The extent of Right of self-defence has not been defined under the Charter. Its scope is very wide. Many member-nations of the UN have over periods of time expressed their desire resort to economic attacks against other States which will impair the sovereignty of the State; however, it was not accepted. In Nicaragua v. United States, United States was held guilty of violation of International law. The case was decided on the basis of the fact that use of force is prohibited under customary international law. The Court also said that in customary international law the provision of arms to the opposition in another State does not constitute an armed attack on that State. The right to use force has not been properly defined in the Charter.
Article 51 states that: 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 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 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. The purpose of Article 51 is to preserve or restore the legal status quo of the parties. It is neither a repressive nor a remedial article.
One question which always arises with regards to the use of force is the quantum of force which can be used against an armed attack and if there are any limits to it. It is essential to mention Caroline’s case here. Caroline’s case provides quite a thoughtful definition of the right of self defence from the perspective of customary international law.
This case outlines a conflict between the State Secretary of United States and the Government of Britain. Both the countries came to heads on the subject of demolition of a sea vessel belonging to the United States by the subjects of British government. The sea vessel in question was being employed for the illegal transportation ammunitions along with American citizens who were responsible for carrying out armed attacks on the territory of Canada. After the vessel was demolished, the government of United States cited that the attack on the vessel was a direct attack against the United States. Right to self defence was then claimed by the government of Britain. Both the countries engaged in talks which, to a great extent, involved outlining what actually constituted authentic self defence. United States demanded the government of Britain to prove certain things so as to declare their action as lawful in the domain of international law.
These things included, foremost, the essentiality or the need for the action taken in name of self-defence. The US also wanted Britain to prove that the circumstances were so dire and dangerous which left neither another possible course of action nor a moment for speculation.
The need for defending oneself is usually immediate and urgent and often lands the State in a situation where there is no moment for deliberation. It would not be wrong to say that legal use of force is a part of right of self-defence.
There are three possible situations where the right of self-defence comes into play. First, when there is a large scale attack by one state against the other state. The right of self-defence in such a situation immediately comes into play as was witnessed in the Falkland case.
The second possible situation can be explained with the help of Nicaragua v. United States which involved border attacks and psychological attacks using guerrilla warfare. The US was said to have wrong intent. A suit had been brought by Nicaragua against America, levelling allegations against the country. Nicaragua cited in the suit that United States had promoted illegal military and paramilitary activities against it.
Third, where the government of a State is said to be included in terrorist activities. The attack on Libya by a US aircraft in 1988 or the attack on military establishment in Germany can be a few examples. Operation Entebbe by Israeli Defence Forces is to be mentioned here. An Israeli aircraft on its way to France was hijacked by a German radical extremist group and taken to Uganda. In response, Israeli commando squad led a rescue operation, killing the militants. Meanwhile, fighter airplanes of Uganda were also destroyed. Israel clarified its stance by saying that it acted in self-defence although its actions were criticized by a lot of countries as well as the Security Council.
Post 2001 and after the 9/11 incident which shook the US, the United Nations has decided to include the attacks by Non-state actors under the category of armed attacks. United Nations Security Council resolution 1313 was adopted unanimously on 4 August, 2000. The example of US can be cited here. After the 9/11 attacks, US entered Afghanistan, labelling it as a breeding ground for the terrorist outfit Al-Qaeda, on the grounds of self-defence. Resolution 1313 along with several other resolutions passed by the UN, affirm the right of self-defence. This right also extends to defending oneself against terrorist groups. The Right of Self-defence against state as well as non-state actors is, in cases, also invoked by countries against other countries to protect their citizens and nationals in a foreign country. This has often times proved to be dangerous. A lot of countries have objected to this practise as there has been a rampant misuse of this right in various situations and circumstances. The right in question is a still developing right. Under Chapter 7 of the UN Charter, the United Nations has a responsibility and right to protect the citizens of a state. For instance, in 2004 in Rwanda and Sudan, the citizens of these states were not being protected, therefore, a council was set up by the then Secretary General of United Nations.
The right to self defence should be aimed at maintaining the territorial integrity and political independence of a state. If the aforementioned things are not in danger, then there is no reason for invoking the right of self-defence. The Right to self-defence is not an unlimited right. It has its limitations and restrictions. The provisions of this right have not been defined in a clear way by the UN.
There is a lack and absence of a central agency under the United Nations to keep a check on the armed attacks and acts of aggression by one nation on another nation. However, when in case of violence or aggression, the Security Council decided to act, this right comes to an end. The nation states should wait for Security Council as once a decision has been taken; it is beyond the United Nations to do anything about it. This right sometimes becomes unlimited because of veto powers conferred upon some nations. There have been several instances where nations have misused their veto power to save another nation which is an ally to them. The United States is guilty of making use of its veto power to save Israel in differing circumstances.
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