Nati

ons

(Article

1(1

)),

collecti

ve

(Ar

ticle

39)

an

d

regio

nal

arran

gement

s

51

(Ar ticleThe 53(choice1))). of

word

s

in

Article

51

is

delibera

tely

confi

ned

to

a

respo

nse

to

attac

k.

An

arme

d

attac k

is,

of

cours e,

a

typ

e of aggres sion. Aggr

gen

eric

meaning

may

be

stret

ched

to

include

merecf.

thresupra,ats

(

Chapt

er

5,

C,

i(),a), althoug h

it

is

int eresting

that

the

conse

Defin

ition

of

Aggr ession

,

adop

ted

b

y

the

Genera

l

As

sembly

wh

ile

not

pretendin

g

to

be

exhau

stiv

e

– does not cov er t

force52 (see su

pra,

Chapter

5B,). Yet,

only

a

special form

of

aggressi

amoun

ting

to

an

armed

atta

ck

justifi

es

self-de

fence

under

Article

Frenc h

versi

on

of

the

Article

sharpens

its

thrust

by

unspea

king

agres

sion

53

Und er

the

Art

icle, a

St

ate

is

permi

tted

to

use

ar´e’me.

self-de

fence

only

in response to agg ression

wh

ich

is

armed.

(ii

)

The

idea

that on e can go beyond

the

tex

t

of Article

supp

ort

for

a

broad

conc

ept

of

prevent

ive

self-defe

nce

in

c

int

ernational

law

is

coun

ter-fact

ual.

When

did

such

customa

ry

tional

law

evo

lve

an

d

wh

at

eviden

ce

in

the pract ice of States

from

sc

holarly

writings

)

do

we

have

for

it?

As supramen, Ationed,a()),

(

the

right

of

self-defe

nce

conso