The meaning of self-defence under article 51 of the United Nations charter
Political science; Public administration; Law; Prisons; Law enforcement
Thesis or dissertation
- © 2000 Emad Al-Sharif. All rights reserved. No part of this publication may be reproduced without the written permission of the copyright holder.
This thesis examines the development of the concept of individual and collective self-defence as expressed in Article 51 of the UN Charter. In doing so, it will analyse the attempts to stretch the scope of the right of self-defence beyond the limits allowed under Article 51 and assess whether such attempts have undermined the Charter regime. The concept of self-defence is seen as part of a series of evolutionary attempts to limit the horrors of war by formulating criteria for the legitimacy of armed force. This study looks at the developments from the racial and religiously- motivated medieval concept of "Just War", and the "defensive" Islamic concept of Jihad, through arbitration and treaty between sovereign states, to the development of the legal doctrine of self-defence, subject to the criteria of necessity and proportionality, established in the Caroline case. The focus is on the modem development of the concept of self-defence in the UN era, has developed within the context of a global collective security system.However, the circumstances of its drafting left Article 51 with a number of ambiguities and inadequacies, which are explored with reference to illustrative examples from recent history. Attention is drawn to the nature and scope of the so-called "inherent right"; the difficulties surrounding the definitions of "armed attack" and "aggression" as events which activate the sight of self-defence; and the unforeseen burden placed on Article 51 as a result of the paralysing effect of the Cold War on the collective security system. A further development in recent years has been a trend to fit Article 51 to the scope of the post-colonial, post-Cold War era, by attempting to enlarge it, both temporally and spatially. The former leads to claims for various forms of anticipatory and retrospective defence; the latter to broader conceptions of the people, territory and governance system to be defended whereby the legal framework of Article 51 is made subject to political and humanitarian considerations. However well-intentioned, such trends would greatly increase the number of exceptions to the prohibition in Article 2(4) and open the door to misuse of the Article 51 provision thereby increasing the danger of threats to peace and security.Clearly, the 1945 conception of self-defence is no longer adequate to deal with the changing force of international relations. Article 51 must change; the question is whether it can do so within the spirit of its nature as an "emergency" response with value especially to weaker and third world nations.
- Department of Law, The University of Hull
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