As North Korea is threatening the US with violent attacks, the question rises what to do when a State might be attacked. When comes the time for a State to defend itself against an imminent attack? The conflict between North Korea and the US is closely related to the issue of anticipatory self-defence.
Under international law, States can neither threaten to use force nor use force in their international relations. This rule is widely regarded as a rule of ius cogens or a peremptory norm. The prohibition of the threat or use of force is the most important obligation of States under international law to maintain and promote international peace and security.
Despite the prohibition against the use of force, the Charter permits certain exceptions to the rule. According to article 51 of the U.N. Charter , States that have suffered armed attacks can defend themselves against the attackers. But what if a State is not being attacked yét?
This paper discusses the issue of the use of anticipatory self-defence, based on the question:
‘Under what circumstances would it be legally permitted for the US to use force against North Korea as anticipatory self-defence?’
Firstly, the definitions of self-defence and anticipatory self-defence are compared (2) and the requirements for the use of anticipatory self-defence are analysed (2.1). After this basic framework of anticipatory self-defence, the issue is applied at the conflict between North Korea and the US (3). There is a brief description of the current events (3.1) and shows the effect of those abstract requirements for anticipatory self-defence in an actual conflict (3.2). The conclusion summarizes the answer to the main question of this paper (4).
This research is done by the descriptive methodology as the paper contains interpretations on the requirements for anticipatory self-defence and shows how those requirements are applied at the moment. The paper is based on facts from different sources, such as Abass, the UN charter and jurisprudence like the The Caroline Case.
2. Self-defence versus anticipatory self-defence
Article 2(4) of the U.N. Charter prohibits the threat or use of force and is the most important obligation of States under international law to maintain and promote international peace and security. According to Article 51 of the U.N. Charter, States have the right to defend themselves but only if an armed attack occurs and until the Security Council has taken measures necessary to maintain international peace and security. This article allows states to use force as a last resort to protect their integrity.
The caroline case is still relevant for what constitutes anticipatory self-defence under customary international law. Moreover, the preconditions that can be found in the Caroline case have been extended to the right of self-defence in general, as the right of anticipatory self-defence is a form of the more general customary right of self-defence and the condtions for the application of these rights have to be more or less the same. The preconditions of self-defence in general are necessity, proportionality and immediacy. However it seems reasonable to add two more conditions: first, the Security Council has to take affirmative action, if the Security Council has not yet been able to take an action, only then an action of anticipatory self-defence will be justified. And second, the agressor state against which the right of anticipatory self-defence is being exercised has to be in breach of international law.
2.1 Which requirements must be met for using anticipatory self-defence?
According to Article 51 of the U.N. Charter, States have the right to defend themselves but only if an armed attack occurs and until the Security Council has taken the measures, necessary to maintain international peace and security, prescribed in this article. In the Nicaragua case the International Court of Justice (‘ICJ’) says an armed attack is: (1) action by regular State armed forces across an international border; (2) armed groups, irregular forces and mercenaries when (a) they are ‘sent by or on behalf of a State’ to carry out an armed attack against another State and (b) the attack is of such gravity so that it amounts to an armed attack if it was conducted by regular armed forces of a State.
When States are confronted by an overwhelming sense of danger, such as an imminent attack, States cannot afford to wait for an attack to occur before they act. So, in those circumstances, they can act in anticipation of an attack. The UN Charter does not provide for anticipatory self-defence. As a right, this defence originates from the customary international law priniciples govering self-defence. The customary rules supporting anticipatory self-defence were laid down in the ‘Caroline affair’ of 1837. In the Caroline affair you can find the following requirements: A State can use self-defence when its (1) necessary: that is to say that the threat or use of force is imminent, instant, overwhelming, leaving no choice (no alternatives) and no moment of deliberation and (2) proportionate to the threat or use of force and finally, anticipatory self-defence to the threat of force should take place (3) immediately and not after the attack has ended.
2.1.1. Capacity of the Security Council
In Article 51 of the U.N. Charter we can read that States can only exercise their inherent right of self-defence until the Security Council has taken the measures necessary to maintain international peace and security. The right of self-defence described in this article contains a limitation upon the right of anticipatory self-defence in international law. The use of force by a single State against another is not unilateral if it is authorized by a relevant authority, such as the U.N. Security Council.
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