No. 15: January-June 2016

Olivier Corten


Academic Foresights

How do you analyze the present status of self-defence?

According to Article 51 of the UN Charter, ‘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 […]’. In 1945, self-defence was thus conceived as a legal exception to the general prohibition on the use of force in international relations (art. 2(4) of the UN Charter) and it was basically limited by two different (and cumulative) conditions: (1) self-defence is only admissible as a response to an ‘armed attack’ by one State against another State; (2) self-defence is only admissible is it is ‘necessary’, which is not the case when the Security Council has taken appropriate measures. However, those two conditions were challenged, particularly after 9/11. From that time, the US developed a broad conception of self-defence, allowing States to intervene against ‘terrorist groups’ wherever they are located, without being obliged to establish the existence of a previous armed attack by another State, or requiring the Security Council to take appropriate measures. This conception, often designated as ‘preventive self-defence’, was supported by some of its allies, notably Israel and The UK. However, the UN Charter was never amended or informally changed, due to the strong opposition of a vast majority of States. More particularly, the Non Aligned Movement insisted that the traditional rules enshrined in the Charter were sufficient to address the current threats to international peace and security, and considered that self-defence could not be broadened or re-interpreted.

In 2010, the International Criminal Court State parties expressly confirmed that an ‘act of aggression means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State […]’. A contrario, a threat (whether imminent or not) or a use of force by a non-State actor are not equivalent to an act of aggression and, therefore, may not trigger a right of self-defence according to the UN Charter. In brief, the broad conception of self-defence supported by the US has not been accepted by the international community of States as a whole, even if it has gained some support by some States, particularly in the last years..

In your opinion, how will the situation likely evolve over the next five years?

It is very difficult to determine what will the evolution of this debate in the next years. What is more than probable, however, is that the debate will continue. The Syrian crisis and its consequences have undoubtedly led to a certain strengthening of the broad conception of self-defence. Some Arab States (notably Saudi Arabia) invoked self-defence to support the rebels in Syria and later to Attack ISIL on the Syrian territory, as well as to intervene militarily in Yemen. Turkey, and to a certain extent Russia, affirmed they right to take any military measures against ISIL forces wherever they are. The US, the UK, Australia and Canada, among others, also justified military strikes against ISIL in Syria by invoking self-defence beyond the scope of Article 51 of the UN Charter, at least as originally conceived. France, particularly after the 13 November events, took a similar stance, and it seemed to be followed by the EU member States.

On the other hand, a more orthodox interpretation of the UN Charter has been supported by other States, as can be illustrated by the adoption of SC Res 2249 on 20 November 2015. In this resolution, the Council asked States to take all necessary measures ‘in conformity with international law and the UN Charter’ to fight ISIS. This phrasing is highly ambiguous. It can be used by the US and its allies to claim that their conception of self-defence would have been accepted. On the other hand, it can be convincingly argued that, due to a lack of unanimity between its members, the Council significantly abstained from mentioning self-defence, as it did for example after the 11/9 events (SC Res 1368). On the contrary, the Council (once again) called the States to cooperate in the fight against ISIS, and this would require acting with the consent of the Iraqi but also the Syrian State. In other words, according to the Security Council, the ‘war against terror’ should be led by cooperation and use of multilateral procedures, not by invoking a unilateral right to intervene. In my opinion, this ‘constructive ambiguity’ will probably prevail again in the next few years, as it is very unlikely that a general agreement about the scope of self-defence could be reached in a near future.

What are the structural long-term perspectives?

Basically, two different scenarios can be evoked. The first would be the persistence of this opposition between States supporting a broad conception of self-defence, on the one hand, and those who refuse to challenge the traditional international law as enshrined in the UN Charter, on the other. This would probably mean the persistence of a gap between law and practice, the Charter being broadly interpreted -or even ignored- by the intervening States in the name of the ‘war against terror.’ The second would be an informal modification of the UN Charter enabling States to use self-defence as a means to ensure their ‘self-preservation’ or their ‘vital interests’. In this case, self-defence would no longer be an exception to a strict prohibition of the use of force, but would rather be equivalent to a ‘natural right’ similar to what it existed in the 19th century. In both cases, the multilateral character of the maintenance of peace and security appears to be seriously at risk.

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Olivier Corten is professor at the Université libre de Bruxelles (Belgium) where he is the director of the Centre de droit international. He is the author of numerous publications related to to the law of international peace and scurity, notably The Law against War (Hart, 2010; in French: Le droit contre la guerre, 2e éd., Pedone, 2014) .

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