Right of state to self-defense in light of international practice

Question of right of states to self-defense is one of the fundamental questions of public international law.This principle, which exists just as long as public international law does, was formulated in universal manner by the mid 20th century and there are many written works on its formulation and interpretation.Invoking self-defense during the course of history was used as a pretext for the use of force by the states outside of its territories.Right of states to self-defense originates from customary international law.During antic and medieval times, principle of self-defense was linked to the theory of just war which was differently interpreted in different times.In the period between two world wars, still there was no absolute prohibition of the use of force in international relations so the principle of self-defense was linked to the right of self-help through use of different forcible measures: retorsions, reprisals, naval blockade, intervention and demonstration of naval power.Contrary to the period of League of Nations, mechanism of implementation of international law was centralized by the foundation of the United Nations because a single body -Security Council -was entrusted with the authority to determine when the use of force is allowed in international law.Article 51 of the United Nations Charter defines that the states have a right to individual or collective self-defense in case of armed attack on the UN member state.This right is considered legitimate until the Security Council has taken measures necessary to maintain international peace and security.Since its foundation to this date, Security Council was faced many times with cases of use of force by the states invoking Article 51 of the UN Charter.Those examples that best illustrate positions of the states and the decisions or reactions of the Security Council during 60 years practice have been described.Contrary to the Security Council, participation of the International Court of Justice in the debate about right to self-defense has been rather limited.This Chapter offers the analysis of the court decisions in all cases where right to self-defense and implementation of the Article 51 of the UN Charter have been the questions in the dispute between the states.Although, Court decisions, in principle, are binding only for individual case and for the parties in the concrete dispute, their significance and influence on the practice of the states, as well as on the other court or arbitration decisions is well known, so that every Court decision can serve as a guidance in the existing debate related to the right to selfdefense.Based on the above-mentioned analysis, it is evident that right to self-defense in international relations can be exercised only with certain restrictions.These restrictions relate to the question of the gravity of the attack, necessity to act in self-defense, proportionality between the attack and the self-defense, temporal connection between the attack and the self-defense and restrictions regarding exercise of collective self-defense.Faced with the threats from non-state actors, international community did not formally amended the rules from the Charter, but it did reshape them through process of interpretation.Although Court took restrictive position with regard to elements that justify the use of force in self-defense, examples have been described where Security Council interpreted Article 51 in a more flexible manner with respect to requirement that armed attack must originate from another state.In cases where states act unilaterally and decide to use the force against terrorist organizations or other non-state actors, such actions cause condemnation by the international community and do not evolve into norms of international law.Although every state is at liberty to withhold the supply of arms to another state, there is a proposition that the mandatory arms embargo, imposed by the Security Council, jeopardizes right of state to self-defense.Through analysis of different cases, criteria are established that serve as a guidance to the Security Council when it decides to apply some of the measures foreseen in Articles 40 and 41 of the UN Charter, in order to maintain international peace and security.At the present time, use of force has become more complex and is realized in many unconventional ways which hardly fit norms of international law.Strict adherence to the system of states seems inadequate to respond to all questions that may arise while implementing this principle.Traditional doctrine does not provide adequate answers to the realities of conflicts which are, among else, today characterized by: failed states, nonstate actors, surpassing or abandoning Westphalian concept of sovereignty of states (at least according to some authors).Therefore, question of right of states to self-defense is one of the classical concepts of public international law but concept which is dynamic by its nature because it follows the fate of the development of international law in general.

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