THE RIGHT OF EsTINCZ AND

SEir-DEFENSE 93
Requisites of Right
Chapter 7 In Article 51 of the Charter of the United
EXISTENCE AND is provided that Nations, it
OF
THE RIGHT
SELF-DEFENSE
Nothing in
the present Charter shall
inherent right of individual or collective impair the
any armed attack occurs self-defense if
it is invested with cer. against a member of the
ONCE A STATE
comes into being, United Nations,until the Security Council
has
tain rights described as
fundamental. These are the right the measures necessary for the maintenance taken
the right of sovereignty and national peace and security. x xx of inter
of existence and selfLdefense,
of the right
equality, property
of
independence, the right diplomatie The presence of an "armed attack" to
and jurisdiction, and the right of legation or
justify the exer-
cise of the right of self-defense under this article
that forcible measures may be taken by a state suggests
intercourse.
of ex
The most important of these rights is the right face of 'a necessity of self-defense
only in the
considered the most compre- instant, overwhelming
istence and self-defense. It is and leaving no choice of means and no moment
because all its other for delib-
hensive of the attributes of the state
to flow or be derived from it' By virtu eration." Mere apprehended danger or any direct threat to
rights are
supposed the state does not, by itself
of this right,/the state may take such measures, including alone, warrant the employment
by that state of any force against a
the use of force, as may be necessary resist any
to danger suspected or potential
an enemy. The right may be resorted to only upon a clear
to its existence/ Such action being the
exercise of inner
ent right, it does not depend for its validity on the previous showing of a grave and actual danger to the secunty oT
the self-defensive measures must
tne
recognition of the state asserting it or on the consent o
na,
De limited
Turthermore,
other states.
by the necessity and kept clearly within it.
The right of self-defense has been expressly foremos
acknow This rather idealistic concept has, unfortunately, not
received wide support if the practice of
edged in a number of important ements,
cation. Although Grotius
states is any indi-
Nations. The vigorously inveighed against
among which is the Charter of the United
Draft Declaration
eclaration of the Rights and Duties of Sta defe anticipation of aggression as a ground for sel
Rights Duties ssjof it efense, would consideration by
n o r e practicalappear that his view been eroded
has
which was prepared by the International Law
Law Commisthat that at times "the best
at the request of the General Assembly, also affirms sellr defense is offernse." In espousing the opposite thesis, U.S.

"every State has the right of individual or collective

ecretary of War Elihu Root declared (and thereby difered
defense."

Caroline, 1 Whart, Sec. 50.

Ibid hrow
 INTSRNATIONAL LAW
THE RIGHT OF
ExSTEN AND
94 SELP-DErENSE 95
Daniel Webster, w who.
predecessor,
U.S. Secretary t r a d i t i o n a l view).
Japan in
in 190 1904
the ground that
on
with a
argued in
favorofthe
also had its eye on the Russia, its
country and mighteuse itenemy then,
years before
had y then,
right of sele against Japan.
Japan. its no it
e in 109eof of
as a base of

It is well
understoodthat the exercise of the
does extend the limits of
operations
the
vaded the small state of
vaded small state
For its
part,
Finlandpart,
of Finland and Russia in 1939 in-
and frequently it. The strongee sought to justify its act
protection may
of the
territorial jurisdiction
stataexercising
of an army, anothe
by
as Strategic measure to defend itself
A
from an anticipated
example would be the mobilization Every act'done by t German invasion. Only recently, the United
tacked Iraq on the ground that it was storing States at
frontier.
power immediately
across the Yet the countrv
within its territory. biological and
other power may be chemical weapons oI mass destruction that it was
threatened by the state
of facts is justified in protecting itselk
to use against the Americans, intending
by immediate war.

The above remarks, which were made more than half The Cuban Missile Crisis
a century ago, have derived added validity from the ad.
vances of modern science and
the development of more quarantine established by the United States in
The
1962, during the Cuban missile crisis, deserves
sophisticated methods of warfare. Indeed, the interconti. special rec
nental ballistic missiles have now made it possible for at
ollection. Declaring that "the peace of the world and the
least the so-called superpowers to inflict instant devasta-
security of the United States (had becen)
endangered by
reason of the establishment
tion without any previous overt indication of their inten- by the Sino-Soviet powers of an
offensive military capability
tions or even a physical invasion of the territory of the in Cuba, including bases for
ballistic missiles with a
enemy. One might well argue nowthat the very state of
North and South
potential range covering most of
armed preparedness of a nuclear power is per se a potent, America," President John F. Kennedy
interdicted the delivery of offensive
if latent, threat to the security of any country with which it weapons and associated
materials to Cuba, subject to the
may have some differences. Such a country would, under following instructions:
this view, have a right to beat the other to the draw, as it To enforce this order, the Secretary of Defense shall take
were, and justify its act under the right of self-defense. appropriate measures to prevent the delivery of prohibited ma-
terial to Cuba, employing the land, sea, and air forces of the
Fistory is replete with instances of the application of United States in
more cooperation with any forces that may be made
this pragmatic) concept of the right of self-defense available by other American States.
For example, the mobilization of Russia in 1914 brougne
The Secretary of Defense may take such regulations and
about the immediate declaration of war
against it by Ger 5ue such directives as he deems necessary to ensure the effec
+many,which asserted that its security had been imperile veness of this order, including the designation, within a rea
Sometimes, even innocent pawns have ble distance of Cuba, of prohibited or restricted zones and
object of hostilities in the become the au of prescribed routes.

necessity for self-defense, as interest

when
of actual or claime
Great Britain seize the
y vessel or craf which may be Rroceeding toward
Danish fleet in 1807 to Cuba a y be intercepted and
ite may be directed toidentify itself,
hands of the French prevent it from falling n cargo, equipment and stores and its ports of call,tostop, to
war. A similar
with whom the British n att e
to, submit to visit and search, or to proceed as directed. Any
fate befell
Korea when it waswercd
invaae by
o r craft which fails or refuses to respond to or comply
 INTERNATiONAL LAw
96 THE RIGHT OF EXISTENCE AND
SELF-DeFENSE 97
taken into
to being
shall be subject route to
with directions
whích it is
believed is e n
Cube and
Any vessel or craft o r
material may itself con tion therein of the United States, which does not
may be
carrying
prohíbited
possible, bedirected t tu #he same geograpical area as the other belong to
wherever pr members. Under
such material shall,
own
choice and shall be talee Article 5 of the North Atlantic Treaty
to another
destination ofits dírectíons, A l n
to obey such
custody if it
fails o r refuses
Bhall be sent into a port vessel
of the The Parties agree that an armed attack
craft taken into custody more of them in Europe or North America shallagainst one or
appropriate dísposítion.
or
be considered
United States for an attack against them all; and
this order, force shall
not be used consequently they agree that,
In carrying out
failure o r refusal to
comply with directions. orexcep if such an armed attack occurs, each of them, in exercise
of the
in case of right of individual or collective self-defense
recognized
cle 51 of the Charter of the United Nations, will assistArti
by
of Defense
directives of the Secretary 18sued
regulations or the
reasonable efforts have been made to com Party or Parties so attacked by taking forthwith, individually
hereunder, after
craft, or in case of self-defense
nicate them to the vessel and in concert with other parties, such action as it deems nec-
or

any case, force

shall be used only to the extent necessary.
Fortunately, the USSR backed down and thus
averted the outbreak of what would have
been World War
essary, including the use of armed force, to restore and main-
tain the security of the North Atlantic area.
The Balance of Power -o maintain peact

One reason for the organization of regional arrange

Regional Arrangements ments is to provide for the balance of power, which Vattel
described as "an arrangement of affairs so that no statee
Collective self-defense is recognízed not only ín Arti shall be in a position to have absolute mastery and do-
cle 51 of the Charter of the United Nations but also im minion over others."
pliedly in Article VII on Regional Arrangements. In Artice The Congress of Vienna of 1815, the Crimean War of
52, Sec. 1, it is provided that- 1854, the Congress of Berlin of 1878, the Triple Alliance
and the Triple Entente before World War I,
Nothing in the present Charter precludes the er
and the
groupings between the Allied and Axis Powers during
LStence of regional arrangements or agencies for aeu World War II were all motivated by balance of power con-
ing wth such matters relating to the maintenance 4 STderations and based on the fundamental right ot sel
oriat
international peace and security as are approp defense.
menb
for regional action, provided that such arrangens be-
Onil recently, most of the world was polarized
or 0gences and their activities are consistent the democracies and the communists, each camp
ween
Purposes and Principles of the United Nations wn the potential to destroy the other and the
rest of
were eyeball-to-
An example of such Organ nkind with it. The NATO countries
regional
zation of American States, whose agencyof u ltat
a 15
a l l with the Warsaw Pact countries.
The maintenance
to
authorized or ratified the Organ the Unite
the Un S D a l a n c e of power contributed
in a very real way
action taken by
States in the Cuban
crisis. The NATO may
be becitl

although it is not strictly regional because or afrtio Ibid.

 TH RiGHT
INTERNATIONAL LAWw
Ex1sTENCE AND SELF-DDEFENSE
99
98
peaca», (d) An attack by the
although, being an
armed
of faith n.i sea or
armed forces of a
air forces, or marine and air State on the land,
i n t e r n a t i o n a l peace the a r t i c l e s h of the fleets of another
ideal sought in (e) The use of armed forces of State;
vas far from the one State
which are
uwithin the territory of another State
United Nations. with the
receiving State, in agreement
contravention of the conditions of the
Aggression Defined in the provided
agreement any extension of their presence in such
or for
territory beyond the termination of the
of Aggression adopted h (The
agreement;
the Definition action of a State in allowing its territory, which
Following is December 14, 1974:
Assembly on it has placed at the disposal of another
the U.N. General
State, to be used by
that other State for perpetrating an act of
Article 1 third State;
aggression against a

force by a State against

(gThe sending by or on behalf of a State of armed force
u s e of armed
Aggression is the o r political independen,
against another State of such gravity as to amount to
the acts
territorial integrity listed above, or its substantial involvement therein.
the sovereignty, inconsistent with the
in any other m a n n e r
of another State, o r set out in this Definition.
United Nations, as Article 4
Charter of the

Article 2 The acts enumerated above are not exhaustive and the
Security Council may determine that other acts constitute ag.
force by a State in contravention
The first use of armed gression under the provisions of the Charter.
of
constitute prima facie evidence of an act
of the Charter shall
Council may, in conformity Article 5
aggression although the Security determination that an act of
with the Charter, conclude that a
would not be justified in the 1. No consideration of whatever nature, whether politi-
aggression has been committed
including the fact tha cal, economic, military or otherwise, may serve as a justifca-
light of other relevant circumstances, are not of sufiicent tion for aggression.
the acts concerned or their consequences
2. A waf of aggressigh is a crime against international
gravity.
peace. Aggression gives rise to international responsibility.
Article 3 3 No territorial acquisition or special advantage re
sulting from aggression is or shall be recognized as lawful
of a declaration
Any of the following acts, regardless
war shall, subject to and in accordance with the provisii Article 6
Article 2, qualify as an act of aggression: State
in
a) The invasion or attack by the armed forces or &
Nothing in this Definition shall be construed as any
in-
of the Charter,
of the territory of another State, or any military occupatr way enlarging or diminishing the scope of force
attack. the use
in which
however temporary, resulting from such invasion o Cuding its provisions concerning cases
is lawful.
any annexation by the use of force of the territory*
State or part thereof,
State
agains Article 7
(b) Bombardment by the arm forces ofa
the territory of another State; the in particular Article 3,
State
by
Nothing in this Definition, and
c The blockade of the ports or coasts of of aa
n any way prejudice
the right of self-determination,
armed forces/of another State
s and uba
 INTERNATTONAL LAw

100

as derived
from the Cha.
independence, er,of
and referred to
freedom and that right
deprived of in the
peoples forcibly nal
Internation al Law Co
Law Conc the
Principles of
Declaration on
Co-operation among States
inng
n
Friendly Relations
and
Charter of the United Nations,
Nations, Da
particulacoor
dCCor.
dance with the regimes or other form
under colonial and racist forms of
peoples of these peoples to strue
nor the right
alien domination;
and receive suPport, in accordan ce with
that end and to seek
Charter and in conformity with the above
the principles of the
mentioned Declaration.

Article 8

In their interpretation and application the above provi,

sions are interrelated and each provision should be construed
in the context of the other provision.

K2

(72