Legitimate Defense in International Law and International Politics

2839 words (11 pages) Essay in International Law

27/03/19 International Law Reference this

Last modified: 27/03/19 Author: Law student

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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 19th 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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