exercise of this right of self defence shall be immediately reported to the

Exercise of this right of self defence shall be

This preview shows page 7 - 9 out of 13 pages.

exercise of this right of self-defence shall be immediately reported to the Security Council .” The Court held that: Customary international law allows for exceptions to the prohibition on the use of force, which includes the right to individual or collective self-defence. The United States, at an earlier stage of the proceedings, had also agreed that the UN Charter acknowledges the existence of this customary international law right when it talks of the “inherent” right under Article 51 of the Charter (para.193). When a State claims that it used force in collective self-defence, the Court would examine the following: (1) Whether the circumstances required for the exercise of self-defence existed; and (2) Whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law. **Under international law, several requirements must be met for a State to exercise the right of
Image of page 7
individual or collective (another state comes to aid) self-defence: (1) A State must have been the victim of an armed attack ; (2) That State must DECLARE itself as a victim of an armed attack. The assessment on whether an armed attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot exercise a right of collective self-defence based that third State’s own assessment ; (3) In the case of collective self-defence, the victim State must REQUEST for assistance . The Court held that “there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”; (4) A State that is attacked, does not, under customary international law, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened – but the Court held that “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence” (see paras 200, 232 -236). “…Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected . Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self- defence (See paras 200, 232 -236)”. The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica, and Honduras to determine if (1) an armed attack
Image of page 8
Image of page 9

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture