Collective self-defence is the guiding principle of international alliances, which main objective is to dissuade, retaliate or minimise the impact of an external aggression, but self-defence is managed according to criteria, and its application differs depending on the capacity of the different actors to implement it.
The right of self-defence considered in the UN Charter (Article 51) could be individual or collective. This includes dissuasion and prevention of armed conflicts, as long as the UN Charter is fully respected.
In order to examine if the concept of ‘collective self-defence’ in the UN Charter is fraught with legal controversies, first we must identify which are the reasons and why do controversies arise from the concept of ‘collective self-defence’.
Likewise, analyse how the term ‘self-defence’ in the UN Charter is defined, how Article 51 is integrated and how the term ‘collective self-defence’ is composed and how some key elements inside of it can be misinterpreted or even confusing for the implementation and use of it.
Thus, due to the different applications of the concept, I will study the argument that this ‘fact of controversy’ derives from the legal controversies of its use and application within international law, analysing its background and considering specific cases to identify why controversies rise around the concept of collective self-defence.
Part of the background of our main concept is the Caroline Case, which was an imperative of customary international law during the 19th century. Afterwards, the UN Charter defines the concept of individual or collective self-defence but it’s not well addressed; this was designed to satisfy post World War II necessities, particularly the need to maintain and preserve international peace and security.
The right of self-defence has its source as a customary rule, which was transformed into a written rule under the Kellogg-Briand Pact. The treaty mentioned that self-defence is a natural right of every sovereign State, which must be assumed in any treaty or agreement. The other signing States did not oppose to this concept, and in fact several countries has exercised this right.
In order to analyse the concept of ‘collective self-defence’ I shall dismantle the concept and review all the components, which compel the concept, essentially the entire UN Charter’s Article 51, point out the key words inside of it to demonstrate that in fact the full article has got by itself various controversies I even dare to state that it can reach the point of contradiction and this has brought discussions along modern history and controversies between the UN and some countries, in particular with the U.S.
The UN charter may seem to be contradictory in terms of the use of force. In the one hand, Article 2(4) states that UN member states shall “refrain from the threat or use of force”, but then chapter 7 of the Charter, particularly Articles 51, expresses some enforcement powers to the Security Council (SC) in times of dispute and debate, who gives these powers to the SC that the member countries can’t have even in times of conflict?
Dismantling Article 51
Article 51 of the UN Charter sets out the elements of the right to self-defence stating that self-defence is an “inherent right”, please note that the Charter is not creating a right of self-defence, but it recognises that it already exists. The UN acknowledges that every Nation has to have the right to self-defence, it has been existing since the creation of the ‘Nation State’, so the UN didn’t have any opportunity to exclude the right form the Charter, this only –shaped into Article 51- adapts it for post-World War II times.
Another key element of it says “…until the Security Council has taken measures necessary to maintain peace and security”, in this part the key word is “until”, in fact the SC has never undertaken any “enforcement action” by itself, this gives a very clear idea of why countries have to exercise their right to self-defence and to be precise the right to a ‘collective self-defence’.
Another key concept inside Article 51 is “nothing in the present Charter shall impair”, which gives total control to members states to exercise their inherent right to self-defence, but this clashes with Article 2(4) which essentially says that any threat or use of force is prohibited and unlawful, pointing this as a controversy of exercising ‘collective self-defence’.
One important question to point out is what and how a threat to peace or international security is composed, when can the SC authorise collective self-defence?
Article 41 establishes measures not involving the use of armed force and Article 42, measures to be taken by air, sea, or land forces as may be necessary, to maintain or restore international peace and security.
This scheme, which in law theory could be effective, presents great difficulties in practice. As a matter of fact, the Security Council has not always been able to apply measures from Article 42. In most of the cases, the Security Council makes recommendations to nations to maintain international peace within the implementation of Article 51 of the UN Charter, which comes as a legal resort to self-defence. The authorisation on the use of force by SC has been granted in some cases, increasingly more since the end of the Cold War, with the cases of Korea in 1950 and Kuwait in 1990 being the case studies. Article 42 is also the legal basis for all peacekeeping operations.
Another key part of Article 51 states that there has to be an “armed attack”, this of course brings controversy, starting to point out that there is no definition of armed attack in the entire charter and it differs with on how Article 2 (4) lays it out as “threat or use of force”, it is obvious that the term ‘armed attack’ is narrower than “threat or use of force” but it is also narrower than “use of force” and this confuses in terms of the application of the Charter.
During the 1980`s the International Court of Justice (ICJ) addressed this issue in two cases involving Nicaragua, one with Honduras and the second with the U.S. In the last occasion the ICJ involved allegations that Nicaragua had provided support for groups of rebels in operating in neighbour countries, but that support involved an armed attack by Nicaragua, and then the U.S. came to the assistance of those neighbour countries in the form of ‘collective self-defence’. In this case the ICJ stated that Article 51 was still valid and it applied in this occasion ruling in favour of the U.S. to conclude that customary law and the Charter law are identical in the content.
From this case three conditions derived for the right of ‘collective self-defence’ to apply, there must be at least one State which has been a victim of an armed attack and which therefore has and individual right of self-defence, in other words the right of collective self-defence doesn’t come to play unless there is at least one country for the right of individual self-defence to be exercised, this means that the suggestion that all of the States using force or participating in the collective self-defence had been affected from the attack previously done.
Likewise, the attacked State requires to declare to be the victim of an armed attack and so to request the assistance of other countries publicly.
Supposing there are a series of small scale incidents involving low level use of force directed from one state to another, do they have to been taken as individual actions or as a whole together in form of a big attack, but we have to look at them together as an ‘armed attack’
Another controversy is the question from who is that attack originated? If the attack comes from a State to another State that immediately triggers the Article 51 in the form of ‘individual or collective self-defence’, this has never been a controversy. But can an ‘armed attack’ come from a non-state actor?
Of course it can. If that non-state actor can be linked to a State the responsibility automatically comes upon that State and it responses for the actions of that group. But the controversy comes when the armed attack involving a large-scale loss of life killing a massive number of people and it could not be attributable to any State. As I said before the UN Charter was written to satisfy post World War II necessities, but after a long period of time it could had become obsolete, during 1945 this issue wasn’t raised or even thought about it and so the controversy came in 11th September 2001 after the attacks in the UU.SS.
After the 9/11 attacks the SC adopted two resolutions, 1368 and 1371 and they talked about the U.S. right to self-defence, and yet it hadn’t been clear if there had been an State involvement in the 9/11 incidents. Obviously what happened in the incident reaches the level of an ‘armed attack’, but does this justifies the use of force against the terrorist organisation in question on the territory of another State, in this case Afghanistan, where that other State it’s not shown to be directly involved? Is this terrorist action characterised as an armed attack for the purposes of Article 51.
This brings up the next key element in article 51 “if an armed attack occurs” does this means that an State has to wait to attacked in order to exercise its right to self-defence or can it use ‘pre-emptive self-defence’ within a short time frame, this has long been a case of controversy, as it was back then with the Caroline Case, many say that the right of self-defence applies when an armed attacked was imminent, the State doesn’t needs to wait to being attacked, it can uses ‘pre-emptive self-defence’.
Cases of ‘Collective Self-defence and the use of armed force
Nicaragua v. The United States of America.
This case is one of the most controversial cases of ‘collective self-defence’, its importance had repercussions on the law and jurisprudence of the United Nations Charter and the way self-defence and the use of force will be applied from now then.
This case was brought to the International Court of Justice three occasions, the first on May 1984; the second on November 1984 and for a third and definitive time in 1986, when the ICJ ruled in favour of the applicant, Nicaragua.
The International Court of Justice effectively argued that the United States had engaged in military and paramilitary activities in and against Nicaragua, clearly violating customary international law.
“The Nicaragua Case 166 is the Court\’s most recent pronouncement on the self-defence concept. The opinion is noteworthy as an implicit confirmation by the International Court of Justice of the post-World War II war crimes tribunals\’ rejection of the position that a state is the sole judge of its own activities asserted to be in the exercise of self-defence rights. However, it has attracted comparatively more attention to compulsory jurisdiction issues and the Court\’s general role than to its substantive pronouncements on self-defence”.
Despite the age of the origins of the conflict in Kosovo, the beginning of the last decade of the XX century marked the escalation that led to the armed struggle triggered in the region of the Balkans into a conflict of international dimensions. In 1990, in reaction to the surge of nationalism in several Yugoslav republics, Belgrade abolished the autonomous status of Kosovo, dissolved the Parliament and the Albanian government, and initiated a process of repression in that region. In 1991 the insurgents and rebels unilaterally proclaimed the Republic of Kosovo, and in 1996 the Kosovo Liberation Army (KLA) formed by different military and paramilitary armed groups, began military operations, which developed a broad terrorist campaign against Serb police and civilians.
Therefore, the Security Council approved a series of resolutions; resolution 1160; resolution 1199; resolution 1203 and resolution 1244, in order to put an end as well as a solution to this regional conflict.
Resolution 1160 was approved by the Security Council in order to defuse the tension, since 1997, the Organisation for Security and Co-operation in Europe (OSCE), through its Contact Group, took the initiative to convince the Yugoslav authorities to grant Kosovo substantial autonomy. Given the failure of these negotiations, on 31st March 1997, under Chapter VII of the United Nations Charter, Resolution 1160 was promulgated, its content was decided by the Security Council and it summarises an embargo to all arms and it condemns “the use of excessive force”.
Resolution 1199, recalling S/RES/1160, was adopted after the situation worsened, following the description of the situation as an expressly threat to peace and security in the region, in exercise of the powers of Chapter VII of the UN Charter; this decision: demands to the Federal Republic of Yugoslavia and Kosovo Albanian leadership a total cease of violence and the start of a political process through a \”meaningful dialogue without preconditions\”. It affirms that if the demands of this Resolution and RES/1160 are not fulfilled, The Security Council will consider \”the possibility of adopting new and additional measures to maintain or restore peace and stability in the region.\”
Yugoslavia\’s resistance to implement the measures of RES/1160 and RES/1199, along with the inability of the Security Council to take coercive measures (because of Russia and China’s opposition), led NATO to launch on 13th October 1998, an ultimatum to the FRY to yield to the demands of the Security Council.
From previous agreements, through Resolution 1203 , reaffirmed that the deteriorating situation in Kosovo represented a constant threat to peace and security in the region; this approved and demanded to be put up missions previously agreed verification; it reaffirmed the need to comply with the measures proposed in previous resolutions. Consequently, the OSCE launched the Verification Mission, this lead to the NATO’s air verification mission over Kosovo.
After diplomatic talks of the Rambouillet Conference, the Contact Group proposed that autonomy be monitored and secured exclusively by \’peace\’ military force that NATO would establish in Kosovo. The text was presented to the government of the FRY as an ultimatum that Milosevic should had accepted if he didn’t want to face NATO attacks. Milosevic accepted, except for small amendments, the proposed autonomy for Kosovo, but refused to allow that verification would be run by NATO troops (instead of UN) installed in Kosovo, considering this an intolerable violation to the sovereignty of the FRY.
As a consequence of the failure of negotiations and the reinstated military campaign in Kosovo by Serb forces, NATO began to use force against Yugoslavia without previously obtaining authorisation of the Security Council. This resulted, because the United States and its allies would not be exposed to the consequences of raising a draft resolution authorising the NATO military campaign, with the imminent veto of Russia and China.
Analysing the military intervention in Kosovo, NATO acted contrary to the fundamental principles of international law, both based on non-intervention and respect for the sovereignty and the prohibition of the use of force or unilateral threats; in order to stop the internal humanitarian crisis, and to preserve international peace and security as well as balance in the region.
On the other hand, this also was an excessive and disproportionate use of force against Yugoslavia -breaking totally the principle of proportionality according to the exercise of ‘collective self-defence’- intending to destroy the inferior Serb military forces. Regarding the justifications given for the attacks, the UN Charter doesn’t approve \”humanitarian intervention\” in any internal affairs of a State.
Therefore, despite the unfortunate legitimisation by the Security Council and the Secretary General of the UN through Article VII, NATO military intervention in the Balkans lacked legal basis in accordance with the UN Charter.
To finalise I would like to point out that ‘Collective self-defence’ is the definitive guiding principle of international alliances. The research that has been conducted in order to write this coursework showed that it is a fact that the term ‘collective self-defence’ is fraught with controversies and that it also rises controversies amongst other articles in the UN Charter.
In my opinion collective self-defence will always exist and it must be kept as an inherent right of all Nations, and I base my opinion in the fact that all along through history alliances have existed and therefore pacts and organisations, which could enforce collective self-defence or multinational joint task force will keep existing, not necessarily to surpass the UN but to make sure international peace and security is not threatened or in its case restore it.
Having mentioned the Nicaragua and Kosovo cases -both good examples of what is ‘collective self-defence’ and a multinational joint task force- I think both of them should exist and also be legal within the framework of the UN Charter because in both cases peace and security was restored and in the particular case of Nicaragua the situation was solved by the ICJ with elements contemplated inside the UN Charter, this noteworthy to mention because it proves that the UN Charter and the resolutions of the SC have the elements to settle disputes.
One recent event in modern history I would like to mention is the Syrian case, which currently is headless and mismanaged. Governments have not made a real joint effort to put a solution in that conflict, thus the reality we are living today with all its results such as mass migration, a conflict zone and an unstable region. I know Syria hasn’t been attacked by any other State, but it’s been attacked by a non-State actor -in this case ISIS- creating a war inside the country, and spreading it to Iraq.
In order to establish peace and security in the region, a multinational joint task force must be created to accomplish this objective, coordinated efforts always have a better chance to prevail than isolated actions without any coordination or planning, countries in this joint task force should acknowledge the SC of their decision so that the operations could be carried out complying with the UN Charter and its legal framework. Another option could be sending in a Peacekeeping Operation in the region.
Controversies around this concept will keep existing as well as case studies, for this I believe that anticipatory self-defence and collective self-defence must continue to be permissible and legitimate, as long as it complies with the legality of International Law.
...(download the rest of the essay above)