The Applicability of Article 51 UN Charter to Asymmetric Wars

Abstract

Resolution 1368 of 12 September 2001 qualified international terrorism as a ‘threat to the peace’, and emphasized at the same time the ‘inherent right to individual and collective self-defence’ with regard to such acts. As a consequence, the question arose whether this resolution was a watershed allowing the recourse to article 51 of the UN Charter in cases of terrorism. The subsequent practice is inconclusive in this regard as the State community has been extremely reluctant to extend the purview of the right to self-defence to attacks by Non-State actors. In view of these legal uncertainties academics and members of civil society have sought to provide greater clarity on the topic. The ‘Chatham House Principles of International Law on the Use of Force by States in Self Defence’ of 2005, the ‘Leiden Policy Recommendations on Counter-Terrorism and International Law’ of 2010 and the ‘Principles on Self-Defence against an Imminent or Actual Armed Attack by Non-State Actors’ presented by Daniel Bethlehem in 2012, while not fully coincident, as a whole convincingly argue for a more extensive interpretation of article 51 of the UN Charter that would allow the countering of international terrorism more effectively.