Foundations Of International Law - 10

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Article 51, UN Charter

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Topic: Self-defense
"Nothing in the present Charter shall impair the inherend right of individual or collective self-defense if an armed attack occurs against a Member of the UN, until the SC has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time as it deems necessary in order to maintain or restore international peace and security"

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Preconditions to Article 51, UN Charter

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1. States has a procedural obligation to immediately report to the SC its measures of self-defense

2. States have a time limit. They can only act until the Security Council has enacted efficient and necessary measures to maintain peace and security

3. States can only react to an armed attack

4. Must be proportionally appropriate

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UNGA Resolution 3314

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Topic: Definition of Aggression
Adopted without a vote
Includes a list of acts that are regarded by the GA as amounting to aggression

Article 3 (a): Invasion or attack of the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof

(b) Bombardment by the armed forces of a State against the territory of anther State or the use of any weapons by a State against the territory of another State

Must not be isolated examples of use of force that cannot be regarded as having a certain magnitude to be considered an armed attack

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UN - Adopted without a vote

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Presumption that the resolution reflects the general consensus of the members, even if it is possible for one state to point out that it is not in perfect agreement

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Exceptions to use of force by State

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1. Former enemy states of the UN (Italy, Germany, Japan)
This is envisaged by article 53 and 107 in the UN Charter
(UNGA Res. 49/58 regarded the provisions of 53 and 107 as obsolete, enacted in 1994)

2. Self-defense: Article 51

3. Use by SC, or authorization of force by SC: Article 39

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Gray zones for determining use of force

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1. Aggression against merchant fleets: NATO treaty envisages attacks against merchant fleets an "armed attack"
2. Aggression against embassies: Technically territory of the host state, not the state of origin
3. Aggression directed against civilian people who are abroad in a third state (case of Russian Federation aggression deployed in Georgia)

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Russian War in Georgia: 2008

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The Russian Federation claimed the invasion was in self-defense because Georgian forces launched a military operation in South Ossetia and killed about 1500 civilians, most of them Russians. This is a gray area concerning the use of force

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1998 U.S. Embassy Bombings

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Terrorist bombings of American embassies in Tanzania and Kenya in 1998, U.S. thought the link was with Al-Qaeda and launched a series of missiles at both Sudan and Afghanistan. This is a gray area concerning the use of force

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Article 39, UN Charter

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Topic: Security Council can restore peace

"The SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."

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Claims to self-defense (types of self-defense)

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1. Under way: An actual attack

2. Anticipatory: An attack is imminent, this has a long tradition in ilaw--> Israel invaded Egypt because they believed they were planning an attack against Israel --1956 Suez Crisis

3. Preemptive: Possible attack-->New concept in ilaw that has been mainly enacted by the Bush Administration as a reaction to new terrorist threats coming from Al-Qaeda. This shift is clearly outlined in the National Security Strategy, 2002, often referred to as the Bush Doctrine, or the doctrine of preemption