The right to self-defense under International Law

• An inherent right?

The ambit of the right to self-defense under international law has been under scrutiny, especially in light of Syria and North Korea. The contested right to anticipatory self-defense stems from a broad interpretation of Article 51 of the UN Charter, which stipulates the exceptions to the general prohibition on the threat or use of force against the territorial integrity and the political independence of any state, or in any manner which is inconsistent with the purposes of the United Nations, Article 2(4) of the UN Charter. Determining how wide the scope of the right to self-defense is significant in light of the central role played by Article 2(4). Martin Dixon calls this provision one of the central obligations of the Charter, stating that it has now attained the status of jus cogens. The prohibition on the unilateral use of force has been affirmed several times i.e., by the ICJ in the Palestinian Wall Advisory Opinion (2004), Congo v Uganda (2005), Ethiopia v Eritrea (2006), Guyana v Suriname (2007). In Nicaragua v USA (1986), the ICJ noted that this provision represents customary international law.

The right to self-defense exists under customary international law and may be traced to the Caroline Case (1837). The correspondence between the US Secretary of State Webster and British officials made two, significant points on which both sides agreed;

i.) There must be a necessity of self-defense at the start, which must be instant, overwhelming and leave no choice or means and no moment for deliberation.

ii.) The act done in self-defense must be proportionate to the harm threatened and must not be unreasonable or excessive.

Dixon notes that, under international law, there are four main situations where a right to self-defense arises;

a.) In response to a direct and ongoing attack e.g., by Kuwait against Iraq (1990).

b.) In anticipation of an armed attack or threat to the state’s security, so that a state may strike first with force to neutralise an immediate, potential threat to its security. This was argued by Israel in its strike against an Iraqi nuclear reactor in 1981.

c.) In response to a threatened or actual attack against state interests, such as territory, nationals, property and rights guaranteed under international law, relied on by Israel against Uganda in the Entebbe Airport case 1977 and by the US-led states in their invasions of Afghanistan and Iraq to counter the terrorist threat.

d.) Where the attack does not involve measures of armed force, e.g., economic aggression and propaganda..

Anticipatory self-defense is where a state may respond to an imminent, armed attack before it occurs. A pre-emptive attack is where the armed attack is not imminent but may take place in the future

Dixon notes that of these four situations, only the first elicits the right to self-defense; the old customary law is superseded by Article 51.

Article 51 states that there exists an ‘inherent right of individual and collective self-defense’ if an armed attack occurs against a Member of the UN, until the UNSC has taken measures necessary to maintain international peace and security.

This Article recognises that the right of self-defense is a necessary exception to the fundamental principle in Article 2(4). However, it is the UN which decides whether a claim of self-defense is legitimate or not. Failure to report was addressed by the ICJ in the Nicaragua case, where it stated that the absence of a report may indicate whether the State was convinced that it was acting in self-defense. This is a procedural requirement. Failure to comply will not render a claim invalid but, as per Alina Kaczorowska-Ireland, this warning has been taken seriously by a number of states. There are deep divisions over whether or not this is to be interpreted widely or broadly, especially following the 9/11 attacks. This is illustrated by the current, ongoing debate on whether the right to anticipatory self-defense is permitted under international law.

Alina Kaczorowska-Ireland distinguishes between anticipatory and pre-emptive self-defense. Anticipatory self-defense is where a state may respond to an imminent, armed attack before it occurs. A pre-emptive attack is where the armed attack is not imminent but may take place in the future and, thus, the state responds before the attacker can. US appears to be supporting the permissive interpretation of Article 51. (As in the case of North Korea) If the reason for US justification to attack North Korea is based on North Korean nuclear weapons and ballistic missile existence; who decides that the possession actually does create a danger of imminent attack or that it was created with an intention to attack the US? The path that US appears to be following in North Korean case, lays down a very dangerous precedent for any nation acting against another nation based on non-aggressive factors under the umbrella of the permissive doctrine.

Kaczorowska-Ireland distinguishes between anticipatory and pre-emptive self-defense. Anticipatory self-defense is where a state may respond to an imminent, armed attack before it occurs. A pre-emptive attack is where the armed attack is not imminent but may take place in the future and, thus, the state responds before the attacker can. The permissive doctrine states that the right to use force has not been taken away by Article 2(4) absolutely and, therefore, the customary right of self-defense under international law was never abolished.

The restrictive interpretation of Article 51 states that this provision is the only exception to Article 2(4).

“To be sure, the United States might still use force to try to curb North Korea’s nuclear threat. This scenario would try the jus ad bellum’s resilience and the United States’ commitment to it. Though the United States has violated the jus ad bellum before, it has also consistently engaged with and demonstrated its overall support for the regime. I argued last month that there are reasons to believe that the Trump administration will be different. Alternatively, the United States might forego military action against North Korea. In this event, North Korea’s nuclear program would still present a serious security threat. And again, the United States would be, at least for the moment, poorly positioned to lead a broad-based, multilateral initiative to contain that threat. Unless other countries step into the breach, the situation on the Korean Peninsula is likely to deteriorate even further.” Monica Hakimi (2017)