Journal International Law_N2-10.indd

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saerTaSoriso samarTlis Jurnali, #2, 2010 JOURNAL OF INTERNATIONAL LAW, N2, 2010to attack and not in response to any incidentor any other action of this nature; c) all othernon-forceful options are exhausted.Thus, if diplomatic, economic, informational,judicial, or other courses of action mightdeter the threatened action, defensive use offorce by the target of the threat would violatearticle 2(4). 27 In other words, “force should notbe considered necessary until peaceful measureshave been found wanting or when theyclearly would be futile”. 28Proportionality is the fundamental componentof the Law on the Use of Force. 29Historically, it is part of the Just War Theory. 30The principle of proportionality limits any defensiveaction to that necessary to defeat anongoing attack or to deter or pre-empt a futureattack. 31The third requirement, drawn from Webster’s“instant” and “leaving no moment fordeliberation” language, is imminence, a criterionrelevant only in the case of attacks not yetlaunched. 32Abidance of the criteria of self-defensedoes not legitimize the use of force, if the useof force is unlawful by other cause. Thereforeif armed attack is illegitimate, there is no needto study clauses of proportionality and the necessityof the use of force.2.2. Definition of armed attackArticle 51 of the UN Charter states that“Nothing in the present charter shall impair theinherent right of individual or collective self-defenseif an armed attack occurs…”. This raisesthe need to precisely defi ne “armed attack”.As it is stated in the conclusion of theInternational Court of Justice concerning thecase of Nicaragua “activities of military unitson the other side of the international border”are perceived as an armed attack if they gobeyond the scope of a border incident. 33Various English dictionaries suggest thatan attack is an actual action, not merely athreat. Furthermore, we should take into considerationother parts of the United NationsCharter, namely Article 2, paragraph 4. Thisprohibits both the actual use of force as well asthe threat of force, and it is diffi cult to conceivethat the drafter of the United Nations Charter,due to an oversight, simply forgot to add thewords “or threatens” to Article 51. 34 Whereasexclusion of the word “threat” in article 51 is incompliance with the fundamental principles ofthe UN – to prevent unilateral use of force. Themajority of scholars agree that armed attackis an active attack which already took place,rather than threat of such attack. 35The events of September 11, 2001 triggereddiscussions whether the armed attackreferred to in article 51 of the UN Charter includedterrorist attacks. Article 51 by itself,does not clarify that armed attack should beexecuted by the state, though this provisionremains vague, while paragraph 4, of article 2of the same Charter allows the use of force inself-defense as an exception, when a state isattacked by another state.Nevertheless, if an attack was organizedby a Non-State Actor on the territory of anotherstate, it is assumed that it carries asgrave danger as an armed attack. The UNGeneral Assembly argues in favor of this, inits resolution on the “Defi nition of Aggression”.According to the defi nition, acts of armed forceagainst another state carried out by armedbands, groups, irregulars or mercenaries areof the same gravity as armed attacks carriedout by regular or any other permanent armedforce. 36 The international Court of Justice defined this provision as a norm of InternationalCustomary Law. However, the UN GeneralAssembly resolutions are not obligatory in theirnature. 37 Such a situation can, in legal reasoning,be called a constructive armed attackor a situation equivalent to an armed attack . 38Therefore, armed attack by a Non-State Actorcould serve as a basis for self-defense if it is ofsuffi cient gravity and originated from abroad.The concept of constructive armed attackor a situation equivalent to an armed attack,is not foreign to international legal reasoning.It directs to a rather broader concept of selfdefenseand indicates that in the current environment,an armed attack could derive notonly from states but from Non-State Actors.In that situation the threat came from a non-24
KH. BURKADZE, LEGAL ASPECTS OF THE USE OF FORCE IN THE INTERNATIONAL LAWstate group of the kind most would probablycall “terrorist” today. 39The reaction of the international communityto the events of 11 th of September 2001,explicitly illustrated the concept that armedattack is not limited to state actors. After theattacks, the UN Security Council, recognizedthe right for the self-defense and immediatelyenshrined it in its two resolutions. 40UN Security Council resolutions did notclearly identify that terrorist acts are equivalentto armed attacks, but while recognisingthe right for self-defence it had to recognisethat these acts have served for enacting article51 of the UN Charter. The same attitude wasshared by other international organisations.The North Atlantic Council agreed that thisattack was directed from abroad against theUnited States and should be regarded as anaction covered by Article 5 of the WashingtonTreaty, which states that an armed attackagainst one or more of the Allies in Europe orNorth America shall be considered an attackagainst them all. 41Based on the aforementioned, it could beconcluded that an armed attack can be conductedby another state or Non-State Actorfrom within a foreign state. 423. COLLECTIVE SELF-DEFENSE3.1. Definition of collective self-defenseIt is rather diffi cult to defi ne the exactmeaning of the phrase “collective self-defense”used in article 51 of the UN Charter. Inpractice there are four types of self-defense:a) individual defense conducted individually;b) individual self-defense conducted collectively;c) collective self-defense conductedindividually and d) collective self-defense conductedcollectively. The fi rst category envisagesindividual response from a state when itis attacked by another. The second categorydescribes a situation when the aggressor attacksmultiple states simultaneously or successively,and attacked states exercise theirright of self-defense. The third category is thesituation when in response to aggression, theright of self-defense is exercised by anotherstate individually which was not attacked, insupport of an attacked state in order to repelthe attack. According to the UN Charter anystate could support another, if the latter is thevictim of aggression. 43 In the fourth category,collective self-defense is exercised collectivelywhen two or more states are supporting theattacked state.In its judgment on Nicaragua, the Inter nationalCourt of Justice stated that the right ofcollective self-defense derives not only fromarticle 51 of the UN Charter, but it is a recognizednorm of the International CustomaryLaw. 443.2. Collective self-defense treatiesAccording to article 52 of the UN Charternothing in the Charter precludes the existenceof regional arrangements or agencies for addressingsuch matters relating to the maintenanceof international peace and security, asis appropriate for regional action, providedthat such arrangements or agencies and theiractivities are consistent with the purposesand principles of the United Nations. TheMembers of the United Nations entering intosuch arrangements or constituting such agenciesshall make every effort to achieve pacifi csettlement of local disputes through such regionalarrangements, or by such regionalagencies, before referring them to the SecurityCouncil. The Security Council shall encouragethe development of pacifi c settlement of localdisputes through such regional arrangements,or by such regional agencies, either on the initiativeof the states concerned, or by referencefrom the Security Council. 45The word “regional” referred to in article52 of the Charter, does not only refer to geographiccloseness of the states. First and foremostthe word “regional” refers to the countriesthat are united and allied in terms of theirjoint interests and relationships. 46 Each groupof states that are in value-based unions pursuejoint interests and work together for themaintenance of peace and security. 47 Regionalagreements are agreements between two ormore states. 48 Agreements on collective defenseis an instrument where state parties to25
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