Lesson 5.5. What is this CIL right of SD?

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

 

A State can use SD when its (1) necessary: that is to say that the threat or use of force is instant, overwhelming, leaving no choice (no alternatives) and no moment of deliberation and (2) proportionate to the threat or use of force. (This position was formulated after the Caroline Incident that took place in 1837 when the British sank a ship with insurgents in American territory and after British citizen was charged for sinking the ship.) Read the note on the Caroline incident given to you.

Under CIL a State use SD:

  1. When an armed attack occurred: see our discussion on the Israel/ Lebanon/ Hezbollah conflict in 2006.
  2. In anticipation of an armed attack or threat to State security: consider what we did on the recent US attack on Iraq based on the alleged existence of nuclear weapons (WMD). This was justified by US as “anticipatory SD” (this is also called “preemptory self defense”.) Is anticipatory SD liable to be abused? ☀ Read ASIL article on the concept of armed attack and anticipatory self defense. This is important.
  3. In response to an attack or threat of attack against State interests (nationals and property of the State). See our discussion on the Entabbe incident, where Israel justified the use of force in Ugandan territory against the PLO as SD.  US invasions in Panama and Grenada were also justified on the basis of protecting US nationals in those countries.
  4. where the “attack” doesn’t involve the use of force and involves, instead, economic aggression that is instant and overwhelming.

Which of these situations are covered by A. 51? Hint: there are two views on this.

Reference: Dixon

Additional material: note on Aggression; note on the Caroline Incident; note on non-intervention in internal affairs of a State.

Read US National Security Strategy 2002 and 2006 on anticipatory right of SD where US says that US must be able to stop rogue States and terrorists before they are able to threaten or use weapons of mass destruction. You can find these documents on the web.]

 

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

One comment

  1. Dear mam,
    it would be great if you can explain the legal implications with regard to the resolution of security council in smith goverment of Rhodasian context (Use of force under Chapter VII of UN Charter)

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