Non-state actors and self-defence: a relook at the UN Charter Article 51

Abstract

The UN Charter Article 51 provides for the inherent right of self-defence against any use of force as an exception, which is otherwise prohibited under Article 2(4). Exercise of right of self-defence is however subject to customary law requirements of necessity and proportionality. It is considered operative only until and otherwise subject to any ‘action’ the UN Security Council is empowered to take in case of threats to peace, breach of the peace or act of aggression under Chapter VII of the Charter. The UN Charter of 1945 envisaged use of force only among States, but did not expressly limit its application only to such cases. Given this fact, considerable authority now exists to treat use of force by non-State actors as prohibited under Article 2(4) on par with the ‘armed attacks’ by regular armed forces giving rise to the right of self-defence in favor of the targeted States; provided that acts in question are not mere border incidents. This article deals with cases of the ICJ in the light of some contemporary proposals and principles identified as relevant. It also examines issues of State responsibility for wrongful acts of non-State actors operating from its territory, causing injury to third States.