Re: SC resolution 1368 and self-defence

Posted by S Hossein Sadat M on October 22, 2001 at 01:13:16:

In Reply to: SC resolution 1368 and self-defence posted by Geir Ulfstein on October 21, 2001 at 14:33:10:

Dear Ulfstein

I read your comment, and it seems it is from some aspects interesting and new. I want to know How the Res. No. 1368 just recognize the right to self-defence and does not give the the right of use of force, because self-defence is inherent and the victime's will would be the criteria,isn't it?
We can raise another argument. If we see referring to the self-defence in the resolution, it is because at that time the source of attack was not obvious and SC supposed maybe the attack is state sponsor, in this manner the self-defence could be applicable.
There is another question. How this resolution could be "ultera vires"?

With the best wishes
H.Sadat
hossen_sadat@hotmail.com
: Security Council Resolution 1368 (2001) recognizes “the inherent right of individual or collective self-defence in accordance with the Charter”. This could a) be taken to authorize the use of force by the USA or b) recognize the USA’s right of self-defence as a response to the terrorist attacks.
: Ad a) Recognition of the right to self-defence is placed in the preamble of the resolution and not in the operative part. Secondly, the wording does not expressly authorize the use of force, for example by using the phrase “all necessary means”. The use of force is a very serious interference in another state’s territorial sovereignty and an authorization should require explicit wording.
: Ad b) The Security Council establishes a link between the terrorist attacks and the right of self-defence. But the Council has no formal powers to make a binding interpretation of the right to self-defence in a concrete case. Secondly, the resolution does not explicitly say that the USA has a right of self-defence against any other state in this case. Thirdly, the resolution was adopted the day after the attacks and no one could at that time know who was behind the attacks, and if they were directed from abroad. Fourthly, international law requires that a state must have been involved in one way or other in an attack. It is not easily accepted that the Security Council would do away with such a requirement (and other legal requirements). Fifthly, against whom should the USA have a right to self-defence? Would it be against Afghanistan or against about 60 states with some connection with terrorists?
: The conclusion should be that the Security Council has accepted that the attacks could give a right to self-defence but it has neither authorized the use of force nor recognized the USA’s right of self-defence against any state. The right to self-defence should be determined on the basis of an interpretation of the UN Charter article 51.

: Geir Ulfstein
: Professor of Law
: University of Oslo

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