Chapter 2

Right of Self-Defense under the UN Charter

The Charter of the United Nations recognizes both individual self-defense and
collective self-defense. Each kind of self-defense has its own characteristic. Individual
self-defense can be referred to unilateral use of force by a state to repel any unlawful
attack. Collective self-defense is the collective number of states to protect the
common interest in international community. The same point is that both types of
self-defense activate only if the armed attack occur.
2.1 Role of Security Council
The Security Council was intended to operate as an efficient organ of limited
membership, functioning continuously. It was given primary responsibility for the
maintenance of international peace and security.1
In theory the Security Council has a central role with regard to individual and
collective self-defense: States must report their use of force in self-defense to the
Security Council immediately and the right of the State to self-defense is temporary
until the Security Council takes the measures necessary to maintain international
peace and security. In practice the Security Council does not generally make
pronouncements on the legality of claims to self-defense.2
There is no authoritative statement as to whether the reporting requirement in
Article 51 of the UN Charter should be classified as mandatory or directory. 3 The
reporting requirement’s original raison d’etre in 1945 was rooted in the goal of
centralizing the use of military force with the newly created UN Security Council
following the atrocities of World War II. The requirement was intended to enable the
Council to respond effectively to any threat that an attack (or forcible defensive
1
Malcolm N. Shaw, International Law, Cambridge University Press, 8th Ed, 2017, pp.925-926.
2
Malcolm D.Evans, International Law, Oxford University Press, 1st Ed, 2003, p.606.
3
D.W. Greig, Self-Defense and the Security Council: What Does Article 51 Require, The
International and Comparative Law Quarterly, Apr. 1991, Vol.4o, No.2, p.368.
 13

response) may pose to international peace and security. The reporting obligation was
also designed to provide the council with information with which it could begin to
assess the validity of state’s self-defense claim, irrespective of whether it felt it
necessary to respond under Chapter VII. Reporting was supposed to give the Council
the opportunity to scrutinize claims of self-defense. Viewed in this light, the
requirement can be seem as, at least be seemed as being intended to be, “a most
important safeguard for…the proper scrutiny and control of circumstances when self-
defense is invoked…is essential to the maintenance of peace.” 4
However, the judgment of the International Court of Justice (ICJ) in the
Nicaragua case can offer some lead in this regard. The Court, while noting that the
requirement to report measures taken in self-defense to the Security Council pursuant
to Article 51 does not constitute a part of customary international law, held that “the
absence of a report may be one of the factors indicating whether the state in question
was itself convinced that it was acting in self-defense”. The Court was of the view
that where the plea of self-defense is raised to justify actions which would otherwise
be in violation of both customary international law and the UN Charter, it is to be
expected that the provision of the Charter to be observed. However, the Court failed
to determine whether, if the Charter provisions were applicable, a non-compliance
with the reporting requirements vitiates the action taken in self-defense. The effect of
the pronouncement of the ICJ is that a failure on the part of a state to adhere to this
reporting requirement would affect the genuiness of a State’s claim to be acting in
self-defense.5 Moreover, Article 51 UN Charter does not stipulate the format that
victim States must use when reporting self-defense action to the SC. Providing self-
defense action is brought to the attention of the SC , the reporting obligation is
discharged. Usually, reports take the form of a written letter to the President of the SC
or to the UN S-G but, exceptionally, States have given notice of their resort to self-
defense orally during SC debates.6

4
James A.Green, The Article 51 Reporting Requirement for Self-Defense Actions, Virginia Journal
Of Law, 2015, pp.7-8.
5
Eustace Chikere Azubuike, Probing the Scope of Self-Defense in International Law, Annual
Survey of International & Comparative Law, Vol.17, Issue 1, Article 8, p.148.
6
Russell Buchan and Nicholas Tsagourias, Regulating The Use of Force In International Law,
Edward Elgar Publishing, 2021, P.75.
 14

The right of states to make regional arrangements to deal with matters of

international peace and security is protected by the UN Charter and, in particular, by
Article 52.7
Article 52 of the UN Charter provides:
“Nothing in the present Charter precludes the existence of regional arrangements or
agencies for dealing with such matters relating to the maintenance of international
peace and security as are appropriate for regional action, provided that such
arrangements or agencies and their activities are consistent with the purposes and
principles of the United Nations”.8
Article 52(2), however, charges member of regional organizations with
making “every effort to achieve pacific settlement of local disputes through such
regional arrangements or by such regional agencies before referring them to the
Security Council”. Action taken via regional organizations will only be legitimate if it
is consistent with the purposes and principles of the UN Charter, and does not amount
to “enforcement action”, unless this has been authorized by the Security Council. The
Security Council must, under Art.54, be kept fully informed at all times “of activities
undertaken or in contemplation under regional arrangements or by regional agencies
for the maintenance of international peace and security.9
The Organization of Eastern Caribbean States’ peace-keeping mission which,
with the support of Barbados, Jamaica and the United States, landed in Grenada on
October 25, 1983, is an instance action being taken under the auspices of a regional
organization. Arguments supporting the legality of the invasion are founded, inter
alia, on its legitimacy as a regional peace keeping mission under Art.52 of the UN
Charter, especially as it was prompted by the breakdown of government authority and
its response to a request by the Governor General, Sir Paul Scoon.10
The legitimacy of the 1962 US quarantine imposed in respect of vessels
destined for Cuba, is purported to be based on Art.52, namely through the
authorization of the Organization of American States.11
Regional organizations can play a vital role in the maintenance of international
peace and security. For example, in the crisis in the former Yugoslavia, there was

7
Rebecca M.M. Wallace, International Law, Thomson, 2002, 4th Ed, p.266.
8
Article.52 , The Charter of the United Nations, 1945.
9
Rebecca M.M. Wallace, International Law, Thomson, 2002, 4th Ed, p.266.
10
Ibid.
11
Ibid.p.267.
 15

evidence of a growing utilization of regional agencies. UN SC Resolution 787

authorized states “acting nationally or through regional agencies” to use appropriate
measures to enforce the UN economic sanctions against Serbia and Montenegro.
NATO also played a significant part in the crisis and was specifically charged with
the task of enforcing the no-fly zone over Bosnia in support of UN SC Resolution
816. Although the delegation powers from the UN force in Bosnia at the time
(UNPROFOR) to NATO troops (IFOR) was not strictly an authorization to a regional
organization under Art.53, it was, nevertheless, evidence of the Council’s willingness
to delegate the maintenance of international peace and security to a regional
organization.12
All in all, reporting obligation to Security Council by state is in fact the
limitation of the collective use of force. However, it is not mandatory. On the hand, it
can proof the valid claim of the inherent right of collective self-defense.
2.2 Individual Self-Defense
The individual self-defense refers to a situation where the State which is the
victim of an armed attack defends itself against the attack. 13 The scope of the lawful
exercise of the right of self-defense remains under the strict scrutiny of the
international community and reflects its attempt to centralize the international use of
force. The general interdiction of aggressive war has significantly influenced the
concept of self-defense and firmly established its legal notion. Despite the fact that it
was neither explicitly mentioned in the Covenant of the League of Nations nor in the
Briand-Kellogg Pact, the customary concept itself was left unimpaired. The atrocities
of the Second World War made it necessary to insert an explicit provision regarding a
State’s right of unilateral use of force.14
A State may lawfully resort to unilateral use of force outside of its territory in
the following circumstances:
1) When it has been subjected to an armed attack on its territory, vessels or
military forces;
2) When the imminence of an attack is so clear and the danger so great that the
necessity of self-defense “is instant (and) overwhelming;

12
Rebecca M.M. Wallace, International Law, Thomson, 2002, 4th Ed, p.267.
13
Abdul Gahfar Hamid@ Khin Maung Sein, Public International Law: A Practical Approach,
Thomson Reuters Malaysia Sdn Bhd, 3rd Ed, 2011, p.416.
14
Jan Kittrich, The Right of Individual Self-Defense in Public International Law, Logos Verlag Berlin
GmbH 2008, pp.17-18.
 16

3) When another state that has been subjected to an unlawful armed attack by a
third state requests armed assistance in repelling that attack;
4) When a third state has unlawfully intervened with armed force on one side of
an internal conflict and the other side has requested counter intervention in
response to the illegal intervention; or
5) When its nationals in a foreign country are imminent peril of death or grave
injury and the territorial sovereign grounds is unable and unwilling to protect
them.15
A right to self-defense isn’t absolute in nature. The conditions are:
a) Use of force must be in response of an armed-attack,
b) State needs to fulfill elements like necessity, proportionality and immediacy,
c) Reporting needs to be done to Security Council.16
The armed conflict in the Democratic Republic of The Congo (DRC) is the
most serious and protracted of any since the Second World War. Since the conflict
began in 1994, it has directly involved on different sides, the armies of DRC
(formerly Zaire) Uganda, Rwanda, Burundi, Zimbabwe, and Namibia. Three other
States (Angola, Sudan, and Chad) have also been indirectly involved. Uganda’s own
involvement in the conflict dates back to 1996 when it, along with Rwanda, gave
support to the Congolese rebel group Alliance of Democratic Forces for the
Liberation of the Congo (ADFL) under the leadership of Laurent Kabila. On 28 July
1998 President Kabila asked all foreign troops to leave, but Uganda refused to
withdraw. In the period following the expulsion of foreign troops, the DRC
consistently maintained the Uganda was giving military support to Congolese rebel
groups with the aim of overthrowing Kabila’s Government. It maintained that its
support for these groups was consistent with its right of self-defense, because these
rebel movements were acting as de facto governments in the areas under their control
without any challenge from the established government. 17 The Court would first
observe that in August and early September 1998 Uganda did not report to the
Security Council events that it had regarded as requiring it to act in self-defense. 18
15
Oscar Schachter, The Lawful Resort to Unilateral Use of Force, Yale Journal of International Law,
Vol.10:291, 1985, p.291.
16
Pukar Dahal, Right to Self-Defense of States under International Law: A Conceptual
Understanding, INT’I J..MGMT. & HUMAN. 1107(2020), p.1110.
17
Phoebe N.Okowa, Case Concerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), 55INT’I & COMP. L.Q. 742 (2006), pp.743-744.
18
Case Concerning Armed Activities on the Territory of Congon (Democratic Republic of the Congo
v.Uganda0, Judgement of 19 December 2005, Para 145,p.222
 17

The Court has also found that the events attested to by Uganda did not justify
recourse to the use of force in self-defense.19
In summing up, individual self-defense is not unilateral use of force prohibited
under the UN Charter. Unilateral use of force means unauthorized use of force
against another state. For individual self-defense, reporting to the Security Council is
unnecessary. On the other hand, the Victim State needs to declare under being an
unlawful attack.
2.3 Collective Self-Defense
The term reflects the collective interest and endeavor of states to advert an
armed attack by an aggressor state or states. State can unite for the protection of their
territories against external aggression and conclude treaties of mutual assistance.
Theses treaties supplement the right of collective self-defense with the duty of
collective self-defense; every aggression becomes a matter for the whole international
community and its prevention is a “common interest”, a common “defense” or “self-
defense” against aggressor. For the exercise of the right of collective self-defense,
however, the consent of the attacked state is important.20
As regards the lawfulness of the exercise of collective self-defense, the
International Court of Justice (ICJ) held that the State which was the victim of an
armed attack had to form and declare the view that it had been so attack. 21 In the
Nicaragua case, the ICJ emphasizes this principle: “There is no rule permitting the
exercise of collective self-defense in the absence of a request by the State which
regards itself as the victim of an armed attack”. To permit other states to assist in a
collective self-defense action, the state for whose benefit the action is taken must
consider itself to be the victim of an armed attack.22
Nicaragua applied to the ICJ, alleging that the United States had laid mines in
Nicaraguan waters and engaged in unprovoked attacks on ports. Nicaragua also
alleged that the US trained, funded and supported a group of anti-government rebels
in their struggle against the incumbent ruling regime of Nicaragua. It was argued that
the US had violated the sovereignty of Nicaragua, thereby violating the principle of

19
Ibid, Para.149,p.224.
20
Josef Mrazek, Prohibition of the Use of Force and Threat of Force: Self-Defense and Self-Help in
Intrnational Law, 27 CAN. Y.B. INT’I L.81(1989), p.93.
21
Josef Mrazek, Prohibition of the Use of Force and Threat of Force: Self-Defense and Self-Help in
International Law, 27 CAN. Y.B. INT’I L.81(1989), p.93
22
Gideon Boas, Public International Law: Contemporary Principles and Perspectives, Edward Elgar,
2012, p.332.
 18

nom-intervention contained in Article 2(7) of the UN Charter, and engaged in an

unlawful use of force. The US argued that it acted in collective self-defense for the
benefit of El Salvador because of Nicaragua’s practice of harboring Communist
opponents of the government of El Salvador.23
The Court held that Nicaragua’s conduct in relation to El Salvador did not
constitute an armed attack. Whilst an armed attack could include “assistance to rebels
in the form of the provision of weapons or logistical or other support”, there was
insufficient evidence to conclude that Nicaragua had been engaged in an armed attack
against El Salvador. A state cannot engage in acts of collective self-defense until the
target of armed attack requests assistance. If this assistance is requested, the
intervening state must notify the Security Council of its action in accordance with the
Article 51 of the UN Charter. In this case, there was no evidence to support a finding
that El Salvador had requested assistance, and the USA had not notified the Security
Council of its action. 24
The exercise of collective self-defense can also be founded in the event of
Korea (1950). Before World War Two, Korea had been under Japanese control. In
1943 its independence was guaranteed by allies but in 1945 Japan surrendered. North
Korea to the Soviet Union and surrendered South Korea (south of the 38 th parallel) to
the USA. Deadlock ensued and in June 1950 North Korea troops crossed the border
into the South Korea. At that time the USSR was boycotting meetings of the Security
Council in protest against the fact that it was Nationalist China rather than the
People’s Republic which was the representative of China. The invasion was reported
to the Security Council which determined that the action constituted a breach of the
peace and called for an immediate cessation of hostility Council. When this call went
unheeded the Council passed a second resolution under Article 39 recommending that
all states should provide such assistance to South Korea as was necessary to repel the
armed attack and to restore international peace and security to the area. A third
resolution established the UN unified command and recommended that member
States should make military force and other assistance available to the unified
command under the USA. The USA provided the commander of such forces and was
in overall control. Subsequently the USSR returned to the Security Council and the
23
Gideon Boas, Public International Law: Contemporary Principles and Perspectives, Edward Elgar,
2012, p.332.
24
Ibid.
 19

matter passed into hands of the General Assembly because agreement no longer
possible in the Security Council.25
There have been arguments put forward that the Korean action was not
legitimate under the UN Charter on the basis that USSR’s absence should not be
counted as a vote. A similar argument was mounted against Security Council
Resolution 678 (1990) which imposed a deadline on Iraq to withdraw from Kuwait or
face military action. In that case was it was China that abstained. The majority of
opinion seems to suggest that an abstention should not be considered to be a veto. It
was also disputed as to whether the Security Council could instigate the use of armed
force outside the Article 42 and 43procedure. The action in Korea has therefore been
characterized by some commentators as an example of the collective self-defense of
South Korea.26
The arrangements of states concluded on the basis of the right to collective
self-defense should not be confused with the collective security system of the United
Nations itself. These arrangements are lawful provided they fulfill requirements of
Article 51. But they are not part of the United Nations Machinery for the preservation
or restoration of international peace and security. 27 Bowett identified six differences
between collective self-defense and collective measures under Chapter VII.
(1) Collective self-defense needs no authorization from the Security Council. A
salient and fundamental different between collective measures of the kind
contemplated in Chapter VII, and collective self-defense, is that only the
Security Council can authorize the former, but the latter no authorization.
(2) The circumstances which ‘trigger’ the Council’s powers under Chapter VII (a
threat to the peace, breach of the peace, or act of aggression under Article 39)
are not identical to an ‘armed attack’ which is a precondition for the exercise
of the right of self-defense as recognized in Article 51. “The collective
measures under Chapter VII could be taken when no possibility of collective
self-defense existed”.
(3) ‘In collective measures under Chapter VII it is for the Security Council to
determine which Member State may participate.’ In the case of collective self-

25
Tim Hillier, Source Book on Public International Law, Cavendish Publishing Limited, 1998, p.616.
26
Ibid
27
Max Sorensen, ed. Manual of Public International Law, Palgrave Macmillan, 1968, p. 770.
 20

defense ‘it is essentially for the State to determine which states shall
participate.
(4) Measures in self-defense must be proportionate. The limitations on the choice
of collective measures are quite different, and are governed by the aim of
maintain and restoring international peace and security.
(5) The aim of self-defense (the protection of the state) and collective security
(maintenance and restoration of international peace and security) are very
different, with the latter permitting measures of ‘far greater scope’.
(6) The timing of the response differs, in that action in self-defense depends on
proof on immediacy.28
Collective self-defense may be exercised either spontaneously (as an
unplanned response to an armed attack after it has become a reality) or premeditatedly
(on the footing of a prior agreement contemplating a potential armed attack). There
are those who deny one possibility or the other. It has been contended that support of
a State in the grip of an armed attack is contingent on the existence of a collective
treaty. Conversely, it has been maintained that Article 51 precludes Member States
(acting outside the pale of the United Nations) form elaborating strategic plans, or
coordinating their military forces under an integrated high command, before an armed
takes place. In reality, there is no sustenance in the text for either interpretation. The
latter position has been rightly termed ‘astonishing’, and so is the former. States are
entitled to invoke the right of collective self-defense either on the spur of the moment
or after thorough preparation for a rainy day.29
The invasion of Kuwait by Iraq30 on 2August 1990 raised the issue of
collective self-defense in the context of the response of the states allied in the
31
coalition to end that conquest and occupation. The invasion was almost universally
condemned and the Security Council passed a series of resolutions relating to the
situation. On the day of the invasion the Security Council passed Resolution 660
which determined that situation constituted a breach of international peace and
security and demanded immediate Iraqi withdrawal. Following Iraq’s failure to
withdrawal, Resolution 661 was passed which imposed comprehensive economic
28
Marc Weller (Ed.), The Oxford Handbook of the Use of Force in International Law, Oxford
University Press, 2015, p.652.
29
Yoram Dinstein, War, Agrression and Self-Defense, Cambridge University Press, 2011, 5 th Ed,
pp.281-282.
30
Invasion of Kuwait by Iraq, August.1999, S/Res/660.
31
Malcolm N.Shaw, International Law , Cambridge University Press, 8th Ed, 2017, p.873.
 21

sanctions on Iraq. Resolution 665, passed on 25 August 1990, authorized those

member states co-operating with the Government of Kuwait to ‘use such measures
commensurate to the specific circumstances as may be necessary under the authority
of the Security Council’ to enforce the sea blockade of Iraq. Columbia and Cuba both
questioned whether it was permissible for the Security Council to authorize the use of
force without the agreements necessary under Article 43, but no conclusive answer
was given.32 Although the armed action from 16 January 1991 was taken pursuant to
UN Security Council resolutions, it is indeed arguable that the right to collective self-
defense is also relevant in this context.33
Overall, collective self-defense can only be exercise only if an act of
aggression and breach of the peace by armed force occurred. However, the legal
status of the collective self-defense is set by the ICJ.

32
Tim Hillier, Source Book on Public International Law, Cavendish Publishing Limited, 1998, p.617.
33
Malcolm N. Shaw, International Law , Cambridge University Press, 8th Ed, 2017, p.873.