There is an academic debate regarding the first ten words of Article 51. They read, ‘Nothing in the present Charter shall impair the inherent right’ of self- defence. It is the opinion of a number of scholars that ‘[t]he effect of this article is not to create the right but explicitly to recognise its existence.’8 Their contention is that the Charter does not regulate – or regulates only partially – the law on self- defence. Because one could imagine such a doctrine as leaving a hole in the normative framework of the Charter and possibly sucking life from the rest of the Charter, this doctrine can be called the ‘black hole’ theory.
This theory might be or has been proposed in different variants. First, it can be claimed that the right of subjects of any given legal order to defend themselves may not, or cannot, be abrogated and that it is inherent in their existence as
6 See: Christine Gray, International law and the use of force (3rd ed. 2008); Rosalyn Higgins, The legal limits to the use of force by sovereign states: United Nations practice, 37 British Year Book of International Law 1961 (1962) 269–319, for approaches laying stress on practice.
7 ‘[n]ur unkritischer Dogmatismus kann vermeinen, ein System positiven Rechts sei voraus- setzungslos mửglich’; Hans Kelsen, Das Problem der Souverọnitọt und die Theorie des Vửlkerrechts.
Beitrag zu einer reinen Rechtslehre (1920) vi. See Josef L. Kunz, The theory of international law, 32 American Society of International Law Proceedings (1938) 23–34 for a discussion of the role of theory in international law.
8 Leland M. Goodrich, Edvard Hambro, Anne P. Simmons, Charter of the United Nations: com- mentary and documents (3rd ed. 1969) 344.
2.1 Self-defence 7
subjects. In international law self-defence is sometimes seen as inherent in state sovereignty.9 The essential difference from the other variants and the reason why it is seldom claimed today is that it seems to rely on facts alone. Such a right, if it existed, would be based only on the existence of the state, not on international law. The state has no ‘right’ beyond the law or without a norm granting it.10 Right flows only from norms and norms belong to a normative system. If the alleged right does not belong to the normative system ‘public international law’, it is not a right from the perspective of this normative system. The second variant is based on the thought that Article 51 is declaratory of a right established by another normative system. That system may be natural law and, indeed, the French version of Article 51 uses the term ‘droit naturel’. None of the works reviewed here espouse such a basis of the right. Derek Bowett, one of the most prominent proponents of the ‘black hole’ theory, explicitly disavows any connection of Article 51 with natural law.11
The most popular version is a reference to customary international law.12 It is claimed that Article 51 does not purport to regulate the right of self-defence and leaves the customary international law norm on self-defence to do so. The Charter is not a codification of international law as a whole, it is argued, but merely the statute of an international organisation.13 Therefore, it is ‘fallacious to assume that members have only those rights which the Charter accords to them; on the contrary they have those rights which general international law accords to them except and in so far as they have surrendered them under the Charter.’14 On this view, the Charter is not all-encompassing and seems to bow to
9 See Yoram Dinstein, War, aggression and self-defence (4th ed. 2005) 181; Roberto Ago, Eighth report on state responsibility [A/CN.4/318/Add.5–7], 32 Yearbook of the International Law Commission 1980 (1982) Volume II, Part One, 51–70 at 16 (para 7), 53 (para 87): ‘The theory of
“fundamental rights” of States, as then conceived, was the product of pure abstract speculation with no basis in international legal reality, and has since become outdated . . .’.
10 This would be contrary to the duality of Is and Ought. For criticism of sovereignty as a summa potestas: Kelsen (1920) supra note 7; Alfred Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Vửlkerrechtsverfassung (1923).
11 Derek W. Bowett, Self-defence in international law (1958) 187.
12 This variant is espoused inter alia by: Bowett (1958) supra note 11 at 184–188; Hans-Georg Franzke, Schutzaktionen zugunsten der Staatsangehửrigen im Ausland als Ausfluss des Rechts auf Selbstverteidigung der Staaten (1965) 133; Myres S. McDougal, Florentino P. Feliciano, Law and minimum world public order (1961) 235; Schwebel (1973) supra note 3 at 480; C.H.M. Waldock, The regulation of the use of force by individual states in international law, 81 Recueil des Cours 1952 II (1953) 451–517 at 497; unclear: Timothy L.H. McCormack, Anticipatory self-defence in the legislative history of the United Nations Charter, 25 Israel Law Review (1991) 1–42. The Court in Nicaragua espouses a renvoi to customary law: ‘The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a “natural” or “inherent” right of self- defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.’ Nicaragua (1986) supra note 5 at 94 (para 176). In effect, however, the Court sharply diverges from the authors listed.
13 Franzke (1965) supra note 12 at 133.
14 Bowett (1958) supra note 11 at 185.
Uncertainty in International Law 8
general (customary) international law.15 The problem with this argument is that the Charter itself seems intent on completely regulating the law on the use of force.
The main purpose of the United Nations was the establishment of a collective security system (and thereby to maintain international peace and security) and the pacification of inter-member relations, and that means not allowing members to use force. This contradicts the argument that the Charter does not fully regulate that body of law. Also, the proponents of the ‘black hole’ theory are faced with the general prohibition of the threat or use of force established in Article 2(4) of the UN Charter. That paragraph seems to prohibit all threats or uses of force – whether allowed by pre-Charter customary law or not. This charge, in turn, is countered, on the one hand, by acknowledging that the prohibition in Article 2(4) is indeed general, but that the drafters intended to completely exclude self-defence from the prohibition,16 i.e. not as a justification, but as a ‘gap’ in Article 2(4)’s application.
Action undertaken for the purpose of, and limited to, the defence of a state’s political independence, territorial integrity, the lives and property of its nationals (and even to protect its economic independence) cannot by definition involve a threat or use of force ‘against the territorial integrity or political independence’ of any other state. . . . For these reasons we would maintain that the obligation assumed under Art. 2(4) is in no way inconsistent with the right of self-defence recognised in international law.17
The other thrust of the proponents’ writings has the same result, but achieves that aim by a different method. Their argument is that Article 2(4) is not and never was meant to be a prohibition of all threats or uses of force, but only of those threats or uses which are directed ‘against the territorial integrity or political independence or [which are] in any other manner inconsistent with the Purposes of the United Nations’.18 Self-defence is, therefore, also excluded a priori from the purview of Article 2(4), but by a slightly different means.
15 Franzke (1965) supra note 12 at 133 (FN 211) extracts such a meaning from para 3 of the Preamble of the UN Charter.
16 McDougal and Feliciano (1961) supra note 12 at 235; Franzke (1965) supra note 12 at 132. One might argue that Article 51 itself trumps Article 2(4), because of the use of the words ‘[n]othing in the present Charter shall impair’. That formulation seems to exclude self-defence from the ambit of the prohibition and points directly to customary international law. McCormack (1991) supra note 12 at 24 seems to partially base his arguments on these words. For Combacau, on the other hand, it seems clear that ‘the use of force which the exception permits is the same as that which the rule forbids.’ Jean Combacau, The exception of self-defence in U.N. practice, in: Antonio Cassese (ed.), The current legal regulation of the use of force (1986) 9–38 at 11. See also Section 2.5.1.
17 Bowett (1958) supra note 11 at 185–186 (emphasis added).
18 Bowett (1958) supra note 11 at 151–152. D’Amato, while espousing the view that Article 2(4) does not prohibit all threats or uses of force, holds a somewhat different view as to the relation to the exception of self-defence: Anthony Alfred D’Amato, International law: process and prospect (1987) Chs 2–4. This chapter will not focus on the debate regarding the scope of Article 2(4). However, there is vociferous and overwhelming opposition to these designs, e.g. Dinstein (2005) supra note 9 at 86–88; Albrecht Randelzhofer, Article 2(4), in: Bruno Simma (ed.), The Charter of the United Nations. A commentary (2nd ed. 2002) 112–136 at 123–124; Waldock (1953) supra note 12 at 493.
2.1 Self-defence 9
If we were to adopt the ‘black hole’ theory, would this significantly influence the doctrine of self-defence in the post-Charter era? For several reasons this seems unlikely. Most writers intermingle a decision on this point with the question of anticipatory self-defence or with the ‘armed attack condition’. This is problem- atic, because the phrases ‘Nothing . . . right’ and ‘if . . . occurs’ are not two com- pletely incompatible phrases pointing to two diametrically opposite directions with respect to the nature and scope of self-defence. Making Article 51 declarative of customary law is merely portrayed as leading to a specific stance, e.g. on the legality of anticipatory self-defence. On the contrary, the adoption or non-adoption of the recursus to customary international law in Article 51 is of no significant consequence for the scope of self-defence.
Three reasons can be given why the relevance of that doctrinal decision would be severely diminished. First, the recognition of some sort of pre-existing right of self-defence is likely to have been the recognition of the concept or principle of self- defence, not of any specific form or scope of self-defence. While it may be true that most legal orders know the concept of self-defence, it is certainly also true that the rights in domestic laws each have very different content.19 There is no ‘natural’
concept, no ‘natural’ meaning to the term ‘self-defence’ which endures over time.
Self-defence is dependent – as all positive law is – upon positive regulation, not only for its existence (the fact that it is found in many legal systems does not make it positive law in yet another legal system) but also for its scope (the concept is not a static notion which defies the whim of human regulation).
Second, before the imposition of the general prohibition of the threat or use of force the notion of self-defence was not sufficiently distinguished from other forms of self-help to have acquired a distinct standing as a principle of positive law.20 Indeed, one can argue that there cannot be self-defence without a prohibition of force;21 an exception is meaningless without a prohibition. A justification of ‘self- defence’ may have been relevant only with respect to the violation of sovereignty22
19 Josef L. Kunz, Individual and collective self-defense in article 51 of the Charter of the United Nations, 41 American Journal of International Law (1947) 872–879 at 876.
20 Ian Brownlie, The use of force in self-defence, 37 British Year Book of International Law 1961 (1962) 183–268 at 222–223, 241; Stanimir A. Alexandrov, Self-defense against the use of force in international law (1996) 23–26.
21 Bowett (1958) supra note 11 at 119: ‘The right of self-defence could only achieve a full, juridical connotation in a legal system which could characterise every use or threat of force, whether within the technical definition of war or not, as either a delict, or self-defence, or a sanction’; Ago (1982) supra note 9 at 52 (para 83).
22 As late as 1949 the International Court of Justice in the Corfu Channel case – which is frequently cited as a precedent for the law on self-defence (e.g. Waldock (1953) supra note 12 at 499–503;
Robert Y. Jennings, Arthur Watts (eds), Oppenheim’s international law (9th ed. 1992) Volume 1, 421) – did not refer in its deliberations to the ius contra bellum and its exceptions, but deliberated only upon the question of a violation of Albania’s sovereignty, which can be violated by non-forcible means as well as by the use of force. ‘The Court . . . gives judgment that the United Kingdom did not violate the sovereignty of the People’s Republic of Albania . . .’ Corfu Channel (United Kingdom v.
Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949) 4 at 36. It seems that the Court and the parties were still arguing and thinking in terms of pre-Charter legal categories.
Uncertainty in International Law 10
or territorial integrity, which were then prohibited in times of peace as well. The Charter prohibits a means of action (use of force) not prohibited in 1837 and one can argue that the remarks in the correspondence pertaining to the Caroline inci- dent did not therefore concern self-defence as justification for an otherwise illegal use of force.23
Third, if Article 51 declares customary international law competent to regulate Charter-based self-defence, is that reference not dynamic rather than static?
Is it not customary international law on self-defence as it stands today, rather than that of 1837, 1920 or even of 1945?24 Is it not conceivable, or even more likely, that customary international law has evolved after the coming-into-force of the Charter? Is it not more likely that it has changed in the direction of the Charter’s aims – the minimisation and outlawry of the unilateral threat or use of force?25 Thus it would be for those who argue this theory to prove that the conduct they favour is still allowed under customary international law as it stands today.
In the end the decision we make regarding the ‘black hole’ theory decides where one’s ‘source’ of the law of self-defence lies: it is either exclusively an interpretation of the Charter or an integration into the framework of the Charter of content from other sources such as customary or natural law. The source remains the Charter in either case because as a matter of treaty obligation Article 51 is still valid for member states. That article contains the words ‘if an armed attack occurs’, whether or not there is a black hole. The power of that hole cannot un-write the Charter. This leads us to the next task: to ascertain whether an
‘armed attack’ is a necessary condition for the exercise of self-defence under the UN Charter.26
23 Roberto Ago classifies the Caroline incident under the heading of ‘necessity’, rather than ‘self- defence’. Ago (1982) supra note 9 at 39–40 (para 57), 65–66 (para 113). He is critical of those who do not see Article 51 as all-encompassing: ‘The reason is largely that many of these writers remain wedded to notions and to a terminology – which this writer regards as incorrect – drawn from a relatively antiquated portion of State practice with which they are more familiar. It is no accident that, in their arguments, they often cite practical cases, such as that of the Caroline and others . . .’
Ago (1982) supra note 9 at 65 (para 113).
24 In favour of a dynamic declaratory theory (and consequently restrictive): Gray (2008) supra note 6 at 117–118. Even those who deny a declaratory function would rather support a dynamic refer- ence: Mary Ellen O’Connell, The myth of preemptive self-defense, ASIL Task Force Papers (August 2002), at: www.asil.org/taskforce/oconnell.pdf at 13. Favouring – if accepted – a static reference (as of 1945), but denying the declaratory theory: Brownlie (1962) supra note 20 at 195–196, 241, 243.
25 Indeed some authors claim that the customary law as it stood in 1945 was equivalent to Article 51, rather than the other way around. Ago (1962) supra note 9 at 67 (para 114); Ian Brownlie, International law and the use of force by states (1963) 279–280.
26 In the judgment in the Armed Activities case, the Court has rejected going outside the Charter:
‘Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State . . . beyond these parameters.’ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Merits, Judgment of 19 December 2005, ICJ Reports (2005) 168 at 223 (para 148) (emphasis added).
2.1 Self-defence 11