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Overriding Article 51 of the UN Charter: Pre-Emptive Self-Defence

Posted by fifthdimension on June 20, 2007

Any bumping into Article 51 of the UN Charter for the first time will be positive about the UN’s commitment to world peace. However, looking back at the Bush doctrine of pre-emptive self defence, one is convinced that peace is at stake and there is no law at all.

Article 51 clearly states: “nothing in the present Charter shall impair the inherent right of 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”, which means that the right of self-defence comes to the fore and is legitimate only on event of an external aggression, i.e. an attack occuring before the use of force in self-defence. However, this is not simple as it might seem.

Analysts have interpreted this in several ways. Since the interpretation of Article 51 has been left up to the principal bodies of the UN, especially the Security Council, this has led to a certain amount of flexibilty. The UN itself have granted some leeway in form of the reading “where there is very clear evidence that an armed attack, having not yet occurred, is nevertheless imminent and would be overwhelming, and would make the awaiting of the armed attack disastrous for the attacked country…”.

True, there must be some flexibility, for the international scenario is very delicate and developments couldn’t be foreseen in 1945.

Everyone will agree on a rational interpretation of Article 51. One must not forget that the primary intention of the article is to protect the sovereignty and independence of the state. So, on any event if a state felt its sovereignty and independence is under threat due to the actions of another country, it might be allowed to use force against that country, even if the country’s hostile actions had not yet risen to the level of an actual armed attack.Experts point out that the language of Article 51 have granted an “inherent right” of self-defence to nations, which has been held by many to imply that the right to self-defence, which existed in traditional international law prior to 1945 might still apply.  

Taking into account the “Caroline criteria”, traditional law did recognize a “limited” right of pre-emptive self-defence. This dates back to an incident in 1837, during a rebellion against British rule in Canada, when British troops attacked the ship, Caroline, which was used by private US citizens to transport supplies to the rebels. It was agreed upon that “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” and the action taken must not be “unreasonable or excessive”.But going by the incidents that led to the invasion of Iraq, it’s clear that the US had no reason to take pre-emptive action.

In absence of concrete evidence, how could one bomb and destroy a nation, or push it’s own sons and daughters to a quagmire? The topic might be a hackneyed one, but given the kind excesses going on in Iraq and the clouds of war looming large over Iran and Syria, it’s important to review charters and articles, which might prevent further bloodshed. Is there a law at all?     

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