Self-Defence and the Security Council: What Does Article 51 Require?

Abstract

Court left open the issue whether the right of self-defence could be invoked in the case of an imminent attack. 9. Idem, p. 105. 10. Idem, pp. 104-105. 106. Since 1988 Jordan has renounced all rights it may have had to the West Bank and East Jerusalem.

Iraq War 2003 and the Issue of Pre-emptive and Preventive Self-defence: Implications for the United Nations

“…The post- World War II controversy is derived from Article 51 of the UN Charter 3 and predominantly the phrase ‘armed attack’. Some scholars have interpreted Article 51 that force may be used in self-defence ‘only if an armed attack has occurred’; whilst others consider that an armed attack is only one instance which will justify the use of force in self-defence (see Dinstein 2005; Gray 2008; Green 2011; Greig 1991). Many incidents since the Charter show that the international community infers the Article 51 in the situations of an ‘armed attack’ actually occurred.…”

Anticipatory Action in Self-Defence

“…The Six-Day War is an instance of state practice in which anticipatory action in self-defence was undertaken. 44 Greig 1991, p. 395. Many commentators treat it as the locus classicus of anticipatory action in self-defence.…”

International Law After Iraq: An Ethical or Historical Approach to Justification of Self-Defence

“…53 However, it would seem that there must still be the elements of urgency, immediacy and the absence of credible alternatives to war. 54 A modern version of the Caroline approach is described in Oppenheim's International Law: 55 The development of the law, particularly in the light of more recent state practice, in the 150 years since the Caroline incident suggests that action, even if it involves the use of armed force and the violation of another state's territory, can be justified as self defence under international law where: an armed attack is launched, or is immediately threatened, against a state's territory or forces (and probably its nationals); there is an urgent necessity for defensive action against that attack; there is no practicable alternative to action in self-defence, and in particular another state or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect; the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, i.e. to the needs of defence … (Emphasis added.…”