The Doctrine of Self Defence in International Law - Essay Example

Explain and comment upon the proposition that the scope of the doctrine of self defence in international law is dependent on reading the United Nations Charter Article 51 in light of the customary international law. The relationship between international law and its governance of the state use of force has remained contentious under international law, particularly due to the uneasy relationship between the UN Charter and customary international law principles. The United Nations Charter 19451 (the Charter) was enacted as a direct result of the Second World War and the objectives of the Charter were historically contextual in highlighting a multilateral state approach to human rights2. In particular, the Charter specifically referred to the UN’s central objective as working towards preventing conflict and to ensure co-operation between member states with a view towards facilitation peaceful conflict resolution3. Prior to the Charter, the use of force was primarily regulated by customary legal principles and there was no uniform prohibition on the unilateral use of force4. The UN Charter sought to alter the scope for abuse of these principles under Article 2(4) of the UN Charter, which implemented a general ban on the use of unilateral force5. The prohibition was officially enshrined in Article 2(4) of the Charter6. Notwithstanding this prima facie prohibition on the unilateral use of force, the boundaries of Article 2(4)’s application in practice have remained unclear fuelling debate as to how efficacious Article 2(4) has been as a legal protection against the unilateral use of force particularly in light of the Article 51 right to self defence7. This is further highlighted by Reisman’s view that Article 2(4) whilst reflecting the international community’s bias against the use of unilateral force, was never intended to operate as an absolute ban8. Reisman reiterates this proposition by commenting that: “Article 2(4) was never an independent ethical imperative of pacifism9”. Arguably, this is supported by the express wording of Article 2(4) which implies that force is permissible solely insofar as it is consistent with the United Nations’ “Purposes”10. However, the definition of “purpose of the United Nations” is unclear, which has enabled scope for abuse of the Article 51 right11. Moreover, the changing nature of the global order after the Cold War and the aftermath of September 11 has created novel conflict scenarios and significantly reshaped the dynamics of conventional warfare12. In turn this has also reshaped the theoretical assumptions pertaining to international relations13. For example, it is arguable that in the immediate aftermath of September 11, the Bush administration utilised Article 51 and the implied discretion of Article 2(4) as a basis for expanding the boundaries of force under international law in using Article 51 to justify pre-emptive military offensive strategy in Afghanistan and Operation Iraqi Freedom14. Furthermore, an important issue relating to the use of force is the interrelationship between force and the state right to self defence under Article 51. Arguably this has been exemplified by debate regarding the legitimacy of US action in Iraq and using Article 51 to sanction military action against non-state actors believed to be Al-Qaeda in Pakistan15. The ambiguity regarding the boundaries of the self defence right under Article 51 is further perpetuated customary international law. From the International Court of Justice (ICJ) perspective, the judicial rationale in the Nicaragua case16suggests that the right to self defence under Article 51 is compatible with customary legal principles and suggests that the Charter provisions merely serve to reinforce the established customary legal right to self defence. Furthermore, the ICJ suggested that the right in Article 51 was dependent on customary legal principles on the basis that: “This reference to customary law is contained in the text of Article 51.... the Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is an inherent right of self defence”17. This therefore suggests that the scope of the Article 51 right is based on the inherent right under customary law. The objective of this paper is to critically evaluate the extent how far the applicability of self defence under international law is dependent on the relationship between Article 51 and customary international law principles. It is submitted at the outset that within the contemporary framework of international relations, the scope of the right to self defence is fundamentally important in terms of state accountability, particularly as the recent foreign policy measures of the US have suggested an ad hoc extension of the Article 51 right to exercise the right to self defence against non-state sectors. Therefore, whilst the ICJ case law appears to define the Article 51 right within the framework of the “inherent right” to self defence under customary law; the uncertainty as to the boundaries of this inherent right has created problems as to the exact scope of the right to self defence under international law. In considering the right to self-defence under international law, I shall consider the right to self defence under Article 51 of the UN Charter particularly in context of the applicability of Article 2(4) in practice as a protection against unilateral force in the international community. In considering the right to self-defence under international law, this analysis will further consider the position that if Article 2(4) is not indeed an outright ban, whether its restriction on use of unilateral force in international law has actually influenced member state compliance in international conflict and shaped the parameters of the right to self-defence against non-state sectors. The initial problem with Article 2(4) being interpreted as an absolute ban on unilateral force is the ambiguity in its wording particularly with reference to the “purpose of the United Nations” caveat. Not only does this suggest that the purported prohibition is not absolute, it also creates scope for abuse of this potential loophole particularly as the international community has failed to provide adequate guidelines in relation to the legitimate parameters of force under international law18. Alternatively, the crime of aggression would suggest that Article 2(4) was intended as an absolute ban on the use of unilateral force, however the problem with this interpretation is that there is no uniform consensus on what constitutes an act of aggression under international law. In turn, this lacuna within the international legal framework, coupled with the Security Council (SC) restrictions on the parameters of International Criminal Court (ICC) jurisdiction undermines the efficacy of the ban on aggression in abusing the right to self defence19. Under United Nations General Assembly Resolution 3314 (1974)20, the crime of aggression is expressed in terms of the state being culpable for the offence. However, the central problem in applying this in practice is that the international community has not adopted a universally binding definition of an act of aggression. Moreover, this legal uncertainty is perpetuated by the lack of distinction between state and individual responsibility and the definition of individual within the aggression model21. As aggression deals with crimes by states and not individuals, it has been opined that failure to take account of individual acts effectively negates the utility of aggression22. Again this has lent itself to state exploitation of the Article 51 right, which is further enabled by the fact Article 39 of the Charter confers wide discretion to the Security Council (SC) to rule on acts of aggression23. On the one hand, arguably this is necessary to flexibility due to the continuing changing nature of warfare, however it leaves open the extent of the right to self defence and leaves open the difficult question as to when justifications of self defence actually amount to aggression. Furthermore, this perpetuated by the fact that the Nuremberg Trials asserted the requirement of the leadership principles as a pre-requisite for criminal liability for aggression24. However, the intrinsic flaw of the leadership principle is the practical realities of bringing state leaders to account under international law, which in turn undermines the efficacy of the international legal system as a genuine recourse for accountability. In turn Franck highlights the scope for uncertainty regarding the extent to which the self defence right can be used under international law and abuse, particularly against non-state sectors25. For example in the case of R v Jones26, the House of Lords refused an appeal on behalf of peace protesters claiming that the Iraqi war was unlawful as an act of aggression in breach of international law. However, Lord Bingham asserted that the international crime of aggression was not an offence under English law and as such the House of Lords lacked jurisdiction to advise on the legality of the war27. If this rationale is considered in the context of the right to self defence under international law, the domestic assertion of no jurisdiction appears to grant states with blanket immunity from prosecution and carte blanche to use unilateral force event against non-state actors on the basis of self defence28. Furthermore, this position would appear to be endorsed by the limitation of Article 2(4) and the ambiguity regarding the scope of the “inherent right” to self defence under customary international law. Furthermore, the enforcement of the Charter provision is inherently dependent on member state adherence and enforcement29. On this basis, the Jones decision raises wider issues of conflict regarding the relationship between rights to self defence under international law and national law. This dichotomy between international and national law is further perpetuated by the fact that members of the UN have never been able to agree on the exact parameters of Article 2(4); and Shaw highlights how the nature of contemporary conflict scenarios have led to further questions regarding the international view of Article 2(4) by the international community particularly in light of Article 5130. Alternatively, some commentators posit that it is unrealistic to expect adherence to an absolute prohibition particularly in light of the increasingly unilateralist approach to foreign policy inter international relations31. Furthermore, it was arguably too ambitious a presumption to interpret Article 2(4) as an absolute ban due to the fact that its historical context ignores the continuous evolution of conflict within the complex dynamic of evolving international relations32. It is perhaps more realistic to view Article 2(4) as an honourable attempt to prevent the atrocities of the Second World War, which is bolstered by the Article 51 exception of necessary self defence or SC authorisation in order to restore international peace and security under Chapter VII33. This is further evidenced by the scope for self defence under principles of customary international law, which is discussed further below The ICJ undertakes a pivotal role in applying the Charter rules in relation to the use of force34. Furthermore, Professor Simma posits that the Charter provisions regarding the use of force are fundamental to the international collective consciousness in moving towards mutuality in security compliance.35 In turn Professor Simma suggests that the ICJ effectively is used by international community to sanction the use of force through ad hoc case by case determinations. However, ICJ rulings on legitimate use of force are often ad hoc decisions after the event, which in turn serves to question the efficacy of Charter provisions if the ICJ is being used to legitimate military operations after the event on the basis of Article 51. Additionally, authorisation for force is achieved through sanction by the Security Council under Article 39 and Article 4236. However, there is no consistency due to the lack of clarity on what constitutes legitimate force. Additionally, the operation of the SC is shaped by where the balance of power lies, which in turn perpetuates inconsistency in the SC decision making process due to political concessions and trade-offs37. Furthermore, the Charter provisions will not always be applicable as non-UN members will not have to seek sanction from the SC and will be governed by the ambiguous provisions of customary international law in relation to the use of force38. This is further evidenced by Article 51 of the Charter39. Cassese’s literal approach of Article 51 infers that the absence of the term “force” supports the argument that the Article 2(4) ban is outright as the self-defence provision only enables defence measures to be taken in the event of an armed attack40. Cassese argues that in the absence of an armed attack, force is prohibited41. However, Dixon and McCorquodale suggest that the customary legal principles apply irrespective of the Charter and that if anything the customary legal principles pertaining to self defence are wider than the Article 51 right on the basis of the judicial rationale in the Nicaragua case42. On the other hand, Dixon and McCorquodale acknowledge the converse academic discourse suggesting that the customary rules are to be interpreted within the scope of Article 5143. In turn, the polarised discourse regarding the scope of Article 51 and its relationship with customary law only serves to perpetuate legal uncertainty, which undermines the need for state co-operation and consistency at international law. For example, in the Caroline case44 established the principles in relation to when force could be justified on grounds of self defence, introducing the two-stage test of necessity and proportionality. A distinction was made between the use of force as a means of self-defence from those that constituted reprisal actions. These general principles are reflected in the “inherent” right to self-defence as enshrined in Article 51. Furthermore, the landmark ICJ decision in Nicaragua v USA45, asserted that “the Charter testifies to the existence of the right to collective self-defence in customary international law46” states did not have to demonstrate that they were directly impacted by a conflict in order to participate in the innate right to self defence. The dictum in Nicaragua also suggested that as soon as the SC took action under Article 39, the operation of the right to self defence gave way to the priority of SC action under UN peacekeeping provisions. Additionally, the Nicaragua case determined that if the purpose of exercising self defence had been achieved or ceased, then the right to self defence also ceased47. Accordingly, under customary law the principles have been applied on a case by case basis. For example, in Congo v Uganda48, the ICJ determined that Uganda’s military action against non-state actors in the Congo was in contravention of the ban on unilateral force for violating territorial boundaries. The ICJ further rejected Uganda’s submitted defence of self defence. The rationale of the ICJ suggested that another state’s safe harbour to non state actors did not justify the use of force on the basis of the state right to self defence. However, the result of the Uganda decision is clearly at odds with the US offensive against alleged Al-Qaeda operatives in Pakistan. Indeed, post September 11 the US have arguably manipulated the ICJ dictum in the Uganda case that self defence against non-state sectors was only justifiable where it could be established that such non-state sectors had engaged in terrorism49. However, the case did not explore the degree of force required to classify an “armed attack”. Furthermore, if we follow the approach that the Charter has superseded customary law, then we are left in a position where the Charter does not define “armed attack” or circumstances where self-defence is justified and the legal position is now reliant on ad hoc post-conflict decisions of the ICJ50. Customary law on the other hand had established principles prior to the Charter and the Nicaragua case expressly suggests that ICJ opinion that Article 51 is based on the inherent right under customary legal principles, which are in fact much wider in relation to the right to use force on grounds of self defence. This leaves the Charter principles open to abuse, thereby enabling states in an increasingly unilateral approach to foreign policy to use Article 51 to justify force on grounds of self defence51. A prime example is the US and UK conduct with regard to Afghanistan and Operation Iraqi Freedom when failing to secure SC support. Both states cited Article 51 to provide legal justification for their military action in Afghanistan52. Therefore, in the absence of clarification as to what constitutes legal force as self-defence by the international community, the parameters of Article 51 continue to widen on an ad hoc basis, which is further facilitated by the ambiguity regarding the wider self defence under customary international law as hinted at by the ICJ. Not only does this lend itself to abuse by powerful states within the international hierarchy, the contemporary political climate and changing nature of warfare has left open important questions as to the customary international legal extrapolation of the “inherent” state right to self defence. Therefore, in conclusion, despite the clear intentions of Article 2(4) to prevent human rights abuses on the scale of the Second World War, it was unrealistic to view the prohibition as absolute53. However, the Charter itself has no definitive guide on what constitutes legitimate force and the ICJ has failed to clarify the boundaries of legal force, leaving potential for abuse by member states in justifying force in international conflict on grounds of the inherent state right to self defence. The global community is now far removed from the post-war world that gave birth to the Charter and the problem is exacerbated by the influence of political heavyweights within the SC and creates scope for a selective approach to legitimate force54. Whilst unrealistic to impose an absolute ban on use of force in international conflict, it is essential for the rule of law principle that clarification is sought in relation to the application of Article 2(4) and corresponding customary law particularly in context of the right to self-defence under Article 51. Bibliography M, Both., “Terrorism and the Legality of Pre-emptive Force”, (2003) Vol. 14 No.2 EHIL 227 A, Cassese., International Law, (2nd Edition. Oxford University Press, 2005). A. Cassese., “Ex injuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures In The World Community?” (1999) 10 European Journal of International Law 23 M. Dixon., Textbook on International Law,(6th Edition. Oxford University Press, 2007) M, Dixon., and R, McCorquodale., Cases and Materials on International Law. (Oxford University Press B, Ferencz., “Can Aggression be deterred by law?” (1999) Pace International Law Review. T, Franck., “Who Killed Article 2(4)?” (1970), 64, AJIL 809 Thomas Franck, Recourse to the Use of Force: State Action against threats and armed attack (Cambridge: Cambridge University Press, 2002). Christine Gray, “The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force After Nicaragua” (2003), European Journal of International Law, Volume 14, No 5 (2003) 867-906. Rosalyn Higgins, Problems & Process, International Law and How We Use It, (Oxford University Press, 1995) Patrick Kelly, “The Twilight of Customary International Law” (2000). 40 VA. Journal of International Law. 44 W M. Reisman, “Coercion and Self-determination: Construing Charter Article 2(4), (1984) Journal of International Law, Volume 78, No.3 (Jul, 1984), pp.642-645. W. M. Reisman, Allocating competences to use coercion in the Post Cold War World: Practices, Conditions and Prospects, in Lori Fisler Damrosch and David J Scheffer (eds) Law and Force in the New International Order (Bolder, Westview Press, 1991). Malcolm Shaw, International law, (Sixth Edition, Cambridge University Press, 2008 B, Simma., “Nato, the UN and the Use of Force: Legal Aspects” (1999) European Journal of International Law. William Slomanson, Fundamental Perspectives on International Law, (Wadsworth Publishing, 6th Edition, 2010). H, Steiner., and P, Alston., International Human Rights in Context. (2nd Edition. Clarendon Press, 2000). Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (Clark NJ: Lawbook Exchange, 2006). John Strawson, Provoking International Law: War and Regime Change in Iraq, in Fluer Johns, Richard Joyce and Sundhya Pahaja (eds.), Events: The Force of International Law (Abingdon and New York: Routledge Cavendish, 2010), James Summers, People and International Law: how nationalism and self-determination shape a Contemporary Law of Nations (Martinus Nijhoff Publishers 2007) Legislation The Charter of the United Nations (1945) available at www.un.org/en/documents/charter/index.shtml accessed December 2010. Charter of the International Military Tribunal, 8 August 1945 available at www.unhcr.org accessed December 2010. RESEARCH DIARY 1.1. Research Objectives The initial purpose of the research in this paper was to evaluate the relationship between the provisions of Article 51 of the United Nations Charter and customary international legal principles to consider the scope of the rights of states to exercise the right to self defence. There has often been conflicting opinions in academic discourse with regard to the interaction of UN Charter provisions with established customary legal principles at international level. The question referred to the proposition that the right to self defence under Article 51 requires Article 51 to be read in light of customary international law, which suggests that the Article 51 right is qualified by customary legal principles. In approaching the research question, I felt it was vital to also consider the international legal principles governing the legitimate use of force as the boundaries between the use of force, acts of aggression and the right to self defence are not always clear and have lent themselves to abuse particularly within the contemporary framework of international relations. Therefore, in approaching the research question I felt it was necessary to consider Article 51 and customary legal principles within a wider literary understanding and in particular, consider the following: 1) Historical context of the Charter provisions and the express provisions of Article 51; 2) The customary international legal principles regarding the inherent right to self defence and how these differ to Article 51; 3) Evaluate the central legal cases of the ICJ to evaluate the judicial approach to the relationship between Article 51 and customary legal principles regarding the right to self defence; 4) Consider the legal provisions governing the use of force under international law, with specific reference to Article 2(4) of the UN Charter and the international crime of aggression; and 5) Evaluate the contemporary framework of international relations and balance of power within the Security Council to see how the boundaries between legitimate self defence and illegal force have been tested in practice. As the central objective of the paper was to consider how far the Article 51 Charter right to self defence was to be applied in light of the customary law framework, I used customary law as the starting point to determine the parameters of the self defence right within the legal principles set down by customary law. To this end, it was necessary to evaluate leading case law regarding self defence and the relationship between customary law and Article 51. Firstly, the Caroline case set out the test for self defence, which demonstrated the judicial difficulty in formulating a definitive framework and boundary of the right. Secondly, the Nicaragua case was an important case I reviewed as it specifically discussed the relationship between Article 51 and customary legal principles. Interestingly, the Nicaragua case would appear to support the proposition that the right to self defence under Article 51 has to be interpreted in light of the customary law principles. However, the Nicaragua case framed customary international legal principles on the basis of an inherent right of states to self defence. Therefore, I found when looking at the case law that whilst the Article 51 right has been interpreted by the ICJ as applying within the framework of self defence under customary law; the customary law principles remain ambiguous as to the scope of self defence. As a result of evaluating the case law I found that overall great uncertainty remains regarding the scope of the right to self defence, which in turn lent itself to abuse in light of other Charter provisions regarding the legitimate boundaries of the right to use force under international law. In further reviewing this observation, I researched Article 2(4) of the UN Charter and in found Reisman’s work useful in evaluating the parameters of Article 2(4) and his suggestion that Article 2(4) was never meant to be interpreted as an absolute ban on the use of force under international law. On the basis of my research of Article 2(4) and Reisman’s discourse on the topic, I concluded that ultimately the scope of the use of force and the right to self defence remained unclear under international law notwithstanding the ICJ opinion that Article 51 was to be interpreted and applied in accordance with customary law. Additionally, I concluded that this ambiguity lent itself to abuse by states using self defence as a justification for combat under international law. In further considering this argument, I found it interesting and useful to compare both pre and post September 11 sources regarding the right to self defence. Firstly, Rosalyn Higgins “Problems & Process, International Law and How We Use it” (1995) was an extremely useful in highlighting the uneasy relationship between Charter provisions and customary law pertaining to the right to self defence. Furthermore, Higgins’ review of this area reinforced my conclusions from reviewing the case law that main problem in applying the right to self defence consistently was the uncertainty under customary law. For example, Higgins specifically referred to the fact that while the ICJ has framed the Charter provisions as applying and endorsing customary law principles; it had continued to make ad hoc decisions regarding self defence, which undermined legal certainty. Similarly, research undertaken in the post September 11 framework such as Both (2003) and Shaw (2008) highlighted the same problems of uncertainty regarding the boundaries of the state right to self defence. As a result, this research led me to conclude that the central problem was that the entrenched legal principles and Charter provisions were ultimately a product of their historical context and therefore created problems of applying static legal principles to an intrinsically complex framework of international relations, which continues to evolve. 2.2. Research Basis of Paper: Research Philosophies In considering a coherent and measured approach to the subject title which covered a broad range of different sources relating to the topic, it was vital to adopt and implement a structured and multiple stage strategy; which was utilised to produce the information needed and put together in reviewing the interrelationship between Article 51 and customary law. This was in turn used as a starting point to formulate and develop an in depth analysis of the relevant issues such as the discussion of Article 2(4) of the UN Charter and the law of aggression, in order to formulate the central arguments set out in the paper. The first stage was to identify the topic and clarify the parameters of the research question, which was to evaluate the proposition that the right to self defence under Article 51 is dependent on a reading of Article 51 in light of customary law. Furthermore, the complex issues relating to the relationship between self defence and the legitimate use of force under international law has fuelled debate as to the actual scope of the right to self defence, which is fundamental to ascertain within the complex international framework particularly in light of the globalisation of terrorism. This is further evidenced by the academic discourse referring to the recent actions of the US and the UK in Iraq as evidence of the potential for abuse of the Article 51 right to legitimate combative action against non-state sectors. To this end, it was vital to undertake a contextual and lateral analysis of the common trends and areas of research with a detailed literature review of the central issues. Additionally, it was important to undertake an analysis of the relationship between Article 51 and customary law and consider the wider international legal and political framework within which the right to self defence operates. Secondly, I undertook preliminary background research, utilising the following primary sources: 1) References cited in the Bibliography; and 2) Official legislation and international treaties such as the Charter of the United Nations 1945. The preliminary research stage also involved undertaking use of spider diagrams to consider the relationship between the various factors associated with the right to self defence under international law. Furthermore, I undertook mind mapping in order to develop areas of research which may be followed going forward, which is demonstrated by Figure 1 below: Figure 1 The second stage formed the foundation for the literature review, which involved identification of relevant areas of research. Additionally, I utilised the literature review along with the findings in the preliminary research to ascertain trends and highlight perceived problem areas to formulate the central legal arguments. This involved the use of library cataloguing in order to identify appropriate books and media. This further included the use of established research methodology tools such as OPAC catalogues where all books and other media, as listed using the Dewey decimal classification system. Furthermore where sources were found, I researched the bibliography or the references list to evaluate the literature that had been utilised in the preparation and searched backwards to ascertain more useful and relevant resources. In particular, the use of periodicals, academic abstract services and indexes also assisted in further pinpointing research papers as well as up to date or detailed reports which were not found in academic books on the subject. For example, the Oxford University Abstracts service (www.oxfordabstracts.com) enables cost effective, subject specific abstract and paper management, which is utilised by academic institutions, societies, associations and professional conference organisers worldwide. As part of the preliminary research phase, the use of Internet data services such as INFOTRAC was particularly useful (for the comparative analysis with international data) as the system includes online catalogues of articles that can be searched by subject or key word. Accordingly, in context of research methodology, the grounded theory model was adopted, which rather “than seeking to prove a hypothesis looks to determine the facts and allow the theory to emerge from the facts” (Bryman 2001). Read More