Self-defence under Article 51: A Right or Weapon

-Adv. Bhuvanesh Dileep Prabhukhanolkar

Introduction

We often heard about action taken to ‘protect a person or property of oneself or of

another person’ is justifiable and not punishable because of the term self-defence. This article

revolves around the same term of self-defence, however not with the reference to a person or

property but with the explicit reference to one nation as a whole. We have international entities

like United Nations to maintain and keep international peace but what if any country found

itself in a situation like an armed attack by some other country and the time which will be

required to get assistance from UN Security Council may cost lives and property of innocent

citizens. To deal with such a situation, UN Charter has Article 511 which deals with individual

or collective self-defence by a country or group of countries against an armed threat. This

article will throw some light upon how important the article 51 is and also how it helped many

countries in protecting their liberty, and how some countries abused this article to justify the

wrong committed by them under the veil of self-defence. What are the shortcomings of this

article and how it can be cured.

1
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.
Meaning of Armed attack

For self-defence to come into play, the condition precedent is ‘Armed Attack’. So

conversely, there can be no act of self-defence without Armed Attack on the state. The main

questions regarding armed attacks are: Where? Of what gravity? By whom? Let’s find answers

to those questions.

The Place of the incident (Where?):

Each country has its own defined geographical territory. So, it is obviously that

any attack across the defined territory will come under the purview of an armed attack,

but the attack on any territorial domain of the state will also come under the scope of

this term. The territorial domain of state includes Territorial Sea & Warship

representing the particular countries. Now we need to appreciate the vastness of the

concept of Territorial Domain. In the famous case “Oil Platforms (Islamic Republic of

Iran v. United States of America)2”, it was observed by the International Court of

Justice that, attack on any commercial ship bearing the Flag of the state can be

considered as an armed attack on the territorial domain of the state.

The Gravity of the Attack (of what gravity):

In respect of the gravity of attack, there is no such measure or limit mentioned

in the charter which will differentiate a grave attack from the minor one. Thus, the

gravity of attack to constitute armed attack remains the question left to the judgement

of the court.

2
I. C. J. Reports 1996, p. 803
 Perpetrator (by Whom):

Whether an attack by a citizen or armed group or terrorist group on the state will

be considered as an armed attack? Initially, the court was of the view that only in the

case of attack by one state on another state, the concept of the armed attack will be

applicable and the right to self-defence as envisaged in article 51 can be invoked. This

view was reflected in “Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, Advisory Opinion 3”. In the referred case, Israel built

the security wall in the Palestinian Territory and during the discussion on the legality

of the wall, the court discussed the concept of armed attack. The court noted that only

an attack attributable to a foreign state will be construed as an Armed attack.

In 2001, the USA initiated military actions in Afghanistan, against actions of

terrorist groups, which were not attributable to the government of Afghanistan. The

term armed attack was defined to include actions that are attributable to foreign state.

Hence to justify the actions of United States in Afghanistan, the UN Security council,

later in 2001 opted the resolutions 13684 and 13735, which widen the scope of the term

armed attack to include the attacks done by militant groups.

Meaning of Self defence

The right of self-defence forms an exception to the rule under Article 2(4)6 of United

Nation charter which laid down prohibition on the use of force by one state against another.

So, the combined reading of Article 51 along with Article 2(4) provides the meaning that no

3
I. C. J. Reports 2004, p. 136 para 139.
4
https://digitallibrary.un.org/record/448051?ln=en accessed on 10th August 2022
5
https://digitallibrary.un.org/record/449020?ln=en accessed on 10th August 2022
6
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.
member shall use force against another or give threats to another, however, his hands are not

tied to enable him to fight for his defence. However, the gravity of the action taken under self-

defence should be reasonable and free from malice.

Under Article 217 of Responsibility of States for Internationally Wrongful Acts 2001,

self-defence is defined as, “The wrongfulness of an act of a State is precluded if the act

constitutes a lawful measure of self-defence taken in conformity with the Charter of the United

Nations.”

Article 51 of UN Charter characterized self-defence as an inherent right of the state as

it is directly linked to the sovereignty of the state. Hence conversely it can be said that self

defence can not be invoked against any random attack against any individual unless it is

directed towards that particular state or its government.

Another aspect of the term self-defence is whether the state can use self-defence in

anticipation of an armed attack. Literal interpretation of Article 51 indicates the attack must

have taken place to invoke the provision of self-defence. To cover an act under the scope of

self-defence, the occurrence of attack or imminent threat of attack is mandatory. Hence one

can not take action in the name of preventive self-defence.

Obligation to report

The Article 51 of UN Charter while conferring the right of self-defence also cast an

obligation on the victim state to report its actions with the wording “….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

7
https://legal.un.org/avl/ha/rsiwa/rsiwa.html accessed on 10th August 2022.
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.”

The victim state is required to report the actions taken by it under the right of self-

defence to the UN Security Council immediately. Here the obligation to report to UNSC is

with the intention to enable UNSC to take timely action to maintain international peace and

prevent the escalation of the violence between states.

The exercise of the right of self-defence is permissible till the UN Security Council

takes necessary actions to maintain international peace. Which conversely means if the UNSC

does not take any action even after reporting the act of self-defence, the victim state may

continue to act under the same right to protect itself from threats to its sovereignty or any

imminent threats of armed attack.

In the famous Nicaragua Case8, ICJ noted that though the wordings of self defence in

UN Charter and International Customary Law is similar, it has different existence and

application. As per the international customary law, there is no obligation to report the actions

taken under self-defence. Hence unlike UN Charter, International Customary Law will not

decide the legality of the actions taken under self-defence based on reporting of the same.

Article 51 as a means to justify the mistakes

The article 2(4) prohibits the use of force by one state against another state. However,

the concept of collective self-defence under article 51 is used as an exception to the article 2(4).

The scheme here is when one state is willing to attack on another state, it first arranges

help requests from the parts of the target state. It publicly shows that the attacking state is

actually helping the requesting parts to become independent and free from the abuse of the

8
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392.
target state. This whole scheme covers the alleged armed attack under the veil of article 51,

providing a workaround from the article 2(4).

The best example here is the Russia vs Ukraine War. Here Russia received help requests

from Donetsk and Luhansk, responding to which, Russia declared those parts as separate

nations and went to Ukraine with the intention to help those nations become independent and

free from abuse of the target nation that is Ukraine.

The real intentions were self-defence but in preventive nature, as Ukraine was on the

verge of being part of NATO which would have resulted in the USA setting up Military Base

close to the western borders of Russia, creating new headache for the Russia. However, this

action of preventive self-defence, was not justifiable under the law and hence Russia took the

legal way as discussed above.

Conclusion

The beauty of the Article 51 is that key terms like armed attack, state, self defence are

not exclusively defined anywhere in UN Charter. It enables the article to cover the situations

in the Future and act as the situation needs. However, this beauty becomes a curse, as these

undefined key terms are abused by some countries like USA, Russia to cover up invasion and

interference, breaching international peace under the name of self-defence or collective self-

defence.

The judicial system shall not give blanket relief of self-defence to each and every one

claiming but it should dig deep to understand the real intentions of the state. This requires the

international judicial system to carefully consider the actions of each state under consideration

and make suitable interpretations after lifting the veil of self-defence. Only after considering

this all, the benefit of self defence should be given to the states.