Under what circumstances, if any, does a state’s inherent right of self- defence allow it to take lawful military action before it has been subject to an armed attack? To what extent, if any, should the right of self- defence be reinterpreted to do so?
According to the Charter of the United Nations (1945) any use of force is prohibited by Article 2 (4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations” (pg 9). However, there is an exception to this rule which is also found in the Charter of the United Nations (1945), Article 51: “Nothing in the present Charter shall impair the inherent right of the individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self- defence shall be immediately reported to the Security Council and shall not in anyway affect the authority on responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain and restore international peace and security” (pg 16). It is the right to self- defence that the main issue of this essay aims to focus paying great attention as to whether it is lawful to act in self- defence to an attack that a state hasn’t yet been subject to. Due to many changes in recent years in relation to what weapons certain states or non- state actors possess and how they attack has lead to many debates on the different types of self- defence and how legislation should be interpreted to adapt to these new threats. The transformations that self- defence has witnessed are from the original right of individual or collective self defence against an armed attack under the UN Charter to anticipatory and pre-emptive self defence against an imminent or even non- imminent attack. The major shift in self- defence from on end of the spectrum to the other has been identified by many authors a response to the terrorist attacks of 9/11 on the United States (McMahan, 2005, Riesman and Armstrong, 2006 Antonopoulos, 2008).
The debate into self- defence taken by a state against an attack that hasn’t yet happened will be focused on in more depth throughout this essay. This paper aims to look at the positive and negatives of anticipatory and pre-emptive self defence using past examples and court cases where such claims of self- defence have taken place, whilst also at the same time paying great attention moral reasoning theories, in hope that they can shed more light on the debate.
This essay will conclude that, the circumstances when a state’s inherent right of self- defence allow it to take lawful military action before it has been subject to an armed attack, is when an imminent attack is evident which is backed up by facts and there are no other ways and means of acting. To wait for an attack to happen would be foolish and is no longer the way states should go about military practice (Antonopoulos, 2008). However, although there are the Vattel (1758), Walzer (1827) and Webster (1992) test to help formulate when such self- defence can be used, no one test can solely be relied on and each request for anticipatory self- defence should be decided on a case by case basis as no certain principles can determine this. In addition the extent to what the right of self defence should be reinterpreted to allow preventative measures of such defence should be that it is interpreted in its widest form, Shah’s (2007) ‘ Expanded interpretation’ (P.g. 98). There needs to be a middle ground for self- defence, one that allows for anticipatory/ pre-emptive self defence to be taken but one that doesn’t allow for any wars to be started, this is...
References: Antonopoulos, (2008)
Charter of the United Nations (1945)
Fisher, D. (1994)
Glennon, M. (2001- 2002)
Luban, D. (2003)
Reiff, M. (A) (2010) The Use of Force: Self- Defence. Found at: http://blackboard.manchester.ac.uk/webct/urw/lc5116011.tp0/cobaltMainFrame.dowebct Accessed on: 03/03/10
Riesman and Armstrong, (2006)
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