SELF-DEFENCE

United Nations Law

The legal requirements of Self-defence

United Nations Law

The legal requirements of Self-defence

This article attempts to demonstrate that the law of self-defence in the UN-Charter is uncertain. Nobody doubts that the Charter permits self-defence, but the precise modalities of the right are unclear. This is not an exposé of the whole spectrum of issues that can arise or have arisen. Rather, the article considers a few examples and analyses the structure of the arguments scholars and tribunals employ in order to find out where our limits of 'legal cognition' lie. Several topics are examined, inter alia, whether an 'armed attack' is a necessary condition for the exercise of self-defence under the UN-Charter; the actions qualifying as armed attack; whether an armed attack has to occur or whether the victim state merely reasonably has to expect it to occur; and whether individuals can commit an armed attack.

It will become clear throughout the article that the closer one looks at the law of self-defence, the less certain the law becomes. I submit that the uncertainty of the law on self-defence is caused by a lack of legal regulation - there is only so much that Article 51 can tell us. Scholars importing their own ideas of what scope self-defence should have do not enhance our understanding of the positive law, their designs simply are not law.

Article 51 - The Right to Self-Defence

Article 51 permits self-defence to be used as an exception to the general prohibition on the use of force and provides:

“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 the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to 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”.

Therefore, according to Article 51, there seem to be two conditions for justified self-defence: the occurrence of an 'armed attack' and the duty to report any action taken in self-defence to the Security Council. The fact that an armed attack must have already occurred is particularly significant in the context of outer space. Space-based assets such as surveillance satellites provide an early warning system that can alert states to an imminent attack before it actually occurs. With the precision and ease of space-based systems, it would be tempting for a state to pre-empt an attack by striking first and then claiming self-defence.

This has led Gerardine Goh to suggest that the requirement of an actual occurrence of an armed attack serves to curb trigger happy states from striking without cause. It also serves to maintain international peace and security by preventing a situation that could spiral out of control into ...