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Custom Use of Force and the Right to Self Defense essay paper sample

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This is an essay on the use of force and the right to self-defense in international relations. Self-defense is the counter measure involved in defending one self, one's property or well-being of another against an exerted force. According to the United Nations Charter Article 2(4), "use of force" in international relations is prohibited. However, Article 51 of the UN Charter permits the "use of force" as an act of self defense. This essay will argue for both Article 51 and Article 2(4) of the United Nations Charter. This essay will also draw the relationship between the two articles in the maintenance of international peace and security.

United Nations Charter Article 2 (4)

The Charter was signed on June 26, 1945 in San Francisco, United States by 50 of the 51 original member countries. It became effective on 24th of October 1945 and currently enjoys a membership of 192 countries. It is the foundational treaty of the United Nations and therefore binds all its members.

Article 2(4) of the Charter states that "all members shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations"(1). However, notable in the preamble of the Charter is, its absence to set out any of the rights or obligations of member states which subjects it to misinterpretation in its application. On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights which highlighted the essence to promote the development of friendly relations between nations.(2) In its 1970 Declaration on the Strengthening of International Security, the General Assembly solemnly reaffirmed that "States must fully respect the sovereignty of other States and the right of peoples to determine their own desires, free of external intervention, coercion or constraint, especially involving the threat or use of force." (3) In the 1965 Declaration of the Inadmissibility of Intervention, the General Assembly condemned "armed intervention and all other forms of interference or attempted threats against the personality of the State."(4) All these were consistent with Article 2(4) of the United Nations Charter.

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According to Davis (2007), there have been constant debates on the way the U.S has been carrying itself in reference to some international laws articles 2(4) being one of those articles which have been said to be constantly ignored by the U.S. With US being one of the signatories of the UN charter, it is bound to follow all the international rules in the Charter. The general overview of Article 2(4) of the United Nations Charter is an assumption that only under explicit circumstances should a member state use force against another. It therefore protects countries against foreign interferences and hence safeguarding the sovereignty of a member state which encourages diplomacy. However, there have been many violations to this law: The US supported the enactment of the UN Charter unconditionally but it has since 1945 involved itself incases of use of force in international relations. Notable in this case is the US forceful invasion of Afghanistan in 2001 after the September 11, 2001 attack on US by al Qaeda. The US with the help of Britain launched a massive air and ground operation against Afghanistan; Operation Enduring Freedom. They considerably notified the UN Security Council that, Operation Enduring Freedom was an exercise of individual and collective self-defense in compliance with the terms of United Nations Charter Article 51, which permits the use of force in self-defense against an armed attack. But this was a strategy to invade Afghanistan via preemptive self-defense conception which is unlawful under international law. Thus, the reality was that the United States had no right to use force to prevent possible, armed attacks by invading Afghanistan. Hence it breached the Charter. Similar invasions on Cuba in 1961and Iraq in 2003 were also unlawful and inconsistent with Article 2(4) of the Charter.(5) Earlier, after the 2nd World War, US occupied Japan forcefully an act which evolved the start of the Cold war. During the Cold war (1947-1991), the Soviet Union invaded Afghanistan in 1980.(6) All these and other scenarios have demonstrated failure by some member states to abide by the principles and purposes of the UN Charter though the violators have always argued their inconsistency.

 

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In addition, although the ban on the use of military force is established by Article 2(4) of the United Nations Charter, with only certain explicit exceptions, many scholars have argued that Article 2(4) is not a general prohibition on force, but rather only a prohibition on force aimed at the territorial integrity and political independence of states or inconsistent with the purposes of the UN.(7)

Professor Anthony D'Amato used such an interpretation to justify Israel's 1981 strike against the Iraqi nuclear reactor at Osirik. Israel wished to prevent Iraq from developing nuclear weapons. The strike aimed at long-term Israeli security. In D'Amato's view, the Israeli attack did not compromise the territorial integrity or political independence of Iraq, nor was it inconsistent with the purposes of the UN. By this narrow view of sovereignty, D'Amato concluded that the strike did not violate the prohibition in Article 2(4). International reaction to the Israeli strike, however, was uniformly negative. The Security Council passed a unanimous resolution condemning it as a violation of the Charter. That resolution solidified the general understanding of Article 2 (4) that it is a general prohibition on force. By interpretation, Article 51 exposes Article 2(4) but does not give a right for its violation. This leads to a conclusion that serious commitment to a law may not yield compliance. I hence propose for the amendment of this article to fit purpose and compliance.

United Nations Charter Article 51

It states that there should be no reason why a sovereign nation should not defend itself in case.(8) This Article legalizes force to be used for a self- defense incase of an armed attack and others may join to use force in a collective self-defense of the victim pending the intervention of the Security Council. However there has been an argument as to whether an armed attack is to occur first or whether a pre-emptive strike is necessary for an eminent attack and urgency of a self-defense. After the September11 attack, the Security Council clarified that an attack must be underway or must have already occurred in order to trigger the right of unilateral self-defense. Any earlier response required the approval of the Security Council. The term, 'if an armed attack occurs" has been legally interpreted by the International Court of Justice. It concluded that an armed attack triggering unilateral self-defense may include "the sending by or on behalf of a State of armed bands, groups, which carry out acts of armed force against another State of such gravity as to amount to an actual armed attack conducted by regular force".(9)

It also clarified that force can be used in self-defense only against a state legally responsible for the armed attack and that force in self-defense must respect the principles of necessity and proportionality. Proportionality meaning that the number of possible civilian casualties must be considered hence if the number will be out-of- proportion, the attack must be abandoned. In concern of the US attack on Afghanistan in 2001 and the invasion of Iraq in 2003, the principle of proportionality should have been considered to abandon the attacks.

 Article 51 advocates for a state not to take military action against another state when an attack is only a hypothetical possibility, and not yet in progress-even in the case of weapons of mass destruction. Mere possession of such weapons and nothing more does not amount to an armed attack and hence no use of force as self-defense against such states. This was in response to Israel's attack on Iraq in 1981citing weapons of mass destruction an attack which the Security Council condemned. Israel had argued this to be a preemptive self-defense act. Israel maintained that they planned the attack on learning of the near completion of Osiraq reactor and that all the workers were absent at the time of the attack.(10) But by the earlier direction of when a country should attack on self -defense, it was agreed that Israel clearly violated the Charter.

It is also dictated that a victim of an attack may use force based on clear and convincing evidence that the enemy is preparing to attack again. The Security Council action after September 11:it did not condemn US invasion in Afghanistan ,can be cited to support anticipatory Self-defense in cases where an armed attack has occurred and convincing evidence exists that more attacks are planned, though not yet underway. These legal explanations have greatly helped in interpretation of Article 2(4) and Article 51 which has influenced the compliance to the Charter in general.(11)

In the context of the use of force for self-defense, Article 2(4) forbids the use of any force even for purposes of self -defense. This law clearly safe guards all member states against foreign interference and acknowledges sovereignty of states. This ensures that all international disputes are solved diplomatically and peacefully according to the purposes and principles of the UN Charter hence the maintenance of international peace and security.

Article 51 on allows for the use of force for self-defense explicitly. The International Court of Justice and the Security Council has considerably explained the exemptions in this Article as well as the interpretation of the same in accordance with international law. Through this, the significance of this Article has greatly improved. However, violators to this article have always argued their inconsistency to the Charter through different interpretations: Professor D'Amato's argument on Israel attack on Iraq, Uganda and Tanzania made consistent attacks against each other in 1978 along their common boarder justifying the inherent right of self-defense under Article 51.(12) Thereby, it falls short of its intended purpose of maintaining international peace and security.

I recommend for its amendment to fit the principles and purposes of the Charter and to ensure its compliance. I also recommend the two Articles to be read together during application as this will promote better understanding of the Charter.

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