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Charter of the United Nations 1945

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The Inherent Right of Self-Defence in International Law

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 19))

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Abstract

This chapter explores the relevant articles of the Charter which relate to the threat or use of force and are interpreted and applied in accordance with the principles enunciated in earlier chapters. Emphasis is placed on an interpretation and application of Article 51, including an analysis of its travaux preparatories to conclude that it was the intention of states in 1945 to recognise and incorporate the inherent right of self-defence into the Charter, to protect this right from impairment by the operation of the treaty and to continue to exercise this right, at its earliest point, in the face of an imminent threat of armed force. It is in this chapter that the previous hypothesis concerning a definition of the legal commencement of an armed attack in international law is important. This definition is applied to Article 51 to demonstrate that its words ‘if an armed attack occurs’ referred in 1945 to the point at which the threat of force became imminent, this being the point at which the inherent right of self-defence could lawfully be exercised.

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Notes

  1. 1.

    Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 71 [1]–[2].

  2. 2.

    Brownlie (1963), 112; Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [3]; McCormack, ‘The Use of Force’ in Blay, Piotrowicz and Tsamenyi (eds) (2005), 226–228 and Cassese (2005), 354.

  3. 3.

    Article 18, 24(4), 26, 31(1), (2) and (3)(b) of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

  4. 4.

    Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 74 [6].

  5. 5.

    Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep (I) 256 [38]. See also Thomas Franck, (1988) ‘Legitimacy in the International System’ 82 American Journal of International Law 705, 711; Ruth Wedgwood, (2000) ‘Unilateral Action in the UN System 11 European Journal of International Law 349, 351; Ruth Wedgwood, (2003) ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence 97 American Journal of International Law 576, 577 and Anne-Marie Slaughter, (2005) ‘Security, Solidarity and Sovereignty: The Grand Themes of UN Reform 99 American Journal of International Law 619, 626.

  6. 6.

    Article 2(4) of the Charter of the United Nations, opened for signature 26 June 1945, 59 Stat 1031 (entered into force 24 October 1945).

  7. 7.

    For example Nicaragua (1986), [187], [190], [228]–[229], [249], [292]; Legality of Nuclear Weapons (1996), [38]–[50]; Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161 [76] and Armed activities in the Congo (Democratic Republic of Congo v Uganda) [2005] ICJ Rep 116 [148]–[149].

  8. 8.

    Corfu Channel (Albania v United Kingdom) [1949] ICJ Rep 4, 34–35. See also Brownlie (1963), 113–114.

  9. 9.

    For example Michael Akehurst, Modern Introduction to International Law (2nd ed, 1971) 57–58; Antonio Cassese, International Law in a Divided World (1986) 179; Romana Sadurka ‘The Threat of Force’ 82 American Journal of International Law (1988) 239; Moir (2010), 9 and Nikolas Sturchler, The Threat of Force in International Law (2007) 9.

  10. 10.

    Article 53 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

  11. 11.

    1987 U.N. Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, GA Res 42/22, UN GAOR, 42nd sess, 73rd plen mtg, UN Doc A/Res/42/22 supp 49 (1987). Additionally as an indication of the view taken by the international community of Article 2(4) the General Assembly adopted on first reading a controversial text of the International Law Commission relating to Draft Articles on State Responsibility, in particular Clause 9 which considered serious breaches of the rules on international peace and security (such as Article 2(4)) as giving rise to the criminal responsibility of states in international law.

  12. 12.

    Corfu Channel (1949); Nicaragua (1986); Legality of Nuclear Weapons (1996); Oil Platforms (2003); Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Palestine Territories (Advisory Opinion) [2004] ICJ Rep 136 and Armed Activities in the Congo (2005).

  13. 13.

    For discussions on a state’s use of war to defend its sovereignty see Fenwick (1934), 36; James Brierly, ‘International Law and Resort to Armed Force’ (1932) 4 Cambridge Law Journal 308; Brownlie (1963), 40, 41, 49 and 50; Francis Hinsley, Sovereignty (2nd ed, 1986) 222–225; Akehurst (1971), 17–18; Antony Allott, Euromia: New World Order for a New World (1990) 329–330; Alan James, Sovereign Statehood (2nd ed 1986) ch 1; Wildhaber, 425–452; Randelzhofer ‘Article 51’ in Simma (ed) (2004), 112–115; McCormack (2005), 225 and Malanczuk (1997), 19, 151–154.

  14. 14.

    The principle of the equality of states has endured in international law. See Chapter 1 and Charter of the Organisation of American States 1948, opened for signature 30 April 1948, 119 UNTS 49 (entered into force 13 December 1951). Article 3(e) of the Charter states: ‘Every State has the right to choose, without external interference, its political, economic, and social system and to organise itself in the best way suited to it, and has the duty of abstaining from intervening in the affairs of another state. Subject to the foregoing, the American States shall cooperate fully among themselves, independently of the nature of their political, economic and social systems.’ The equality of states is specifically recognised and is derived by a state from the ‘mere fact of its existence as a person under international law’ (Article 10) and no state may use economic or political coercive means to force the political will of another (Article 20). The Organisation of African Unity 1963 which came into existence on 25 May 1963 and ceased existing in 2002 recognised in Article III 1 of its charter the ‘sovereign equality’ of its member states. See also General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations 1970, GA Res 2625 (XXV), UN GAOR 25th sess, 1883rd plen mtg, UN Doc A/Res/2625 (1970).

  15. 15.

    For example Charter of the Organisation of American States 1948 (1951), Articles 19 and 20; The Organisation of African Unity 1963, Article II 1(c) and Article III 2 and 3; Declaration on the Admissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res 2131(XX) UN GAOR, 20th sess, 1408th plen mtg, UN Doc A/Res/2131 Supp 14, 11 (1965), Article 1.

  16. 16.

    For examinations of the principle of state sovereignty by international judicial bodies see Wimbledon (France, Italy, Japan and the United Kingdom v Germany) [1923] PCIJ (series A) no 1 25; Lotus (France v Turkey) [1927] ADPILC 98 153; Island of Palmas (Netherlands v United States) [1928] PCIJ 22 735; Clipperton Island (France v Mexico) (1931) 26 American Journal of International Law 390; Corfu Channel (1949); Reparations (Advisory Opinion) [1949] ICJ Rep 174; Minquiers and Ecrehos (France v U.K.) [1953] ICJ Rep 47; Rights of Passage (Portugal v India) [1960] ICJ Rep 6; North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) [1969] ICJ Rep 3; Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 and Nicaragua (1986), [202]. For other scholarly views on the principle of state sovereignty and the freedom of states to act without the direction of another state see Akehurst (1971), 78–79; Gerald Fitzmaurice, ‘Custom as a Source of International Law’ (1974–1975) 47 British Yearbook of International Law 53, 75; Friedmann (1964), 121–123; Hinsley (1986), 222–225; Allott (1990), 329–330; James (1932), ch 1; Wildhaber (1932), 425–452; Cassese (2005), 179; Schmitt (2003), 90 and Randelzhofer ‘Article 51’ in Simma (ed) (2004), 112–115.

  17. 17.

    Corfu Channel (1949), 33–35. This conduct was described by Britain as one of ‘self-protection or self-help’. The Court did not examine what constituted ‘a threat to use force’ in Nicaragua, however it did hold in Legality of Nuclear Weapons and Oil Platforms that a threat to use conduct which itself would, if it occurred, constitute ‘force’ within the meaning of Article 2(4) would equally be prohibited acts. See Sardurka (1988), 239 and Schmitt (2003), 91.

  18. 18.

    Corfu Channel (1949), 33–35.

  19. 19.

    Nicaragua (1986), [15] and [23]. The Court could not formally consider the legal question of whether Article 2(4) had been violated by the United States due to the multilateral treaty reservation made by the United States; [22]–[29], [185] and [228].

  20. 20.

    Ibid [188]–[192], [210]–[211], [227]–[228], [238] and [246]–[249] in respect to the international customary law rule of non-use of force and Article 2(4) of the Charter and [205], [212]–[214], [251]–[253] and [288]–[299] in respect of state sovereignty.

  21. 21.

    Ibid [181].

  22. 22.

    Ibid [195], [212]−[213], [251].

  23. 23.

    Legality of Nuclear Weapons (1996), [20].

  24. 24.

    Ibid [47].

  25. 25.

    Ibid [48]. What was required was a credible threat to use the weapon and is directed ‘against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality’; [48].

  26. 26.

    Ibid [39] and [47].

  27. 27.

    Ibid [39].

  28. 28.

    Ibid [47].

  29. 29.

    Ibid. The pre-requisite to these observations is the threat of force is against the territorial integrity or political independence of a sovereign state or against the Purposes of the United Nations; [48].

  30. 30.

    Armed Activities in the Congo (2005), [148]. See also Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165 and 73 [5]–74 [5].

  31. 31.

    Oil Platforms (2003), [43]–[45] and [125].

  32. 32.

    Ibid [125].

  33. 33.

    Armed Activities in the Congo (2005).

  34. 34.

    Ibid [148]–[154], [165] and [259].

  35. 35.

    Ibid [148].

  36. 36.

    Lauterpacht (1952), 154; Brownlie (1963), 267–268; Bowett (1958), 152 and Eduardo Arechaga, ‘General Course in Public International Law’ (1978) 159 Hague Receuil des Cours 9 who holds the view that these words were designed to be an all-encompassing phrase to prohibit the threat or use of force employed for a reason not falling strictly within the phrase ‘against the territorial integrity or political independence of any state’. For a contemporary and thorough analysis of Article 2(4) see Sturchler (2007) generally but especially 37–61 and Moir (2010), 5–9.

  37. 37.

    For example Bowett (1958), 185.

  38. 38.

    Randelzhofer ‘Article 51’ in Simma (ed) (2004), 791 [7]–[8]; Dixon (2005), 294; Myres McDougal, ‘The Initiation of Coercion: A Multi-Territorial Analysis’ (1958) 52 American Journal of International Law 241; Louis Henkin, ‘Re Reports of the Death of Article 2(4) are Greatly Exaggerated’ (1971) 65 American Journal of International Law 544; Franck (2008), 809 and Arechaga (1978).

  39. 39.

    For example Brownlie (1963), 112–113; Lauterpacht (1952), 154; Randlezhofer in Simma (ed) (2004), 789 [3]; E Roucounas, Present Problems of the Use of Force in International Law, 10th Commission, Institut De Droit International, Session De Santiago (2008) 67–165, 1 [1].

  40. 40.

    Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [3].

  41. 41.

    Ibid 792 [10]. See also Brownlie (1963), 265.

  42. 42.

    Gray (2004), 592.

  43. 43.

    United Nations Conference on International Organisation, San Francisco, 1945 iii 543, 554, 557, 560, 562; iv 717, 720.

  44. 44.

    Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 105 [66]–107 [70] and Sturchler (2007), 273–274.

  45. 45.

    Lauterpacht (1952), 153–154.

  46. 46.

    James Brierly, The Basis of Obligation in International Law (1958) 233–236, 285. See also Schmitt (2003), 91.

  47. 47.

    Jessup (1948), 157–187.

  48. 48.

    Brownlie (1963), 148.

  49. 49.

    Ibid 364.

  50. 50.

    Ibid 361–364.

  51. 51.

    Goodrich and Hambro (1949), 104.

  52. 52.

    Randelzhofer ‘Article 51’ in Simma (ed) (2004), 110 [14] and 111–112.

  53. 53.

    Ibid 112 [15]. See also Fenwick (1934), 178–179; Malanczuk (1997), 309–311 and Sturchler (2007), 273–274.

  54. 54.

    Randelzhofer ‘Article 51’ in Simma (ed) (2004), 118 [36].

  55. 55.

    Ibid . Randelzhofer acknowledges that a context of hostility is often difficult, if not impossible, to determine as weapons can equally be used offensively as defensively.

  56. 56.

    Ibid.

  57. 57.

    McCormack (2005), 264 and McCormack, ‘The Use of Force’ in Blay, Piotrowicz and Tsamenyi (eds) (2005), 224–227.

  58. 58.

    For example Corfu Channel (1949), 23–26; Nicaragua (1986), [15] and [292] in which Nicaragua alleged, inter alia, a violation of Article 2(4) of the Charter, Articles 18 and 20 of the Charter of the Organization of American States1948, Article 8 of the Convention on Rights and Duties of States 1933 and the international customary law against the threat or use of force by the United States and Oil Platforms (2003), [18]–[19] in which Iran alleged a violation of Articles I, IV(1) and X(1) of the Treaty of Amity, Economic Relations and Consular Rights 1955 (1955) UNTS 14 (entered into force 15 August 1955) and of ‘international law’ by the United States.

  59. 59.

    Brownlie (1963), 265–268, 270–275 and 435–436; Randlezhofer in Simma (ed) (2004), 789 [3] and [41]; A Panyarachun, UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN GAOR, 59th sess, 56th plen mtg, (2004) UN Doc A/59/565 [185]–[186]; E Roucounas, Present Problems of the Use of Force in International Law, 10th Commission, Institut De Droit International, Session De Santiago (2008) 67–165, 1 [1] and Moir (2010), 31–39. Article 51, which also appears in Chapter VII will be examined in Chapter 4.

  60. 60.

    Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [4], [17]–[19] and [41].

  61. 61.

    For example SC Res 19, UN SCOR, 3rd sess, 114th mtg, UN Doc S/Res/19 (1947) and SC Res 22, UN SCOR, 3rd sess, 127th mtg, UN Doc S/Res/22 (1947) in respect of Great Britain and Albania; SC Res 27, UN SCOR, 3rd sess, 173rd mtg, UN Doc S/Res/27 (1947) in respect of The Netherlands and Indonesia; SC Res 38, UN SCOR, 4th sess, 229th mtg, UN Doc S/Res/38 (1948) and SC Res 39, UN SCOR, 3rd sess, 312th mtg, UN Doc S/Res/39 (1947) in respect of Pakistan and India; SC Res 82, UN SCOR, 6th sess, 473rd mtg, UN Doc S/Res/82 (1950) and others in respect of North Korea and South Korea; SC Res 87, UN SCOR, 6th sess, 506th mtg, UN Doc S/Res/87 (1950) and others in respect of China and Taiwan; SC Res 120, UN SCOR, 3rd sess, 754th mtg, UN Doc S/Res/120 (1956) in respect of the U.S.S.R. and Hungary; SC Res 164, UN SCOR, 16th sess, 962nd mtg, UN Doc S/Res/164 (1961) in respect of Tunisia; SC Res 178, UN SCOR, 18th sess, 1033rd mtg, UN Doc S/Res/178 (1963) in respect of Portugal and Senegal; SC Res 189, UN SCOR, 19th sess, 1126th mtg, UN Doc S/Res/189 (1963) in respect of Cambodia and Vietnam; SC Res 209, UN SCOR, 21st sess, 1237th mtg, UN Doc S/Res/209 (1965) and others in respect of Pakistan and India; SC Res 233, UN SCOR, 23rd sess, 1348th mtg, UN Doc S/Res/233 (1967) and SC Res 234, UN SCOR, 23rd sess, 1352nd mtg, UN Doc S/Res/234 (1967) and others in respect of Israel, Jordan, Egypt and Syria; SC Res 275, UN SCOR, 25th sess, 1526th mtg, UN Doc S/Res/275 (1969) in respect of Portugal and Guinea; SC Res 337, UN SCOR, 28th sess, 1740th mtg, UN Doc S/Res/337 (1973) in respect of Israel and Lebanon; SC Res 514, UN SCOR, 37th sess, 2383th mtg, UN Doc S/Res/514 (1982) and others in respect of Iraq and Iran; SC Res 505, UN SCOR, 37th sess, 2368th mtg, UN Doc S/Res/505 (1982) in respect of Argentina and Great Britain; SC Res 1096, UN SCOR, 52nd sess, 3735th mtg, UN Doc S/Res/1096 (1997) in respect of the U.S.S.R and Georgia and many others that involved the use of force which will be examined in Chapter 4.

  62. 62.

    For example SC Res 118, UN SCOR, 6th sess, 743rd mtg, UN Doc S/Res/118 (1956) over the Suez Canal.

  63. 63.

    For example SC Res 138, UN SCOR, 15th sess, 868th mtg, UN Doc S/Res/138 (1960) in respect of the Israeli arrest of Adolf Eichmann in Argentina.

  64. 64.

    For example SC Res 144, UN SCOR, 15th sess, 816th mtg, UN Doc S/Res/144 (1960) in respect of the United States and Cuba.

  65. 65.

    For example SC Res 202, UN SCOR, 20th sess, 1202nd mtg, UN Doc S/Res/202 (1965) in respect of Southern Rhodesia and SC Res 203, UN SCOR, 20th sess, 1208th mtg, UN Doc S/Res/203 (1965) in respect of the Dominican Republic.

  66. 66.

    For example SC Res 143, UN SCOR, 15th sess, 873rd mtg, UN Doc S/Res/143 (1960) in respect of Belgium and the Congo and SC Res 264, UN SCOR, 24th sess, 1465th mtg, UN Doc S/Res/264 (1969) in respect of Namibia and South Africa.

  67. 67.

    For example SC Res 286, UN SCOR, 25th sess, 1552th mtg, UN Doc S/Res/286 (1970).

  68. 68.

    For example SC Res 311, UN SCOR, 27th sess, 1639th mtg, UN Doc S/Res/311 (1972) in respect of the regime of apartheid in South Africa.

  69. 69.

    For example SC Res 384, UN SCOR, 30th sess, 1869th mtg, UN Doc S/Res/1869 (1975) in respect of East Timor.

  70. 70.

    For example SC Res 457, UN SCOR, 34th sess, 2178th mtg, UN Doc S/Res/2178 (1979) in respect of Iran and the United States and SC Res 579, UN SCOR, 40th sess, 2637th mtg, UN Doc S/Res/2673 (1985).

  71. 71.

    For example SC Res 959, UN SCOR, 49th sess, 3462nd mtg, UN Doc S/Res/275 (1994) in respect of Bosnia-Herzegovina and SC Res 1203, UN SCOR, 53rd sess, 3937th mtg, UN Doc S/Res/1203 (1969) in respect of Serbia and Kosovo and others.

  72. 72.

    For example SC Res 1172, UN SCOR, 53rd sess, 3890th mtg, UN Doc S/Res/1172 (1998) and others in respect of Pakistan and India.

  73. 73.

    For example SC Res 1314, UN SCOR, 55th sess, 4185th mtg, UN Doc S/Res/1314 (2000) and SC Res 1296, UN SCOR, 55th sess, 4130th mtg, UN Doc S/Res/1296 (2000).

  74. 74.

    For example SC Res 1377, UN SCOR, 56th sess, 4413rd mtg, UN Doc S/Res/4413 (2001) and the plethora of similar resolutions dealing with this subject.

  75. 75.

    A Panyarachun, UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN GAOR, 59th sess, 56th plen mtg, UN Doc A/59/565 [193] (2004). The concept of an ‘armed attack’ is examined in Chapter 4.

  76. 76.

    Armed activities in the Congo (2005), [151]–[154].

  77. 77.

    Brownlie (1963), 247–250 and 351.

  78. 78.

    ‘Aggression’ was purposefully not defined by Committee 3 of Commission III in San Francisco in 1945. Instead the Committee preferred to leave a determination of the existence of aggression in any set of circumstances to the Security Council (as it did with the concept of a threat to the peace); United Nations Conference on International Organisation, San Francisco 1945, vi 341–505. See Osca Solera, Defining the Crime of Aggression (2007) 45–67.

  79. 79.

    Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [17]–[19].

  80. 80.

    Duties of States in the Event of the Outbreak of Hostilities, GA 5th sess, 17 November 1950, UN Doc A/Res/378B (v) (1950). See Brownlie (1963), 354–355 and Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [17]–[19].

  81. 81.

    Jean Spiropoulos, ‘Second Report of the Special Rapporteur on the Draft Code of Offices Against the Peace and Security of Mankind’ (1951) Year Book International Law Commission vol 11, 43–69 [165] and [168] where he concluded that ‘Bearing in mind the preceding remarks, our conclusion is that the notion of aggression is a notion per se, a primary notion, which, by its very essence, is not susceptible of definition… even if the definition of aggression were theoretically possible, it would not be desirable, for practical reasons, to draw up such a definition.’

  82. 82.

    Resolution on the Definition of Aggression, GA Res 3314 (XXIX), UN GAOR, 29th sess, 2319th plen mtg, UN Doc A/Res/3314 supp 31 142 (1974). See also Solera (2007), 202.

  83. 83.

    Randlezhofer in Simma (ed) (2004), 794–796 [17]–[19].

  84. 84.

    International Criminal Court, Assembly of State Parties, Special Working Group on the Crime of Aggression, 6th sess, Doc ICC-ASP/6/SWGCA/INF.1 (2007). The opinions expressed by state representatives during this meeting were not necessarily the opinions of their respective national governments [4]. The Resolution on the Definition of Aggression, GA Res 3314 (XXIX), UN GAOR, 29th sess, 2319th plen mtg, UN Doc A/Res/3314 supp 31 142 (1974) and the absolute jurisdiction of the Security Council under Article 39 of the Charter to determine ‘aggression’ for the purposes of Chapter VII were debated in Item 3 ‘The act of aggression – defining the conduct of a State’ [36]–[45] and ‘List of acts that qualify as an act of aggression’ [46]–[57].

  85. 85.

    Brownlie (1963), 355–358.

  86. 86.

    Ibid 355–356. He states at 357 that such an approach could also be utilised in respect to the definition of an ‘armed attack’ for the purposes of Article 51.

  87. 87.

    Ibid 357.

  88. 88.

    Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165 and 100 [57]–101 [57].

  89. 89.

    Article 32 Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) even though Article 4 states that the Convention applies prospectively. Article 5 however states that the Convention applies to constituent treaties of international organisations and any treaty adopted by such an organisation. See Lotus (France v Turkey) [1927] PCIJ Rep Series A 10, 16; Competence of the General Assembly regarding Admission to the United Nations [1950] ICJ Rep 4, 8 where the Court held if it can give effect to a treaty by applying the natural and ordinary meaning of its words, it may not interpret the words by giving them a different meaning; Asylum (Columbia v Peru) [1950] ICJ Rep 266, 276–279 and Malanczuk (1997), 366.

  90. 90.

    United Nations Conference on International Organisation, San Francisco 1945, xii 702–703. The United States and Mexican delegates referred simply to ‘the right of self-defence’.

  91. 91.

    United Nations Conference on International Organisation, San Francisco 1945 vi in which this position is given commonly by states. The British Government Commentary on the Charter and the inherent right of self-defence reads: ‘It was considered at the Dumbarton Oaks Conference that the right of self-defence was inherent in the proposals and did not need explicit mention in the Charter. But self-defence may be undertaken by more than one state at a time, and the existence of regional organisations made this right of special importance to some states, while special treaties of defence made its explicit recognition important to others. Accordingly the right is given to individual states or to combination of states to act until the Security Council itself has taken necessary measures’ (emphasis added by the author).

  92. 92.

    Brownlie (1963), 275.

  93. 93.

    The travaux preparatoires to Article 2(4) demonstrate that the international community in 1945 intended that the inherent right of self-defence not be impaired or diminished by Article 2(4) or the Charter generally; United Nations Conference on International Organisation, San Francisco 1945 vi 717, 720. See also Dinstein (2005), 187; Stone (1958), 3 and McCormack (2005), 261, 263–276 who reject an interpretation of these words that results in a state first suffering injury from an armed attack before exercising its inherent right of self-defence.

  94. 94.

    United Nations Conference on International Organisation, San Francisco 1945, Committee III/4 23 May mtg 4 xxii and Committee III 13 June mtg 2 xxi in which states discussed the importance of explicitly referring to regional arrangements against aggression so that the principle of collective agreement was recognised in the Charter. Individual state contributions included Argentina 681; Australia 682; Bolivia, Brazil and Chile 681; Columbia 680, 687; Costa Rica, Cuba and Ecuador 681; Egypt 682; El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela 681. See Goodrich and Hambro (1949), 300–301; Randelzhofer ‘Article 51’ in Simma (ed) (2004), 792–794 [9]-[15]; Kelsen (1951), 915–916; Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165 and 72 [2] and Nicaragua (1986), [195–199].

  95. 95.

    United Nations Conference on International Organisation, San Francisco 1945, Amendments to Dumbarton Oaks Proposals, i 661, 693 and iii 635.

  96. 96.

    Ibid xxii 781.

  97. 97.

    Ibid xxii 681.

  98. 98.

    United Nations Conference on International Organisation, San Francisco 1945, Report of Rapporteur of Committee 1 to Commission 1, vi 450.

  99. 99.

    Brownlie (1963), 275 and Alexandrov (1996), 96.

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Alder, M.C. (2013). Charter of the United Nations 1945. In: The Inherent Right of Self-Defence in International Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 19. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4851-4_4

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