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To enable us to appreciate the Article 51 exception, it is important that we place the article side by side with Article 2(4):
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
Article 51
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. 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 any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Points to note from the wordings:
• Art 51 and 2(4) do not exactly correspond
• Not every use of force contrary to Art 2(4) may be responded to with armed self defence
• Armed attack in Art. 51 is much narrower than “threat or use of force”
According to Bruno Simma, et al, in their commentaries on the United Nation’s Charter, if Art. 51 is read in conjunction with 2(4), the stunning conclusion to be reached is that any state affected by another state’s unlawful use of force not reaching the threshold of an “armed attack” is bound, if not exactly to endure the violation, then to respond only by means falling short of the use or threat of force, which are often ineffective. Even when the action of another state amounts to “armed attack”, the state that wants to use the defence of self defence must observe the principle of proportionality, necessity and immediacy and report immediately to the SC the measures taken and discontinue as soon as the latter has taken measures to restore international peace and security.
• The ICJ affirmed that not every use of force is at once to be considered as an armed attack (see paragraph 210 of the Nicaragua judgement, ICJ Reports, 1986, p. 110). The Caroline incident, from where the issue of immediacy, proportionality and necessity, derive, is an interesting study of that section. Self defence must, in addition to the charter incorporated conditions, meet the cumulative requirements of immediacy, necessity and proportionality. These requirements meet with common sense. “It would be unthinkable to kill a man who merely slapped you, and argue that you acted in self defence.” Such action cannot meet the proportionality condition. Self defence must also have a clear purpose to achieve and it must be swift. It is not meant to last long. Summarily, there are clear reasons to say that the right of self defence is construed strictly. This is because self defence is but an exception to the general rule against the use of force, which is in line with the purpose of the UN. It is logical that the drafters of the UN treaty could not have intended to use the defence of self defence and destroy the cardinal purpose of the San Francisco Treaty.
The restriction on the unilateral use of force does not in any way lower the seriousness of terrorism as a form of war. Terrorism is no doubt one of the greatest evils of our time. It a crime against humanity and it can never be justified. This view seems to be shared by a majority of nations and commentators. This explains why there seems to be unanimity of opinions on the need to tackle global terrorism. The point of departure however is on methodology. The United Nations swiftly passed resolution 1368 and 1373. It called on the international community to cooperate in fighting terror. It resolved that terrorism constitutes a threat to international peace and security but there is an ongoing controversy on whether the UN resolution approved the use of force against terrorism.
The “war on terror” however raises several unanswered questions. Assuming that the war in Afghanistan was right to root out Al Qaeda, what of the war in Iraq? In retrospect can it be said that the war on terror meets the requirement of necessity and proportionality? How do we construe Israeli’s reaction to the kidnapping of its soldiers by Hezbollah? If we agree that Israel has a right to self defence, could we also agree that its actions are in conformity with the Caroline principles of proportionality?
These are troubling questions that have set ugly precedents. The issues have also been compounded by the argument in support of humanitarian intervention that is the right of any state to intervene in another country to address human rights issues.
Sobering conclusions must be drawn from recent happenings. First, the collective security measures on which the foundation of world peace were erected are today weak. The Security Council seems torn apart by ideological differences. The use of veto power has made it practically impossible to come to an immediate decision on restoration of international peace and security at a time like this. The UN must speed up its reform of the Security Council to make it more democratic.
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Wilfred Mamah
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