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Anticipatory Self-Defence in the Legislative History of the United Nations Charter

Published online by Cambridge University Press:  16 February 2016

Timothy L. H. McCormack
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Article 51 of the United Nations Charter states that:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefense 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.

International lawyers are still arguing about the scope of the right of self-defence in Article 51 of the U.N. Charter. Most of the arguments focus on the semantics of Article 51. Those who argue for a “restrictive view” of the provision emphasise the qualifying phrase “if an armed attack occurs”.

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Articles
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Israel Law Review , Volume 25 , Issue 1 , Winter 1991 , pp. 1 - 42
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 For full text of the Charter, U.N. see (1945) 39 Supp. Am. J. Int'l L. 190Google Scholar.

2 See, for example, Brownlie, I., International Law and the Use of Force by States (Oxford, 1963) 272–279CrossRefGoogle Scholar; Goodrich, L.M., Hambro, E. and Simons, A.P., Charter of The United Nations (New York, 3rd ed., 1969) 353Google Scholar; Henkin, L., How Nations Behave (New York, 2nd ed., 1979) 140–143Google Scholar; Jessup, P.C., A Modern Law of Nations (Hamden, Conn., 1968) 164–167Google Scholar; Kelsen, H., The Law of The United Nations (London, 1950) 791–793Google Scholar; Kunz, J.L., “Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations” (1947) 41 Am. J. Int'l L. 872CrossRefGoogle Scholar; Oppenheim, L., International Law (London, 8th ed., edited by Lauterpacht, H., 1954) vol. 1, pp. 297–299Google Scholar.

3 See, for example, Bowett, D.W., Self-Defence in International Law (New York, 1958) 184–192Google Scholar; Brierly, J.L., The Law of Nations (Oxford, 6th ed., edited by Waldock, H., 1963) 416–419Google Scholar; McDougal, M.S. and Feliciano, F.P., Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven, 1961) 233–241Google Scholar; Waldock, H., “The Regulation of the Use of Force by Individual States in International Law” (1952–II) 81 Recueil Des Cours De L'Academie De Droit International De La Haye 455Google Scholar.

4 Henkin, supra n. 2, at 141.

5 Jessup, supra n. 2, at 166.

6 Dinstein, Y., War, Aggression and Self-Defence (Cambridge, 1988)Google Scholar.

7 Id., at 167.

8 Id., at 172-175.

9 Article 107 provided a transitional right for individual Member States to use force against the enemy powers of World War II. The other exceptions for the use of force contained in the Charter are all collective. Article 51 also includes the right of “collective self-defence”. Article 53(1) allows for enforcement action by regional arrangements or agencies in particular circumstances. Article 42 empowers the Security Council to use force in certain circumstances to maintain international peace and security.

10 Done at Vienna on 23 May 1969; entered into force on 27 January 1980. 24 U.N. GAOR, U.N. Doc. A/CONF. 39/27 (1969).

11 Article 4 of the Vienna Convention states that: “Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention only applies to treaties which are concluded by States after the entry into force of the present Convention with regard to such States”.

12 Done at Vienna on 21 March 1986. 41 U.N. GAOR, U.N. Doc. A/CONF. 129/15 (1986).

13 Article 5 of the Treaty reads: “The present Convention applies to any treaty between one or more States and one or more international organisations which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation, without prejudice to any relevant rules of the organisation”.

14 Article 4 of the 1986 Convention adopts the same wording as Article 4 of the 1969 Convention. See supra n. 11.

15 (1962) I.C.J. Reports of Judgments, Advisory Opinions and Orders 151.

16 Id., at 184 (emphasis added).

17 Judge Spender referred to both of these as secondary sources for interpretation. Id., at 190.

18 Document 739; I/1/A 19(a) reprinted in Documents of the United Nations Conference on International Organisation (hereinafter referred to as U.N.C.I.O. Documents) vol. 6, p. 717, at 720Google Scholar.

19 In fact the United Nations was established prior to the cessation of hostilities in World War II. The founding conference at San Francisco commenced on 25 April 1945 before the fighting against Germany had ceased, and was concluded on 26 June 1945 before Japan had surrendered. See Evatt, H.V., The United Nations (1948) 3–7CrossRefGoogle Scholar.

20 Although international, membership of the League was hardly universal. The U.S. had not ratified the Treaty and the U.S.S.R. was expelled from membership in 1939. Fifty-nine States were members as of 1 April 1935. For details of League membership see Hudson, M.O., “The Members of the League of Nations” (1935) 16 Br. Yrbk. Int'l L. 130Google Scholar.

21 (1919) Consolidated Treaty Series 195Google Scholar. Text of the Covenant is also reprinted in “Official Documents” (1919) 13 Supp. Am. J. Int'l L. 128–140Google Scholar.

22 The preamble of the Covenant reads as follows:

“The High Contracting Parties, in order to promote international co-operation and to achieve international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and scrupulous respect for all treaty obligations in the dealings of organised peoples with one another, agree to this Covenant of the League of Nations”.

23 Articles XII, XIII and XV.

24 This right was preserved by para. 7 of Article XV:

“If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they consider necessary for the maintenance of right and justice”.

25 The Draft Geneva Protocol of 1924 was adopted by the League Assembly on 2 October 1924, but never ratified. The instrument was entitled “Protocol for the Pacific Settlement of International Disputes” (1924) League of Nations Official Journal, special supplement no. 24, Annex 18, p. 136Google Scholar. The text of the draft Protocol is reprinted in Sohn, L.B., Cases and Materials on World Law (1950) 781–790Google Scholar.

26 Article 2 of the Protocol stated that: “The signatory states agree in no case to resort to war either with one another or against a state which, if the occasion arises, accepts all the obligations hereinafter set out, except in the case of resistance to acts of aggression or when acting in agreement with the Council or Assembly of the League of Nations in accordance with the provisions of the Covenant and of the present Protocol”.

27 Article 10.

28 Article 11.

29 Bowett, supra n. 3, at 127.

30 Ibid.

31 “General Pact for the Renunciation of War”, signed in Paris on 27 August 1928, (1929) 94 League of Nations Treaty Series, Treaty No. 2137, p. 57Google Scholar. The text of the Pact is also reprinted in “Official Documents” (1928) 22 Am. J. Int'l L. 171–173Google Scholar.

32 The U.S. State Dept. publication Treaty for the Renunciation of War (1933), lists the fifteen signatory States and the forty-seven “adhering” States (i.e., those States that had been invited and had chosen to adhere to the Pact). The publication also includes the text of the Pact and other Papers relevant to the drafting and signing of the Pact. By 1938 Brazil had also chosen to adhere to the Pact bringing the number of States to sixty-three. See (1939) 33 Supp. Am. J. Int'l L. 865Google Scholar.

33 Article 1.

34 The U.S. Government said, inter alia: “There is nothing in the American draft of an anti-war treaty which restricts or impairs in any way the right of self-defense. That right is inherent in every sovereign state and is implicit in every treaty”. Note of the Government of the United States to the Governments of Belgium, Czechoslovakia, France, Germany, Great Britain, Irish Free State, Italy, Japan and Poland, 23 June 1928, U.S. Dept. of State, Treaty for the Renunciation of War (1933) 56Google Scholar.

35 Notes Exchanged Between The United States and the Other Signatory Governments, June 20, 1927 - July 20, 1928, id., at 9-86.

36 Complete text of the Dumbarton Oaks Proposals reprinted in Document 1; G/1 “The United Nations Dumbarton Oaks Proposals for a General International Organisation”. U.N.C.I.O. Documents, vol. 3, p. 1Google Scholar.

37 Charter of the United Nations, supra n. 2.

38 Id., at 44.

39 In fact Chapter 1 contained the purposes and Chapter 2 the principles as is the case with Articles 1 and 2 of the U.N. Charter.

40 Russell, R.B., A History of the United Nations Charter (Washington, 1958) 456Google Scholar.

41 Ibid.

42 Id., at 656.

43 Id., at 456.

44 Ibid.

45 Chapter II, para. 1 of “The United Nations Dumbarton Oaks Proposals for a General International Organisation” states that: “The Organisation is based on the principle of the sovereign equality of all peace-loving states”, supra n. 36.

46 Chapter II, para. 3 of the Dumbarton Oaks Proposals.

47 Russell, supra n. 40, at 456.

48 Doc. 739; I/1/A/19(a), U.N.C.I.O. Documents, vol. 6, pp. 717, 718Google Scholar.

49 Doc. 2; G/7(q)(1) “Amendments to the Dumbarton Oaks Proposals Presented by the Egyptian Delegation”. U.N.C.I.O. Documents, vol. 3, p. 453, at 454Google Scholar.

50 Doc. 2; G/14(n) “Amendments to the Proposals for the Maintenance of Peace and Security Agreed on at the Four Powers Conference at Dumbarton Oaks, Supplemented as a Result of the Conference of Yalta, Submitted by the Ethiopian Delegation”. U.N.C.I.O. Documents, vol. 3, p. 558Google Scholar.

51 Doc. 2; G/14(r) “Proposals of the Delegation of the Republic of Bolivia for the Organisation of a System of Peace and Security”. U.N.C.I.O. Documents, vol. 3, p. 577, at 578Google Scholar.

52 Doc. 2; G/7(i) “Comments of the Chilean Government on the Dumbarton Oaks Proposals”. U.N.C.I.O. Documents, vol. 3, p. 282, at 283Google Scholar.

53 Doc. 2; G/14(b) “Observations of the Czechoslovak Government on the Dumbarton Oaks Proposals”. U.N.C.I.O. Documents, vol. 3, p. 466, at 467Google Scholar.

54 Doc. 2; G/7(m) “Comments of the Honduran Government on the Dumbarton Oaks Proposals”. U.N.C.I.O. Documents, vol. 3, p. 349Google Scholar.

55 Doc. 2; G/7(c) “Opinion of the Department of Foreign Relations of Mexico Concerning the Dumbarton Oaks Proposals for the Creation of a General International Organisation”. U.N.C.I.O. Documents, vol. 3, p. 54, at 65Google Scholar.

56 Doc. 2; G/7(l) “Summary of Remarks Presented by the Government of Paraguay on the Dumbarton Oaks Proposals”. U.N.C.I.O. Documents, vol. 3, p. 345, at 347Google Scholar.

57 Doc. 2; G/14(f) “Amendments to the Dumbarton Oaks Proposals Submitted by the Delegation of New Zealand”. U.N.C.I.O. Documents, vol. 3, p. 486Google Scholar.

58 Doc. 2; G/7(p) “Delegation of Ecuador to the United Nations Conference on International Organisation”. U.N.C.I.O. Documents, vol. 3, p. 393, at 399Google Scholar. See also Doc. 42; P/10 “Verbatim Minutes of the 5th Plenary Session”. U.N.C.I.O. Documents, vol. 1, p. 343, at 369Google Scholar.

59 Doc. 2; G/7(a) “The Position of the Government of Uruguay Respecting the Plans of the Postwar International Organisation for the Maintenance of Peace and Security in the World”. U.N.C.I.O. Documents, vol. 3, p. 26, at 30Google Scholar. See also Doc. 24; P/8 “Verbatim Minutes of the 4th Plenary Session”. U.N.C.I.O. Documents, vol. 1, p. 281, at 299Google Scholar.

60 Some commentators have recognised that a restrictive interpretation of Article 51 unrealistically limits a State threatened by the use of force. However, these same commentators have been reluctant to endorse a right of anticipatory self-defence for fear that such a right will be abused by States as a cloak for illegal activity. To deal with the dilemma these commentators have argued that Article 51 does not permit anticipatory self-defence but that action which falls outside the qualifying criteria of Article 2(4) is not prohibited by that Article. See, for example, Stone, J., Aggression and World Order (London, 1958) 42–44Google Scholar; and more recently D'Amato, A., “Israel's Air Strike upon the Iraqi Reactor” (1983) 77 Am. J. Int'l L. 183CrossRefGoogle Scholar; and D'Amato, A., “The Legality of Israel's Destruction of Iraq's Nuclear Reactor” (1988) 10 Middle East Focus 12–14Google Scholar.

61 Supra n. 51.

62 Supra n. 53. For other Smaller Powers recommendations see references above, nn. 41-51.

63 Evatt, supra n. 19, at 18, 19.

64 Evatt probably used “typical” to mean a territorial invasion by land, sea or air. Now, 40 years after he wrote on the subject, such a use of force is not so typical. A typical use of force now may involve a limited attack using guided missiles and weapons fired from unseen sources outside a nation's territory or the use of territory to mount subversive terrorist raids into a neighbouring State's territory. Such attacks do not violate territorial integrity in the sense that they do not deprive a nation of any of its territory. It could be argued that such attacks only affect a nation's use of its territory. It is inconceivable that Evatt would argue that such uses of force are beyond the scope of Article 2(4).

65 Doc. 810; I/1/30 “Report of the 12th Meeting of Committee I/1”. U.N.C.I.O. Documents, vol. 6, p. 342Google Scholar.

66 Supra n. 48, at 720 (emphasis added).

67 Doc. 784; I/1/27 “Summary Report to the 11th Meeting of Committee I/1”. U.N.C.I.O. Documents, vol. 6, p. 331, at 334Google Scholar.

68 Ibid. (emphasis added).

69 Supra, text before n. 66.

70 Supra n. 67 (emphasis added).

71 Bowett, supra n. 3, at 151-152.

72 Supra n. 60.

73 Bowett, supra n. 3, at 151.

74 Russell, supra n. 40, ch. 27: “Regional and Special Security Arrangements”, at 688-712.

75 Doc. 1; G/1 “The United Nations Dumbarton Oaks Proposals for a General International Organisation”. Chapter VII: “Arrangements for the Maintenance of International Peace and Security Including Prevention and Suppression of Aggression”, Section C. “Regional Arrangements”, Paragraph 2. U.N.C.I.O. Documents, vol. 3, p. 1, at 17, 18Google Scholar.

76 Russell, supra n. 40, at 688.

77 The Act of Chapultepec was a 3-part agreement on regional security adopted by the Inter-American Organisation of States at their Mexico City conference on Problems of War and Peace, February 21-March 8, 1945. The title, “Act of Chapultepec” was derived from the name of the castle where the meetings were held. The full name of the agreement was The Inter-American Reciprocal Assistance And Solidarity (Act of Chapultepec). The text of the Act is reproduced in U.S. Dept. of State, Treaties and Other International Agreements of the United States of America 1776-1949, Vol. 3, “Multilateral 1931-1945”, p. 1024Google Scholar.

78 Doc. 2; G/28 “Joint Draft Amendment to Chapter VIII, Section C of The Dumbarton Oaks Proposals by the Delegations of Chile, Colombia, Costa Rica, Ecuador, and Peru”. U.N.C.I.O. Documents, Vol. 3, p. 620Google Scholar.

79 Id., at 621.

80 Id., at 620.

81 Doc. 2; G/14(l) “Amendments to the Dumbarton Oaks Proposals Submitted on Behalf of Australia”. U.N.C.I.O. Documents, vol. 3, p. 543, at 552Google Scholar.

82 Evatt, supra n. 19, at 27.

83 Australia signed the Anzus Defence Treaty with New Zealand and the United States in September 1951.

84 Russell, supra n. 40, at 688.

85 Ibid. See also the proposed amendment by the Egyptian delegation Doc.2; G/7(q)(1), U.N.C.I.O. Documents, vol. 3, p. 453, at 460, 461Google Scholar.

86 Russell, supra n. 40, at 688.

87 Supra n. 53, at 470.

88 Doc. 2; G/14(c) “Suggestions of the Turkish Government Concerning the Proposals for the Maintenance of Peace and Security Agreed on at the Four Power Conference at Dumbarton Oaks”. U.N.C.I.O. Documents, vol. 3, p. 480, at 483Google Scholar: “… the Turkish delegation earnestly desires the acceptance of regional arrangements providing for automatic action as constituent elements of collective security, on condition that they should be conceived for the exclusive purpose of defence and that the signatory states which might have to avail themselves thereof, should be required to report within the shortest possible time to the Council on the emergency measures which they might have been compelled to take in carrying out these arrangements, as well as on the justification of the urgency of the action”.

89 Doc. 2; G/7(k) “Suggestions of the Belgian Government Concerning the Proposals for the Maintenance of Peace and Security Formulated at the Four-Power Conference held at Dumbarton Oaks and Published on October 9, 1944”. U.N.C.I.O. Documents, vol. 3, p. 331, at 334Google Scholar: “…in the case where immediate action might be necessary the application of coercive measures provided for by special regional arrangements should not be held in abeyance pending the Security Council's authorisation; it would, of course, behove the Security Council to retain control at all times, of the action undertaken, and it would have the right to suspend execution of such action”.

90 Doc. 2; G/7(0) “Amendments Proposed by the French Government to the Proposals Relative to the Establishment of a General International Organisation”. U.N.C.I.O. Documents, vol. 3, p. 383, at 387Google Scholar.

91 Doc. 2; G/14(w)(1) “Amendment to the Dumbarton Oaks Proposals, Submitted by the Delegation of the Soviet Union”. U.N.C.I.O. Documents, vol. 3, p. 601Google Scholar.

92 Russell, supra n. 40, at 699.

93 Supra n. 80.

94 Supra nn. 79-81.

95 Supra n. 87.

96 Doc. 55; P/13 “Verbatim Minutes of the Sixth Plenary Session”. U.N.C.I.O. Documents, vol. 1, p. 416, at 437Google Scholar.

97 See supra n. 88.

98 Ibid. (emphasis added).

99 Russell, supra n. 40, at 698.

100 Professor Schachter shares this view. He argues that: “The [Article 51's] link with the Chapultepec Treaty provides a reason for the inclusion of the words “if an armed attack occurs” and explains why it was not said that self-defence is limited to cases of armed attack”: “The Right of States to Use Armed Force” (1983/1984) 82 Michigan L. R. 1620, at 1634Google Scholar.

101 For reference to the full text see supra n. 77.

102 Russell, supra n. 40, at 699.

103 Ibid.

104 Id., at 700.

105 Doc. 576; III/4/9 “Summary Report of the Fourth Meeting of Committee III/4”. U.N.C.I.O. Documents, vol. 12, p. 679, at 681, 682Google Scholar.

106 Russell, supra n. 40, at 703.

107 Supra n. 99 arid the following text.

108 Supra text at nn. 99-103.

109 For example, in discussing Article 2(4) in Committee I/1 the French delegate raised the point that there was a discrepancy in the French and English texts (Doc. 784; I/1/27 “Summary Report of the Eleventh Meeting of Committee I/1”. U.N.C.I.O. Documents, vol. 6, p. 331, at 335Google Scholar.) There followed a lengthy discussion on reconciling the differences before the Coordination Committee and proposals were adopted to regolve the problem. (Doc. WD 424; CO/188 “Summary Report of Twenty-Fourth Meeting of Coordination Committee”. U.N.C.I.O. Documents, vol. 17, p. 162, at 164, 165Google Scholar).

110 Doc. WD 435; CO/199 “Summary Report of the Thirty-Fifth Meeting of the Coordination Committee”. U.N.C.I.O. Documents, vol. 17, p. 276, at 287Google Scholar. (emphasis added).

111 Ibid. (emphasis added).

112 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, (1986) I.C.J. Reports 14.

113 Id., at paras. 36-56, pp. 28-38.

114 Id., at paras. 187-193, pp. 98-103.

115 Inter alia, the court said: “The Parties agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and proportionality of the measures taken in self-defence. Since the existence of the right of collective self-defence is established in customary international law, the Court must define the specific conditions which may have to be met for its exercise, in addition to the conditions of necessity and proportionality to which the Parties have referred”. Supra n. 112, at para. 194, p. 103.

116 The Caroline case arose from an incident related to the Canadian rebellion in 1837. The Caroline was not a case in the sense of a formal legal action. Rather, it was resolved by correspondence between the British and U.S. governments. For an explanation of the case see Moore, J.B., International Law Digest (1906) Vol. II, pp. 409–414Google Scholar.

117 British and Foreign State Papers, Vol. 30, p. 193Google Scholar.

118 Two examples from Security Council practice will serve to illustrate this point. (1) In attempting to justify the legality of Israel's bombing of the Iraqi nuclear reactor, the Israeli representative to the U.N., Prof. Yehuda Blum, argued that Israel's action was both necessary and proportionate to the threat it faced. Prof. Blum said, inter alia: “We sought to act in a manner which would minimize the danger to all concerned, including a large segment of Iraq's population. We waited until the eleventh hour after the diplomatic clock had run out, hoping against hope that Iraq's nuclear arms project would be brought to a halt … Our Air Force's operation was consciously launched on a Sunday, and timed for late in the day, on the assumption that the workers on the site, including the foreign experts employed at the reactor, would have left”. 36 U.N. SCOR (2280th mtg)57, U.N. Doc. S/P.V. 2280 (12 June 1981).

(2) Similarly, the U.S. representative to the Security Council in 1986, Mr. Vernon Walters, argued that the U.S. bombing of Libya in that year was justified as a necessary and proportionate act of self-defence. He said, inter alia, that: “This necessary and proportionate action was designed to disrupt Libya's ability to carry out terrorist acts and to deter future terrorist acts by Libya. In carrying out this action, the United States took every possible precaution to avoid civilian casualties and to limit collateral damage”. 41 U.N. SCOR (2674th mtg)15, U.N. Doc. S/P.V. 2674 (15 April 1986).

119 See supra, text at n. 117.

120 For example, in referring to Germany's claim that it was compelled to attack Norway to forestall an allied invasion from there, the Tribunal claimed that “preventive action in foreign territory is justified only in the case of an instant and overwhelming necessity for self-defence, leaving no choice of means and no moment for deliberation”. International Tribunal, Military, Nuremberg Judgment and Sentences, October 1946Google Scholar. Reprinted in (1947) 41 Am. J. Int'l L. 205Google Scholar.

121 Supra n. 112, at para. 195, p. 103.

122 Id., at para. 194, p. 103.

123 Id., at paras. 172-173, pp. 347-348.

124 See “Self-Defense and the Rule of Law” (1989) 83 Am. J. Int'l L. 259CrossRefGoogle Scholar, where Professor Schachter rejects the notion that self-defence is non-justiciable in matters of national security for States and considers various ways to enhance the individual security of States through international law and legal institutions.

125 Professor Schachter says that much of the debate about Article 51 and anticipatory self-defence in recent years has focused on the consequences of adopting the alternative interpretations. He argues that Article 51 should not exclude anticipatory selfdefence but that this does not automatically mean that the right “broadly authorises pre-emptive strikes and anticipatory self-defence in response to threats”. He considers the restrictive requirements of necessity and proportionality and how they may apply in different factual situations. Schachter, supra n. 100, at 1633-1638.

126 At the time of writing the U.S. was allegedly contemplating unilateral force to destroy the suspected chemical weapons plant in Libya, before the plant became operational, in order to prevent Libya acquiring a chemical weapons stockpile.