The right of self- defense in international law - Essay Example

?Does international law adequately address the right of self-defence? A critical analysis of use right of self- defence in international law. Introduction International laws are the primary governing rules of all nations. These rules direct the activities of countries and territories, helping ensure that the proper rights which relate to statehood and state protection are in place and are respected by all nations. The right to self-defence is specified under Article 51 of the UN Charter. It basically states that “nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security”1. Other details on the exercise of the right are further specified in the article which includes the need for members exercising self-defence to immediately report to the Security Council – actions which do not prevent the Council from taking the necessary action to maintain and restore peace and security. Based on this Charter, this paper shall discuss the following issue: Does international law adequately address the right to self-defence? This paper seeks to provide a critical analysis of the use of this right in international law. This paper is being carried out in order to establish a comprehensive analysis of this right, as well as its actual applications in relation to nation states. Discussion Article 51 of the UN Charter as cited above provides an acknowledgment of a nation’s right to self-defence. There is however an issue on whether or not, the international laws as a whole adequately addresses such right. The Nicaragua case is one of the landmark cases which set forth a discussion on this matter. In 1909, President Taft ordered that Nicaraguan President Jose Santos Zelaya be deposed from power. This ushered in very unstably times for Nicaragua which saw a huge contingent of marines landing in their country and occupying the railway line to Granada2. During this time, a pro-US government group was formed and in 1914, and the Bryan-Chamorro Treaty was signed. This treaty effectively granted to the US perpetual rights to the canal. This agreement prevented anyone else from building a canal in Nicaragua unless permitted by the US3. A peasant apprising led by Sandino was seen in 1927 against US occupation and against Nicaraguan authorities as well. This prompted the US Marines to withdraw, leaving the National Guard to handle internal security issues and the elections. The head of the Guards, Somoza Garcia ordered his troops to capture Sandino4. Somoza eventually became its President, staying in power as a dictator until 1979. His regime eventually fell with the embezzlement of million in dollars of foreign aid which were directed to the country as a result of the 1972 earthquake5. The Socialist Sandinista (FLSN) movement was against this corruption and started expanding their influence over the country, seeking support from all those interested. The US did not favour this socialist movement and under President Carter’s rule, they established support for the Somocistas, providing material and financial aid to them6. Reagan further continued this aid, also providing support to the Contras or the anti-Sandinista group. Financial and military support was provided to the group by Reagan, despite protests from Congress. This persisted despite the fact that no Nicaraguan armed attempts against the US were ever reported. Nicaragua argued before the international court that the US essentially supported military and paramilitary actions against Nicaragua, and as such violated Article 2(4) of the UN Charter; Articles 18 and 20 of the Charter of the Organization of American States; Article 8 of the Convention on Rights and Duties of States; Article I, Third of the Convention concerning Duties and Rights of States in the Event of Civil Strife7. Nicaragua demanded reparations for the acts of the US in terms of damage to property and its economy, as well as the lives of Nicaraguans lost due to US actions. The US argued that its actions were mostly in behalf of El Salvador, in response to an alleged attack by Nicaragua8. In effect, the US claimed to be acting in the exercise of the right to collective self-defence. El Salvador also supported such reasons. The final ruling of the ICJ set forth 291 points, mostly in favour of Nicaragua. In this judgment, the US was deemed to be involved in the unlawful use of force which included unprovoked attacks on various Nicaraguan facilities9. Such illegal actions also involved its mining of Nicaraguan ports; violation of Nicaraguan air space; training, arming, and financing of the Contras; and plotting to depose Nicaragua’s Sandinista ruler. Based on the above ruling, international law and the UN Charter recognizes a nation’s right of self-defence. Commentators claim that Article 51 only seeks to protect such a right during armed conflicts, and that other actions which relate to self-defence are prevented by Article 2(4)10. However, the more accepted opinion is that Article 51 supports the general right to self-defence and specifies procedures to adopt in instances of armed attacks. In effect, the legal use of self-defence in instances when armed attacks have not actually occurred is still very much allowed11. Worthy of note is the fact that not all instances of violence would relate to an actual armed violent attack. In the Nicaragua case, the ICJ has sought to clarify the level of force which is necessary to define armed attack. The customary laws on self-defence are primarily based on laws laid down during early diplomatic incidents involving the US and the UK, where US citizens who were involved in an attack on Canada, which was then a British colony, were killed12. This is the Caroline case and it established that in order for the right of self-defence to be justified, there had to be present a necessity, one which is instant, and which leaves no choice of means13. Moreover, the employed means must be proportional to the actions, prompted by necessity. This description has been accepted as important qualifications for the right to self-defence in the international realm14. In evaluating the situations which may justify the use of force, or the right to self-defence, this right is allowed in combating terrorism; and it is important to recognize such a right under Article 51 which sets forth that the right can exist only if armed attack occurs15. As such, states do not have the right to employ armed attacks to actions which do not come under the heading ‘armed attack.’ Moreover, not all employed force against nations may be qualified as an ‘armed attack’16. In qualifying whether using force is allowed in fighting terrorism, it is first important to determine whether terrorist attacks can be classed as armed attacks17. In the traditional sense, this right to self-defence only exists against states. In effect, terrorist attacks would not seemingly fall under the purview of armed attacks and self-defence18. However, in this regard, there is a need to consider the assumption deeper. Even as there seems to be no globally accepted qualification for an “armed attack,” an “armed attack” can be considered as such in instances when the force is directed towards the territorial integrity of the state19. Expert Cassese points out that armed attacks is a very serious attack on the territory of a state, including its citizens and agents, while they are in their country, and even while abroad. Moreover, an armed assault is considered an armed attack where the assault forms part of a violent aggressive attack, more than one which is isolated20. Once again, in the Nicaragua v. United States case, the ICJ ruled that armed attacks must be carried out on a significant scale, before they actually constitute armed attacks which allow for the application of collective self-defence21. It is crucial also to note that the court does not allow such acts which do not actually occur on a large scale. Simply, the distinction is made between a significant and a minor attack. Nevertheless, the court admitted that acts which are seen on a massive scale allow for the use of Article 51 of the UN Charter as justification. Article 51 is not the only provision which allows for the use of force in self-defence. Customary law has traditionally allowed this right and beyond Article 51 is justified, under the right of pre-emptive strike. Dinstein discusses that the right to self-defence is also given to states as a preventive remedy, as a means to anticipate armed attack22. This was especially apparent in the Caroline case, where in early 19th century Canada, anti-British attackers were carried out in the British territory. At this time, British soldiers entered the US from Canada with the aim of destroying the boat Caroline which was loaded with supplies to Canadian rioters23. Atleast one American was killed when the boat was burned and allowed to drift down the river. Britain justified its actions under self-defence due to the fact that the boat was supplying Canadian rebels24. Secretary of State Webster supported such actions, explaining that in the exercise of the right to self-defence, there must be no choice of means and no time to deliberate. He further justified that using force must not involve unreasonable or excessive actions. In effect, the customary definition of self-defence as a defence or in anticipation of an armed attack must be valid when the elements of necessity are present and the requirements of proportionality are met25. Webster’s definition implies something imminent, hence the addition of imminence in the justification of armed attacks. There is some issue on whether the UN Charter denies the customary right or further supports it. Various analysts argue the Charter prevents customary laws and in effect, denies the right to pre-emptive self-defence26. Others deny this claim and set forth that the terms “inherent right” in Article 51 prove that the Charter was meant to acknowledge and support the traditional right which was already seen before the establishment of the UN. Article 51 already sets forth that no provision of the current charter would impair the inherent right to self-defence. The customary rules therefore continue to exist, without interruption or impairment even after the ratification of the Charter27. This was further supported in the Nicaragua case where the court acknowledged the existence of collective self-defence within the customs and traditions of international laws. Even as the ICJ did not address the issue of pre-emptive first strike, the courts comments still support Webster’s definition of customary law rules which allow anticipatory self-defence being valid elements of international law28. The right to self-defence may therefore be valid where the Caroline elements exist, even as they seem to be beyond the provisions of Article 51. Traditional practice since the onset of the UN also establishes that based on Oppenheim’s International Law, the customary international laws remain valid and must exist based on the law set forth under the Charter29. The issue of self-defence has come up numerous times under the Security Council and in various instances, some discussions have been set on the right to anticipatory self-defence as ruled under the Caroline case30. In the Cuban Missile Crisis, the US justified the defensive quarantine of Cuba due to the strategic positioning of Soviet missiles in the country31. The US based its actions on the right to self-defence. Even while the legality of customary rules have not been specific in addressing the Security Council rules, the elements of Webster’s definition were considered in relation to US actions. In effect, there is an implied acknowledgment of customary rules which have remained relevant even with the existence of Article 51. In the Sixth Day War, Israel entered Arab territories by force based on an anticipated attack by Arab states32. The concept of anticipatory self-defence was not supported in this case because Israel’s actions were not objective and political defence was also lacking33. In effect, no clear agreed determination in this case was established. However, the fact that Israel still carried out its actions based on the rule of anticipatory self-defence is a strong acknowledgement of states’ support of this valid legal principle. No more has the right to anticipatory self-defence been more controversial and tested than in the actions of the US in relation to Iraq in its Operation Iraqi Freedom34. Much of the discussion on the US invasion of Iraq highlighted the need for such action, mostly based on the need for such actions based on the belief that persistent weapons inspections were a more viable choice35. Moreover, the ability of the US to establish that Iraq presented an imminent threat to national security was an important element of the discussion, based on the persistent attempts by the US and the UK governments to present reports in support of such actions36. As countries claimed that the military actions against Iraq were not justified, they also believed that they would have believed that the US actions would have been legal if the US was able to prove beyond reasonable doubt that Iraq indeed possess weapons of mass destruction and that it posed an imminent threat to the US and its allies37. This would have called for the US to establish that the threat presented by Iraq came under the purview of the Caroline case, and therefore needed the use of armed force and anticipatory self-defence. The above cases establish that as the laws which involve anticipatory self-defence are not completely established, there is sufficient basis for such a right under customary international law, and states have already accepted this as applicable to them. According to these cases, the customary right to self –defence as emphasized by the Caroline case, which supports anticipatory self-defence is still valid to this day and is complementary to the provisions of Article 5138. This is highly supported by states in their practice since the Caroline case and since the ratification of the UN Charter. Conclusion There are still opposing discussions however on the limitations of customary laws. One major concern is that of the extent of the applications of self-defence. This discussion has especially been brought to the fore especially during the US’s Operation Iraqi Freedom. Traditionally, much focus has been given to the two-fold elements of necessity and imminence, further suggesting that pre-emptive self-defence can be legally implemented only when such essential elements are met. The current concept of imminence has however been made more complicated based on perceived threats to security which dominate the world today. The issues of WMDs and terrorism are now making the application of these provisions very complicated. The imminence of terrorist attacks is very difficult to prove, because there is no physical manifestation of the actions which can definitely prove imminent attack, as in the gathering of troops along a border. Due to such imminent concerns, the US is of the position that the principle of imminence must be applied to the threats which all countries are now facing. This policy is an offshoot of the September 11 attacks and the aftermath of such attacks. However, the challenges which arise from these policies are significant. One of these challenges is the fact that the policy may be open to abuse. In effect, the right to pre-emptive self-defence, if not applied properly may be used by states to justify aggression against other states or parties. Moreover, a dangerous precedent may be set with contending countries attacking each other and using pre-emptive strike as justification. On a case to case basis however, it is still possible for the ICJ to rule over the legality of pre-emptive strikes and set forth adequate indications which justify or fail to justify actions. Reference A. Arend. International Law and the Preemptive Use of Military Force. The Washington Quarterly, Vol. 26, No. 2 (2003), p. 89. Article 51, UN Charter S. Barbour & Z. Salzman. The tangled web: the right of self-defence against non-state actors in the armed activities case. 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Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1995), p. 238 R. Jennings. International Lawyers and the Progressive Development of International Law, (1996) in J. Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubiszewski 416. J. Kittrich. The Right of Individual Self-Defense in Public International Law. (New York: Logos Verlag Berlin, 2008), 153 W. Knut. The Regime of Anastasio Somoza, 1936-1956. (North Carolina: The University of North Carolina Press, 1993), p. 10. H. Maier. Appraisals Of The ICJ's Decision: Nicaragua V. United States (Merits). The American Society of International Law, Vol. 81, No.1 (1987), 77 M. Popiel. Redrafting the right of self-defense in response to international terrorism. Journal of International Law. viewed 20 August 2011 from http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf T. Raimo. 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