Uncertainties of the law on self-defence in the United Nations Charter

Abstract

is article attempts to demonstrate that the law of self-defence in the UN-Charter is uncertain. Nobody doubts that the Charter permits self-defence, but the precise modalities of the right are unclear. This is not an expose of the whole spectrum of issues that can arise or have arisen. Rather, the article considers a few examples and analyses the structure of the arguments scholars and tribunals employ in order to find out where our limits of �legal cognition� lie. Several topics are examined, inter alia, whether an �armed attack� is a necessary condition for the exercise of self-defence under the UN-Charter; the actions qualifying as armed attack; whether an armed attack has to occur or whether the victim state merely reasonably has to expect it to occur; and whether individuals can commit an armed attack. It will become clear throughout the article that the closer one looks at the law of self-defence, the less certain the law becomes. I submit that the uncertainty of the law on self-defence is caused by a lack of legal regulation � there is only so much that Article 51 can tell us. Scholars importing their own ideas of what scope self-defence should have do not enhance our understanding of the positive law, their designs simply are not law.