Mary Ellen O’Connell

in International Law

ISBN: 9780199796953
Published online March 2012 | | DOI:

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Humanity has always recognized that individuals should have the right to defend themselves from violence. In international law this basic normative intuition is codified for states in the UN Charter Article 51. Article 51 is an exception to the Charter’s general prohibition on the use of force found in Article 2(4). The prohibition on the use of force is at the heart of the Charter, given that the most fundamental aim of the Charter and the UN organization created by the Charter is to “save succeeding generations from the scourge of war.” It stands to reason that any right to use force as an exception to the general prohibition on resort to force would be narrow. Article 51 permits a state to act in unilateral or collective self-defense only “if an armed attack occurs.” This article concerns the Article 51 exception for the use of force in self-defense. The writing on Article 51 is extensive and generally falls into one of two categories: first, scholarship, judicial decisions, and government policies that support Article 51’s plain terms; second, scholarship and government policies that advocate expanding the right to use force beyond Article 51’s provisions. The writers in these two categories have various labels but are most commonly referred to as the “strict” interpreters versus the “broad” interpreters. One author refers to the groups as the “restrictivists” versus the “antirestrictivists.” The divergence of views can be explained to some extent by the differing assessments writers make about the utility of resort to military force. The UN Charter was drafted at the end of World War II, when confidence in military force was certainly low and commitment to ending the use of force was high. Fifty years later, perhaps frustrated by the lack of success with other means, writers (especially in a few militarily powerful states) urged relaxing of the rules against force to respond to terrorism, weapons programs, and computer network attacks. These arguments have been met by writers newly interested in whether the use of force can be justified under the principles of necessity and proportionality, rules beyond the UN Charter but equally important in the long history of normative thinking on killing in self-defense.

Article.  7921 words. 

Subjects: International Law ; International Courts and Tribunals ; Private International Law and Conflict of Laws ; Public International Law

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