Friday, September 01, 2006

UN: No Right To Self-Defense In International Law

The blog of the Claremont Institute, The Remedy, notes that there is a:
U.N. Report which denies that there is such a thing as a right to self-defense in international law.
No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles.
The Remedy counters that the modern ideas of the law of nations runs counter to the UN's formulation, quoting Emmerich de Vattel:
IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible — what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, — that is, to preserve herself from all injuries (§ 18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security. [emphasis added]
This goes against the UN report, which sees self-defense by the State more as a concession--reluctantly granted and strongly limite--than as a right:
Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another. [emphasis added]
This seems to be the direction that Human Rights Watch follows, as enunciated by Kenneth Roth, the Executive Head of HRW in New York. In his article in the Jerusalem Post entitled Indiscriminate bombardment, Roth makes reference to international law three times--but each time refers to it as "international humanitarian law," circumscribing the rule of law in the conduct of war and putting the lives of others before the lives of the country being attacked [see: Human Rights Watch: Human Rights Vs. Human Life].

This may not be the first attempt to put legal limits on a country's right to self-defense.

Leanne Piggott, a lecturer in Middle East Politics at the University of Sydney and a director of Academic Programs of the Centre for International Security Studies wrote in July 2004 about the Hague's decision on Israel's Security Fence--Judges' ruling rewrites UN Charter on self-defence:
THE advisory opinion brought down by the International Court of Justice last Friday in relation to Israel's separation barrier has implications far beyond the Israeli-Palestinian conflict. Buried deep in the text of its opinion is a bombshell that purports to radically rewrite the rules of international law governing the inherent right of states to defend themselves and their citizens.

The ICJ recognises that this right is enshrined in Article 51 of the UN Charter. But the ICJ then says that this right is limited to self-defence in the case of armed attack "by one state against another state". That limitation does not appear anywhere in the text of Article 51 itself. Article 51 recognises that states have an inherent right of self-defence "if an armed attack occurs". It does not say that the armed attack must have been carried out by, or be attributable to, another state.

The distinction is critical in the on-going struggle against international terrorism. Although every act of terrorism necessarily originates in territory (or aboard a ship or aircraft) that is owned or occupied by a sovereign state, it does not follow that every such act of terrorism is supported by that state, and attributable to it in a legal sense.

The ICJ is now saying that if terrorists based in the territory of state A attack state B without the passive or active support of state A, state B may not have the right to defend itself from future attack by striking back at the terrorist base – despite Article 51. [emphasis added]
The logic of that last paragraph seems to be pretty much in sync with the assumptions expressed by many critics of Israel's bombing of Hezbollah terrorist bases in Lebanon.

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