International Islamic University Islamabad

Huzaifa Shaukat

5070FSL/LLB/F17

Section B

RIGHT OF SELF-DEFENCE OF STATES

Self-defense is universally accepted as an exception to the general

prohibition of

the use of force in international law. Article 51 of UN Charter states

Nothing in the present Charter shall impair the inherent right of

individual and collective self- defence if an armed attack occurs against

a

Member of the United Nations, until the Security Council has taken

measures necessary to maintain international peace and security.

Measures

taken by Members in the exercise of this right of self-defence shall be

immediately reported to the Security Council....

Article 51 prescribes that “nothing in the present Charter shall impair

the inherent
right of individual and collective self-defence if an armed attack
occurs.The

meaning is clear and unambiguous. The right of self-defence is

restricted to a

case where there is an actual armed attack against the State.

School of thoughts:
But here again there are two differing views: permissive and restrictive.

Permissive school

The ‘permissive school’ maintains that Article 51 does not restrict the
right of self-

defence to cases of armed attack only and that States have wider rights
of self-

defence permitted by customary international law.

Bowett. for example, argues that:

“The travaux pr éparatoires suggests that the Article should safeguard

the right of

self- defence, not restrict it. ...The right implicitly excepted was not
confined to

reaction to ‘armed attack’ but permitted of certain substantive rights.”

When American legal scholars debate the use of force, ‘hawks’ and
‘doves’ alike

tend to accept that Article 51 permits states to use force in some

settings that

would be categorically excluded under conventional restrictivism,

including in

response to imminent attacks from other states. The permissive school

regards

the Caroline case as the classic formulation of customary international

law on self-

defence.

Restrictive school
The ‘restrictive school’ maintains that Article 51 restricts the right of
self-defence to

cases of armed attack only.

Philip C. Jessup writes:

“Article 51 of the Charter suggests a further limitation on the right of

self-defence:

it may be exercised only ‘if an armed attack occurs’. This restriction in

Article 51
very definitely narrows the freedom of action which States had under
traditional

international law."

‘Restrictive’ approach to self-defence generally assert that Article 51 of

the UN

Charter permits states to use force only after another state has
launched an

“armed attack” of sufficient magnitude to satisfy the event threshold

required for

responsive military action. Scholars who operate within this tradition

emphasize

the Charter’s objective “to strengthen universal peace” by limiting the

circumstances in which states may use force unilaterally to resolve their

disputes.

In effect, the requirement of an “armed attack” advances this objective

by allowing

states to use force without the consent of the UN Security Council only
if an act of

aggression by another state has left them with no plausible means

short of military

action to safeguard their “territorial integrity or political independence.

American legal scholars who seek to constrain the use of force tend to
focus on

legal principles derived from sources outside Article 51. These

principles include

substantive requirements of necessity, proportionality, and cost-benefit

reasonableness. American ‘restrictivists’ also emphasize procedural

requirements

for self-defence such as public deliberation, transparency, and robust

burdens of

proof. Although these substantive and procedural principles do not

appear

explicitly in the Charter’s text, American restrictivists argue that these

principles

represent binding norms of customary international law (some

incorporated into

jus ad bellum from jus in bello), general principles of law accepted by

the

international community of states, and basic principles of legality that

are

constitutive of international legal order.

Restrictive view is the established law.

A treaty is as a general rule to be interpreted in accordance with the
ordinary
meaning to be given to the terms of the treaty in their context (Art.
31).In Article

51, the expression ‘if an armed attack occurs’ is very clear and
unambiguous. The

textual interpretation, therefore, shall prevail and travaux

preparatories has no

relevance here.It is in conformity with the main purpose of the UN: non
use

of force: Article 2(4).

It is also accepted by the overwhelming majority of jurists and

supported by state

practice.

As far as the armed attack is concerned ,In the Nicaragua case, the
World Court

ruled that

• “An armed attack must be understood as including not merely action

by regular

armed forces across an international border, but also 'the sending by or

on behalf

of a State of armed bands, groups, irregulars or mercenaries, which

carry out acts

of armed forces against another State of such gravity as to amount to

(inter alia)
an actual armed attack conducted by regular forces, or its substantial
involvement

therein, But the Court does not believe that the concept of armed
attack includes

not only acts by armed bands where such acts occur on a significant
scale but

also assistance to rebels in the form of provisions of weapons or

logistical or other

support. Such assistance may be regarded as a threat or use of force, or

amount

to intervention in the internal or external affairs of other States.”

Anticipatory Self Defence.

This idea seems to be based on ‘military necessity’, according to which
‘the best

defence is to attack first.

Bowett (permissive school of thought) advocates anticipatory self-

defence:

"No State can be expected to await an initial attack which, in the

present state of

armaments, maywell destroy the State’s capacity for further resistance

and so

jeopardize its very existence.”

McDougal (permissive school of thought) argues that States faced with
a

perceived danger of immediate attack cannot be expected to await the

attack 'like

sitting duck’. There are two major arguments held by them:

Anticipatory self-defence is allowed by customary international law;

Nuclear weapons and modern sophisticated devices makes it

inadvisable to

wait for the attack.

Many Western writers are of the view that the Caroline case is a classic

precedent of anticipatory self-defence and a rule of customary

international

law has been formed through subsequent State practice

However restrictive school holds an opinion different to that as they

argue the

overwhelming practice of states after the emergence of the United

Nations never

accepts the right of anticipatory self-defence.

Therefore, anticipatory self-defence, as formulated in the Caroline case,

is not
supported by subsequent State practice and cannot be said as forming
part of the

customary law of the time.