REPORT-PIL.docx

Right to Existence and Self-Defense

Adaza, JasonGuian, Jeannette

Public International LawJudge Capadocia


RIGHT TO EXISTENCE AND SELF-DEFENSE

Introduction

International law recognizes the autonomy of individual states and their right to freedom from coercion and to the integrity of their territory. International law recognizes also that once a state comes into being, it is invested with certain fundamental rights. These are the (a) rights of existence and self-defense, (b) the right of sovereignty and independence, (c) the right of equality, (d) the right of property and jurisdiction, and (e) the right of legation or diplomatic intercourse.1

Although Grotious vigorously inveighed against mere anticipation of aggression as a ground for self-defense, it would appear that his view has been eroded by the more practical consideration that at times “the best defense is offense.”2

In espousing opposite thesis, US secretary of war Elihu Root declared (and thereby differed with a predecessor, U.S. Secretary Daniel Webster, who years before had argued in favor of the traditional view:

“It is well understood that the exercise of the right of self-protection may and frequently does extend the limits of the territorial jurisdiction of the state exercising it. The strongest example would be the mobilization of an army by another power immediately across the frontier. Every act done by the other power may be within its territory. Yet the country threatened by the state of facts is justified in protecting itself by immediate war.”

The above remarks, which were made more than half a century ago, have derived added validity from the advances of modern science and the development of more sophisticated methods of warfare. Indeed, the intercontinental ballistic missiles have now made it possible for at least the so-called superpowers to inflict instant devastation without any previous overt indication of their intentions or even a physical invasion of the territory of the enemy. One might well argue now that the very state of armed preparedness of a nuclear power is per se a potent, if latent, threat to the security of any country with which it may have some differences. Such a country would, under this view, have a right to beat the other to the draw, as it were, and justify its act under the right of self-defense.

History is replete with instances of the application of this more pragmatic concept of the right of self-defense. For example, the mobilization of Russia in 1914 brought about the immediate declaration of war against it by Germany, which asserted that its security had been imperiled.3 Sometimes, even innocent pawns have become the direct object of hostilities in the

1 Bernas, International Law, 2009 ed.2 Cruz, International Law, 2003 ed.3 Ibid, page 94.

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interest of actual or claimed necessity for self-defense, as when Great Britain seized the Danish fleet in 1807 to prevent it from falling into the hands of the French with whom the British were then at war. A similar fate befell Korea when it was invaded by Japan in 1904 on the ground that Russia, its enemy then, also had its eye on the country and might use it as base of operations against Japan.4 For its part, Russia in 1939 invaded the small state of Finland and sought to justify its act as a strategic measure to defend itself from an anticipated German invasion.5 Only recently, the United States attacked Iraq on the ground that it was storing biological and chemical weapons of mass destruction that it was intending to use against the Americans.6

Scope and Limitation

Thus, this study focuses on the right of existence and self-defense of a State, as a recognition that such right is the most comprehensive attribute of the State. By virtue of this right, the state may take measures, including the use of force, as may be necessary to resist any danger to its existence. Such action being the exercise of an inherent right, it does not depend for its validity on the previous recognition of the state asserting it or on the consent of other states. As the declaration of the rights and duties of states, as prepared by the International Law Commission, affirms “every State has the right of individual or collective self-defense.”7

Right of Existence and Self-defense4 Ibid, page 955 Ibid.6 Ibid.7 Article 51, UN Charter

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Article 51 of the Charter of United Nations, provides that--

“Nothing in the present Charter shall impair inherent right of the individual or collective self-defense if any armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary for the maintenance of international peace and security.”

The above quoted provision provides that in order to justify the exercise of the right of self-defense, and for the use of force be warranted, there must be (a) necessity and (b) proportionality. As stated in Nicaragua v. US “whether the response to an attack is lawful depends on the observance of the criteria of the necessity and the proportionality of the measures taken in self-defense.”

Thus, mere apprehended danger or any direct or any direct threat to the state does not, by itself alone, warrant the employment by that state of any force against a suspected or potential enemy. The right may be resorted to only upon a clear showing of grave and actual danger to the security of the state. Proportionality, on the other hand, would warrant only measures which are proportional to the armed attack and necessary to respond to it.

Self-defense can only be exercised in response to an “armed attack.” This means not merely action by regular armed forces across an international border but also the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. The concept of armed attack does not include assistance to rebels in the form of the provision of weapons or logistical or other support. There is also no rule permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked.8

Anticipatory Self-defense

Some school of thought suggests that anticipatory is allowed in the international field on the ground that “if an armed attack occurs” is in view of the vital interest of nations to protect their integrity. Viewed in such a way, use of force in an anticipatory self-defense may then be justified.

An interesting development in the wake of the 9/11 attack on the WTC is that Article 51 of the UN Charter which recognizes the inherent right of self-defense has been used to justify a response against a non-state aggressor.9

8 Supra. Bernas9 Ibid.

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In opposition to unreasonable use of force, customary laws of international law have developed some traditional allowable coercive measures10. Some of which are the following:

(a) Suspension, which involves withdrawal of diplomatic representation. (b) Retorism, this refers to any form of counter-measures in response to an unfriendly

act of other states. (c) Reprisal, this refers to any kind of forcible measure whereby one state seeks to

exercise a deterrent effect or redress for the consequences of the illegal act of another state.

(d) Embargo which consists of the seizure of vessels (even in high seas).(e) Boycott, which is the suspension of trade or business relations with the offending

state.(f) Non-intercourse, the suspension of all commercial intercourse with an offending

state.(g) Pacific blockade, this refers to the naval operation carried out in time of peace

thereby a state prevents access to or exit from particular ports of the coast of another state for the purpose of compelling the latter to yield to its demands made by blockading state.

In addition to the allowable coercive measures provided above, the Security Council provides for the conditions that may justify armed force without authorization from the Security Council.11

(a) Gross breaches of human rights(b) Crimes against humanity(c) If Security Council is unable to take any action because of disagreement(d) Peaceful means were exhausted(e) Group of States tried to halt the atrocities, but failed(f) If armed force is only or the purpose of stopping the atrocities and restoring respect for

human rights

10 Ibid.11 Supra, Bernas.

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The Cuban Missile Crisis

The quarantine established by the United States in 1962, during the Cuban missile crisis, deserves special recollection. Declaring that “the peace of the world and the security of the United States (had been) endangered by the reason of the establishment of the Sino-Soviet powers of an offensive military capability in Cuba, including bases for ballistic missiles with a potential range covering most of North and South America.”12 President John F. Kennedy interdicted the delivery of offensive weapons and associated materials to Cuba, subject to the following instructions:

To enforce this order, the Secretary of Defense shall take appropriated measures to prevent the delivery of prohibited material to Cuba, employing the land, sea and air forces of the United States in cooperation with any forces that may be made available by other American States.

The Sec. Of Defense may take such regulations and issue such directives as he deems necessary to ensure the effectiveness of this order, including the designation, within a reasonable distance of Cuba, of prohibited or restricted zones of prescribed routes.

Any vessel or craft which may be proceeding toward Cuba may be intercepted and may be directed to identify itself, its cargo, equipment and stores and its ports of call, to stop, to lie to, submit to visit and search, or to proceed as directed. Any vessel or craft which fails or refuses to respond to or comply with directions shall be subject to being taken into custody. Any vessel or craft which is believed is en route to Cuba and may be carrying prohibited material or may itself constitute such material shall, wherever possible, be directed to proceed to another destination of its own choice and shall be taken into custody if it fails or refuses to obey such directions. All vessels or craft taken into custody shall be sent into a port of the United States for appropriate disposition.

In carrying out this order, force shall not be used except in case of failure or refusal to comply with directions, or with regulations or directives of the Sec. Of Defense issued hereunder, after reasonable efforts have been made to communicate them to the vessel or craft, or in case of self-defense. In any case, force shall be used only to the extent necessary.

Fortunately the USSR backed down and thus averted the outbreak of what would have been World War III.

Regional Arrangements

12 Supra, Cruz.

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Collective self-defense is impliedly recognized in Art VII on Regional Arrangements which provides that --. In it is provided that “Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.13

An example of such a regional agency is the Organization of American States, whose Organ of Consultation authorized or ratified the action taken by the United States in the Cuban crisis. The NATO may also be cited although it is not strictly regional because of the participation therein of the United States, which does not belong to the same geographical area as the other members.

Under Art. 5 of the North Atlantic Treaty---

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all, and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of the individual or collective self-defense recognized by Art. 51 of the Charter of the UN, will assist the Party of Parties so attacked by taking forthwith, individually and in concert with other parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

The BALANCE OF POWER

One reason for the organization of regional arrangements is to provide for the balance of power, which Vattel described as “an arrangement of affairs so that no state shall be in a position to have absolute master and dominion over others.”14

The Congress of Vienna of 1815, the Crimean War of 1854, the Congress of Berlin 1878, the Triple Alliance and the Triple Entente before World War I, and the groupings between the Allied and Axis powers during World War II were all motivated by balance of power considerations and based on the fundamental right of self-defense.

Until recently, most of the world was polarized between the democracies and the communists, each camp, with the potential to destroy the other and the rest of mankind with it. The NATO countries were eyeball-to-eyeball with the Warsaw Pact countries. The maintenance of this balance of power contributed in a very real way to international peace although, being an “armed peace”. It was far from the ideal sought in the articles of faith of the United Nations.

13 Regional Arrangements, Art. 52 Sec.114 Supra, Cruz.

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Aggression Defined

Following is the definition of Aggression adopted by the UN General Assembly on Dec. 14, 1974:

Article 1

Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

Article 2

The first use of armed forces by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.

Article 3

Any of the following acts, regardless of a declaration of war shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the Armed Forces of a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another state;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

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Article 4

The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.

Article 5

1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.

2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.

Article 6

Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.

Article 7

Nothing in this definition and in particular Article 3 could in any way prejudice the right of self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Alw Concerning Friendly Relations and Co-operation among Statse in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above mentioned Declaration.

Article 8

In their interpretation and application the abovev provisions are interrelated and each provision should be construed in the context of the other provision.

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