Hugo Grotius, the 17th century jurist and father of public

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

, stated in his 1625 magnum opus ''The Law of War and Peace'' that "Most Men assign three Just Causes of War, Defence, the Recovery of what's our own, and Punishment."

Overview

Chapter VII of the United Nations Charter

Article 51 of the

UN Charter The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: th ...

states the following: ''Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.''

International law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

recognizes a right of self-defence, as the

International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...

(ICJ) affirmed in the '' Nicaragua Case'' on the use of force. Some commentators believe that the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures for the specific situation when an armed attack does occur. Under the latter interpretation, the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. Not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.

Customary international law and Caroline test

The traditional customary rules on self-defense derive from an early diplomatic incident between the United States and the United Kingdom over the killing of one US citizen engaged in an attack on Canada, then a British colony. The so-called ''Caroline'' case established that there had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,' and furthermore that any action taken must be proportional, "since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it." These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence.
Dan Webster, Yale Law School

Imminent threat

The imminent threat is a standard criterion in

, developed by

Daniel Webster Daniel Webster (January 18, 1782 – October 24, 1852) was an American lawyer and statesman who represented New Hampshire and Massachusetts in the U.S. Congress and served as the U.S. Secretary of State under Presidents William Henry Harrison ...

as he litigated the

Caroline affair The ''Caroline'' affair (also known as the ''Caroline'' case) was a diplomatic crisis beginning in 1837 involving the United States, the UK, and the Canadian independence movement. The modest military incident has taken grand international l ...

, described as being "''instant, overwhelming, and leaving no choice of means, and no moment for deliberation.''" The criteria are used in the

justification of '' preemptive self-defense'': self-defense without being physically attacked first (see ''Caroline'' test). This concept has been used to mitigate the lack of definition provided by Article 51 of the

Charter of the United Nations The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the ...

, which states that

sovereign nation A nation state is a political unit where the state and nation are congruent. It is a more precise concept than "country", since a country does not need to have a predominant ethnic group. A nation, in the sense of a common ethnicity, may inc ...

s may fend off an ''armed attack'' until the

Security Council The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations (UN) and is charged with ensuring international peace and security, recommending the admission of new UN members to the General Assembly, an ...

has adopted measures under Chapter VII of the United Nations Charter. The

has been used to establish the principle of "

anticipatory self-defense A preemptive war is a war that is commenced in an attempt to repel or defeat a perceived imminent offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war ''shortly before'' that attack materializes. It ...

" and is also now invoked frequently in the course of the dispute around

preemptive strike A preemptive war is a war that is commenced in an attempt to repel or defeat a perceived imminent offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war ''shortly before'' that attack materializes. It ...

(or preemption doctrine).

References

;Sources * Ben Fritz
"Sorting out the "imminent threat" debate,"
spinsanity.org, November 3, 2003 * Dan Darling

windsofchange.net, September 4, 2003 * Wolf Schäfer
"Learning From Recent History,"
''Provost’s Lecture Series on Global Issues - The People Speak: America Debates its Role in the World'', Stony Brook University, October 15, 2003 * Michael Byers
"Jumping the Gun"
''London Review of Books, Vol. 24 No. 14'', 25 July 2002, pp 3–5 * Matthew Omolesky
"Special Report: Israel and International Law,"
''

The American Spectator ''The American Spectator'' is a conservative American magazine covering news and politics, edited by R. Emmett Tyrrell Jr. and published by the non-profit American Spectator Foundation. It was founded in 1967 by Tyrrell, who remains its editor- ...

'', 7.18.06
The Caroline Case : Anticipatory Self-Defence in Contemporary International Law

Obituary of Neil MacGregor, one of the Upper Canada militiamen on the raid

* ttp://freepages.genealogy.rootsweb.ancestry.com/~twigs2000/chapvii.html Chapter 7, "British Steamer is Burned by Patriots" in ''Northern New York In The Patriot War'', 1923, By L. N. Fuller
The Caroline (Christopher Greenwood) in the context of international law - Max Planck Encyclopedia of Public International Law
;Notes {{DEFAULTSORT:Self-Defence In International Law International criminal law

Overview

Chapter VII of the United Nations Charter

Customary international law and Caroline test

Imminent threat

See also

References