Legitimate Defense in International Law and International Politics

Introduction

This research work highlights various aspects of legitimate defense in international law and politics. The concept of legitimate self-defense in international law is not as easy as it seems. In fact, due to insufficient clarification on legal implications of self-defense, the topic is surrounded by a number of controversies. Just like many other concepts, the topic of legitimate defense is also directly associated with international politics. The International Court of Justice has been held responsible for the misinterpretation of legal implications of legitimate defense. With the evolution of international law and politics, the concept of legitimate defense has also been evolved, but there are still certain aspects which need further clarification (Weber, 2013). This paper explains the situations in which self-defense is considered legal in international law. Also, the paper aims at resolving the controversies related to self-defense in the light of various articles of the United Nations and International Court of Justice. The paper also discusses misunderstood clauses of Article 51 of the United Charter and how the legal right of self-defense can be exploited and used for terrorism.

The paper consists is divided into five sections. The first section is
Literature review, which highlights the historical background of legitimate
defense in international law and how the concept has evolved. This chapter
actually forms the base for detailed research on this topic. After getting on
board with the history and scope of legitimate defense, the paper discusses
various aspects of self –defense as implied by the International court of
Justice and the United Nations. Based on a detailed discussion, results are
deduced which are further analyzed in the light of Caroline doctrine and
Article 51 of the UN charter. Finally the important points inferred from the
discussion and analysis, are highlighted in the concluding section of the
research.

Literature Review

Since the concept of
legitimate defense in international law dates backs to centuries, to cover the
complete history of the topic, this section is divided into two parts. The
first part highlights the old concepts of legitimate defense and the second
part deals with the contemporary idea of legitimate defense as defined by the
international law (Weber,
2013). 

a. Traditional Concept of Legitimate Defense

This part of the research
covers the concept of legitimate defense in international law before the
involvement of the United Nations. Looking back at 19^th century,
there is no evidence of a definite charter or article particularly designed for
legitimate defense . Back then, self-defense was considered as a legal act and
there were no legal implications or boundaries. That was the time when
international politics was in its major phase of evolvement, and states were at
the verge of war with each other (Burchill, et. al. 2013). It was the war of power
so many countries including the UK, refused to limit the right of self-defense,
because this right gave legal power to the British Kingdom to protect its
security. However, countries like Paris, took initiatives to resolve the
controversies surrounding the concept of legitimate defense by signing Paris
Pact. The pact aimed at setting boundaries and conditions for legitimate
defense, but due to the political influence of the UK, this pact was soon abolished
(Amstutz, 2013)

b. Modern Concept of Legitimate Defense

The situation of
international law and politics changed significantly after the formation and
involvement of the UN charter. The concept of legitimate defense swiftly
shifted from threat to peace. The charter made it clear that self-defense is a
lawful act and it cannot in anyway used for terrorist actives or to threat
others. Also UN charter made it quite clear that the use of force and right to
self-defense are two different things. The laws that restrict use of force
cannot be implemented on the right of self-defense. A security council was
formed, which was in charge of defending the security of states. In case, any
state was attacked and Security Council had not taken any actions against the attacker,
the state had all the right to legitimately defend its security. However, the
authentication of legitimate defense has not been framed by the UN charter and
this is pretty much the reason that the legitimate right of self-defense is
still being exploited and used for three major reasons:

• Due to the state of
  international politics, international law has completely restricted every
  country from declaring war, and that’s where states use legitimate defense as a
  weapon to use force on each other (Weber, 2013).
• With the failure of UN
  security, states have been allowed to defend their security on their own and
  this ultimately allows them to use force in the name of legitimate defense.
• The complete prohibition of
  force in any scenario has left states paralyzed. In fact, this clause of the
  Charter has empowered aggressors. Thus, states use self-defense as their legal
  right to fight against aggressors (Burchill, et. al. 2013).

The rightful use of
self-defense and its exploitation can be well-understood, if Article 51 of the
Charter is understood correctly. The Article 51 says that the right of
self-defense (individual and mutual) is legitimate in case of armed intrusions.
But, states are only allowed to use this right unless the Security Council steps
in to resolve the issue. When controversies started about Article 51, due to
limited powers of the Security Council, and amendment was made in the article
and allowed the involvement of any humanitarian body or state in case the
Security Council fails to maintain peace (Alter, 2014).
Here, four things are clear about the concept of legitimate self-defense in
international law as interpreted by Article 51:

• The first and the most
  important feature of this article is, it has declared self-defense as a
  legitimate ‘right’ and therefore every state has the legal power to use this
  right, without any obligations.
• If we read Article 51
  closely, states are allowed to use force for self-help in order to protect
  their peace and integrity.
• The part of Article 51
  where individual as well as mutual self-defense is declared legal can actually
  invoke a state of war among countries. Two or more countries can join forces
  against another state in the name of legal self-defense (Amstutz, 2013).
• Last but not the least,
  Article 51 has not clearly defines the scenarios in which self-defense is
  legal. It does not say that states can only exercise this power for their
  survival, hence allowing states to use this right in any situation.

Methodology

The research work is
majorly based on the analysis of theoretical evidences and articles, and ideas
with the international law and politics, therefore the research methodology
that works best for this research paper is Doctrinal. Primary and secondary resources
have been consulted for the research and are referenced where needed.

Analysis

The existing framework of
the UN Charter and legal implications of the Caroline doctrine seem not to be
doing good enough to provide definite and well-structured guidelines about
exercising the right of self-defense. For example, Article 51 does not say
anything about using self-defense as a preventive measure. It says that a state
can use self-defense as its legal right if its integrity is attacked. But, many
states use self-defense for preventing intruders from attacking, and this type
of self-defense is called as anticipatory self-defense (Keck, & Sikkink, 2014).

The answer to these
ambiguities can be found by the true interpretation of Article 51. If Article
51 is interpreted using a restrictive point of view, the right of self-defense
is only legal, if the attack has already been occurred and therefore, there is
no place for preventive self-defense in Article 51 (Burchill, et. al. 2013).
If that stands true, states must wait for missiles or drones to hit their
borders before using the right of self-defense. When the issue was raised
internationally in 2004, when the UN Charter was being amended, the
International Court of Justice could not explain it. However, the General
Secretary of the UN appointed a panel and added a clause regarding anticipatory
defense. The report presented by the UN Charter, declared anticipatory defense
legitimate if the threat posed is critical.

But every state is
answerable to the Security Council for its measures taken in the name of
self-defense. Also, in case of anticipatory defense, the states are required to
inform the Security Council before taking any actions. The addition
anticipatory self-defense in Article 51 caused a stir in international
politics. Rumors started that states can exploit this new right and can
exercise this power for illegal use of force on each other (Amstutz, 2013).
The rumors were put to end when the UN charter made it quite clear that the use
of force and right to self-defense are two different things. The laws that
restrict use of force cannot be implemented on the right of self-defense.

Although the base of
Article 51 of the UN charter, which is considered as an authority for
self-defense in international law, is only an evolved version of traditional
peace treaties and pacts, the article has minimized the probability of
misapplication of this right to quite an extent. But, Article 51 still has room
for a lot amendment (Bassiouni,
2012).

Results

From the analysis above, it
can be concluded that Article 51 must give the Security Council enough power so
it can intervene before the point when a state is compelled to use the right of
self-defense. Speaking of the legal right, if states are given freedom to use
armed forces before the intervention of a central body, it can naturally create
a state of war. And, now that every other state is a nuclear power, the world
can simply not afford another war. Analyzing all these risks and complications,
the UN Charter needs to work on its legal framework. If the Security Council is
not enough to handle matters related to self-defense, another superior body
should be formed and every state must be answerable to it.

Another result drawn from
analyzing the hierarchy of International Court of Justice and the United
Nations is, countries feel the need to use the right of self-defense because
the Superpowers are considered superior than second and third world countries.
Among the Superpowers also, there is always a tension because every powerful
country wants to stay at the top f the Superpower league. The United Nations
being an international body and authority is responsible for maintaining peace
and harmony in the world, and it’s only possible when every country even the
Superpowers are accountable to the UN for their acts. That’s the only possible
way to minimize situations where countries are needed to use the right of
self-defense (Keck,
& Sikkink, 2014).

Discussion

The discussion about
self-defense cannot be completed without the mention of Caroline Doctrine.
Frist of all, it is important to know what actually Caroline incident is and
why it has such great significance in the matters related to self-defense. Back
in 1800’s, when the concept of self-defense was in its initial phases, an
incident happened, which changed the face of international politics and gave
birth to the modern concept of self-defense. In 1837, a US cargo ship named
Caroline was sailing to Canada for transporting supplies (Alter, 2014).
As it was near British border, the ship was attacked and destroyed by the UK
forces in the name of self-defense. Following this incident, Sir Webster, the
then State Secretary of the Unite States, protested against the British act and
refused to consider self-defense legal in any scenario. It was Daniel Webster
who first set boundaries and limits for self-defense and stated that the right
must only be used in case of survival or major security threat. This amended
version of self-defense was termed as Caroline doctrine, after the name of the
ill-fated steamboat (Bassiouni,
2012).

Using the Caroline doctrine
as the basis of self-defense, the UN Charter proposed Article 51. It defined
self-defense in international law in a more précised way stating that the right
can only be exercised if the intruder is armed and poses threat to the state’s
security.

After the world had seen
two great wars, and to avoid another global war, the UN Charter implemented
Article 51, which is considered as an authority when it comes to defining
legalities of self-defense. The rightful use of self-defense and its
exploitation can be well-understood, if Article 51 of the Charter is understood
correctly. The Article 51 says that the right of self-defense (individual and
mutual) is legitimate in case of armed intrusions. But, states are only allowed
to use this right unless the Security Council steps in to resolve the issue. Though
Article 51 has evolved the concept of self-defense in international law to a
great extent, the framework is still no fully successful in clearing the
ambiguities related to this subject. For example the Article 51 declared the
Security Council as the central authority for resolving disputes between
states, but the council itself can exercise its power in limited scenarios,
thus complicating the global political situation (Keck, & Sikkink, 2014). 

Conclusion

With the power residing
within a few states, the global political situation has become really
complicated. Terrorism has become the most serious issues, and it needs to be
dealt with great strategy. But at the same time, empowering few states will
naturally create a state of war. To maintain global peace, the UN charter and
International Court of Justice joint hands together and legalized the right f
self-defense for every state. According to Article 51, self-defense is
legitimate in international law if a state needs to protect its integrity and
border against an armed intrusion.

From the discussion above,
it can be concluded that there are certain flaws in Article 51 due to which
states are still exploiting the legitimate right of self-defense. The first thing
that needs to be worked on is the position of the Security Council. Being the
central authority, Security Council should have more powers to intervene.

Another important point
concluded from this research is, if self-defense is declared as a legal ‘right’,
it must have some obligations. Freedom to exercise rights, particularly the
right of self-defense, has created tensions between a number of states.
Therefore, self-defense should be considered as an integral part of
international law, in fact there should be a separate law for legitimate
self-defense, so that every state must be answerable to law for using this
power.

Although the base of
Article 51 of the UN charter, which is considered as an authority for
self-defense in international law, was founded on the basis of the Caroline
doctrine. But with the evolution of the International law and politics, Article
51 has also been evolved greatly. It has come a long way from the reflection of
traditional peace treaties and pacts and evolved version of Caroline doctrine
to a complete framework for self-defense.  The article has minimized the probability of
misapplication of this right to quite an extent. But, Article 51 and
International Court of Justice have to work in harmony to make sure that the
right of self-defense is being used legitimately. Self-defense, if used
lawfully, is the right that gives every country equal opportunity to protect
its integrity.

References

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• Amstutz, M. R. (2013). International ethics: concepts, theories, and cases in global politics. Rowman & Littlefield Publishers. http://online.pubhtml5.com/rcqs/xbdg/xbdg.pdf
• Bassiouni, M. C. (2012). Introduction to international criminal law. Brill. http://www.corteidh.or.cr/tablas/R08117.pdf
• Burchill, S., Linklater, A., Devetak, R., Donnelly, J., Nardin, T., Paterson, M., … & True, J. (2013). Theories of international relations. Palgrave Macmillan. http://www.academia.edu/download/39312813/Scott_Burchill_et_al.__Theories_of_International_Relations__3rd_ed.__Palgrave_Macmillan_Ltd.__2005.pdf
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