10.07.2015 Views

5cjxburmr

5cjxburmr

5cjxburmr

SHOW MORE
SHOW LESS

Create successful ePaper yourself

Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.

The Charter of the United Nations was not intended to supersede a State’s inherent rightof individual or collective self-defense in customary international law. 224To constitute legitimate self-defense under customary international law, it is generallyunderstood that the defending State’s actions must be necessary. 225 For example, reasonablyavailable peaceful alternatives must be exhausted. 226 In addition, the measures taken in selfdefensemust be proportionate to the nature of the threat being addressed. 2271.11.5.1 Responding to an Imminent Threat of an Attack. The text of Article 51of the Charter of the United Nations refers to the right of self-defense “if an armed attack occursagainst a Member of the United Nations.” 228 Under customary international law, States had, andcontinue to have, the right to take measures in response to imminent attacks. 2291.11.5.2 Use of Force Versus Armed Attack. The United States has long taken theposition that the inherent right of self-defense potentially applies against any illegal use offorce. 230 Others, however, would be inclined to draw more of a distinction between “armedattacks” and uses of force that do not give rise to the right to use force in self-defense. 231224 Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 94 (1989)(“The United States rejects the notion that the U.N. Charter supersedes customary international law on the right ofself-defense. Article 51 characterizes that right as ‘inherent’ in order to prevent its limitation based on any provisionin the Charter. We have always construed the phrase ‘armed attack’ in a reasonable manner, consistent with acustomary practice that enables any State effectively to protect itself and its citizens from every illegal use of forceaimed at the State.”).225 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (“To constitute legitimate self-defense under customaryinternational law, it is generally understood that the defending State’s actions must be both ‘necessary’ and‘proportional.’”).226 Refer to § 1.11.1.3 (All Peaceful Alternatives Must Have Been Exhausted (Necessity – Jus ad Bellum)).227 Refer to § 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality – Jus ad Bellum)).228 U.N. CHARTER art. 51.229 Lord Peter Henry Goldsmith, Attorney General, United Kingdom, Oral Answers to Questions, Apr. 21, 2004,HANSARD 660 HOUSE OF COMMONS DEBATES §§ 370-71 (“It is argued by some that the language of Article 51provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistentposition of successive United Kingdom Governments over many years that the right of self-defence underinternational law includes the right to use force where an armed attack is imminent. It is clear that the language ofArticle 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of selfdefencethat states enjoy under international law. … It is not a new invention. The charter did not therefore affectthe scope of the right of self-defence existing at that time in customary international law, which included the right touse force in anticipation of an imminent armed attack.”).230 See Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 92-93(1989) (“The United States has long assumed that the inherent right of self defense potentially applies against anyillegal use of force, and that it extends to any group or State that can properly be regarded as responsible for suchactivities. These assumptions are supported in customary practice.”). See also William H. Taft IV, Legal Adviser,Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295,300-01 (2004) (“A requirement that an attack reach a certain level of gravity before triggering a right of self-defensewould make the use of force more rather than less likely, because it would encourage States to engage in a series ofsmall-scale military attacks, in the hope that they could do so without being subject to defensive responses.Moreover, if States were required to wait until attacks reached a high level of gravity before responding with force,47

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!