Re: SC resolution 1368 and self-defence

Posted by Kenneth Manusama on October 22, 2001 at 04:04:33:

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

Dear Prof. Ulfstein,

The current military campaign against de Taliban and the Al Qaeda network is officially based by the US on its right to self-defence of Article 51. In accordance with that article, the US reported their actions to the SC. For the Americans, this is not new. The US has claimed self-defence in a number of instances in response to terrorist attacks, at least since the bombing of Tripoli, Libya in 1986. Up till now, the SC and a majority in the world community had not approved these grounds. As Prof. Cassese notes in his piece on this site, Resolution 1368 has altered the pre-September 11 framework on self-defence, albeit not as dramatic as he claims in my view. One could say that the Security Council has finally acquiesced and accepted the US view on terrorism and self-defence. Resolution 1368 did, however, recognise the right to self-defence rather early in the crisis, giving the US approval in advance, which is another alteration of the legal framework. I would disagree with the view that the SC is not the ultimate judge of the legitimacy of any exercise of self-defence. Article 51 gives the SC that power. A state exercising its inherent right must report it to the Council. And, more importantly, it must stop when the SC has taken measures. Now, that doesn't mean that the SC 'rules' in favour of the state claiming self-defence. The main point is that a state may exercise its right to self-defence despite the absence of any authorisation from the SC. It is strange, odd and dangerous, that with regard to the current crisis, the SC has given a cheque to the US to respond, although that cheque may not be a blank one. The actions must still conform to the requirements of necessity and proportionality.
The legal framework has been changed either with regard to the implicit requirement that the armed attack of which Article 51 speaks, must be committed by a State, or with regard to the attribution of certain acts to a State. This is not clear. I would say that, on the basis of the reasoning of the ICJ in the Nicaragua-case among others, it is the attribution-aspect that has been widened. Resolution 1373 also may provide a clue for the answer to this question. The Council's imposition of obligations on States points toward a far larger responsibility for States in preventing and punishing acts of international terrorism. It is a valid point, however, to question whether all these new developments in international law justify the attacks on the Taliban and, perhaps their eventual ousting from power.
By way of conclusion, I would say that while the framework regarding terrorism, self-defence and the role of the SC, has been altered or broadened. It has created, however, several other questions, to which we may not have an appropriate anwer just yet. It is, therefore, crucial that the international (legal) community keeps a critical eye on the military and diplomatic operations that are ongoing.

Kenneth Manusama
PhD-candidate
Vrije Universiteit Amsterdam

: 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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