Current Legal Issues: the use of force in international law Self-defence: Article 51 of the UN Charter

Present law: using force in self-defence Despite the prohibition on the use of force in Article 2(4), states may use force in self-defence under Article 51 Frequently, when states use force they attempt to justify it under Article 51 Article 51 is a very important part of the Charter It comes within Chapter VII of the UN Charter Let’s look at Chapter VII briefly before analysing Article 51 in particular

Chapter VII of the UN Charter To download Chapter VII, click here: http://www.un.org/en/documents/charter/chapter7.shtml Chapter VII contains Articles 39-51 Chapter VII deals with threats to the peace, breaches of the peace and acts of aggression Chapter VII states that the Security Council will decide if there has been a threat to the peace, breach of the peace or act of aggression It is the Security Council that will decide on what measures must be taken to restore international peace and security Article 51 comes at the end of Chapter VII

Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

What does Article 51 mean? If a state suffers an ‘armed attack’, then it may respond The state doesn’t have to ask for permission to use force This is logical: waiting until it goes before the Security Council could take time A state has that right ‘until the Security Council has taken measures necessary to maintain international peace and security’ The state that uses force in this way must notify the Security Council immediately Even if a state uses force under Article 51, the Security Council can still take any action that it deems necessary

What does “inherent right” mean? ‘Inherent’ means “existing in something as a permanent, essential or inseparable element or quality” In Article 51, it means that all states have the right to use force in self-defence, and that this right is part of being a state The right of self-defence predates the UN Charter It was part of customary international law - the right already existed when the UN Charter was signed Remember the Kellogg-Briand Pact 1928 – many states signed but reserved the right to use force in self-defence When read with the words “Nothing in the present Charter shall impair the inherent right of…self-defence” it confirms that states already had the right to use force in self-defence and that the right continues, even after the UN Charter

The Caroline case - I The traditional definition of self-defence comes from the Caroline case “it was in the Caroline case that self-defense was changed from a political excuse to a legal doctrine” R Y Jennings, “The Caroline and McLeod cases’ 32 American Journal of International Law, 1938, p.82 The facts: The Caroline was a boat It was being used by some Canadian rebels, fighting against British rule in Canada Americans were helping the rebels using the Caroline Members of the British Navy set the boat alight and sent it over the Niagra Falls (an American was also killed) It became a major diplomatic incident between the US and the UK.

The Caroline case - II There was correspondence (letters) between the US and UK The letters that were exchanged between US Secretary of State Webster and Lord Ashburton from the UK contained several statements on the use of force in self-defence generally Those statements have been accepted over the years and have become part of the customary international law of self-defence

The Caroline case – III The principles agreed upon To use force there must first exist: “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” Any action then taken: “must not be unreasonable or excessive since the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it” Under these circumstances, and under those immediately connected with the transaction itself, it will be for Her Majesty's Government to show, upon what state of facts, and what rules of national law, the destruction of the "Caroline" is to be defended. It will be for that Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada,- even supposing the necessity of the moment authorized them to enter the territories of the United States at all,-did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. It must be strewn that admonition or remonstrance to the persons on board the "Caroline" was impracticable, or would have been unavailing; it must be strewn that daylight could not be waited for; that there could be no attempt at discrimination, between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her, in the darkness of the night, while moored to the shore, and while unarmed men were asleep on board, killing some, and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate, which fills the imagination with horror. A necessity for an this, the Government of the United States cannot believe to have existed.

So, how should Article 51 be interpreted? Two main schools of thought: Some scholars say that Article 51 and Art 2(4) are exhaustive - that means, the right to self-defence is now described in the UN Charter, and ONLY in the UN Charter Other scholars say that there is a customary right and there is also a right under Article 51 (they use the words “inherent right of self-defence” to argue that a right already existed before the Charter and it still exists)

How do we resolve this conflict? We should turn to the International Court of Justice (ICJ) – it is the body that interprets and applies international law The ICJ has stated that The words “inherent right of self-defence” refers to a right in customary international law that existed before the UN Charter came into existence Article 51 does not “subsume and supervene” customary international law The ICJ made these findings in a famous case called the Nicaragua case

The Nicaragua case Full name: What was that case about? Case Concerning Military and Para-Military Activities In and Against Nicaragua (Nicaragua v United States of America), (Merits), Judgment of 27 June 1986, ICJ Reports, 1986. The judgment is available here: http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5 A summary is available on wikipedia by clicking here: http://en.wikipedia.org/wiki/Nicaragua_v._United_States#cite_note-UN_ARES4131-24 What was that case about? Even after the US lost in the ICJ it continued to fund the contras and it continued to ignore the judgement. Numerous attempts were made by Nicaragua to get the US to comply with the ICJ’s judgment. All, without success. Nicaragua introduced resolutions at the General Assmebly seeking the US’ compliance: eg http://www.undemocracy.com/A-RES-41-31.pdf but the US and Israel always voted against them.

The Nicaragua case: the facts Nicaragua brought a case to the ICJ against the USA Nicaragua claimed that the US had been recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua (the US was supporting the ‘contras’ who aimed to overthrow the government) Nicaragua also claimed that the US had (inter alia) : Breached Artice 2(4) of the UN Charter; Breached the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956 Violated Nicaragua’s sovereignty by attacking by air, land and sea, killing Nicaraguan citizens, mining its harbours Used force and the threat of force against Nicaragua

The Nicaragua case: what Nicaragua wanted Nicaragua went to the ICJ seeking: A halt to the US’ activities in funding the Contras A halt to the US interference in Nicargua Compensation - Nicaragua wanted reparations from the US to compensate for the damage caused to its people, property and economy, for breaching the UN Charter and for breaching a treaty between the two countries

The Nicaragua case: The judgment There was initially argument as to whether the ICJ had jurisdiction to hear the case Nicaragua won that argument – the ICJ found that it had jurisdiction – the US then withdrew from the ICJ altogether Then the ‘merits’ of the case were heard The ICJ found (inter alia) that: the United States had been involved in the "unlawful use of force.” The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. This was followed by the statements that the judges voted on

The Nicaragua case: what happened in the end? Nicaragua won The ICJ held that the US had acted unlawfully and should pay compensation But the US refused to comply with the judgment Nicaragua tried many times to get the US to comply: the US refused Nicaragua brought the matter to the Security Council many times: In 1984 (once) In 1985 (three times) In 1986 (twice) Every time, the US used its veto power (See notes for source) Nicaragua also took its case to the UN General Assembly in 1987 seeking the US’ compliance: the US and Isreal were the only countries that voted against that resolution The US never took any notice of the ICJ’s decision The US never paid compensation to Nicaragua The US never apolgised to Nicaragua for its actions http://www.globalpolicy.org/component/content/article/102/40069.html

Why is this case important? For many reasons… Regarding jurisdiction Regarding the fact that the US completely ignored the judgment Regarding the meaning of Article 51 that the right of self-defence is contained in both Art 51 AND customary international law That the rules in Art 51 and customary international law overlap but are not exactly the same For stating that an ‘armed attack’ can occur by a state or by none-state actors: ‘the sending, by or behalf of a state of armed bands or groups which carry out acts which are of such gravity that they would amount to an actual armed attack conducted by the regular armed forces…”