Sample Masters Pass Law Essay

'Article 51 of the UN Charter contains a limited exception to the prohibition against the use of force, whereby force may be employed by a State in response to an armed attack by another State. Consider the extent to which Article 51 applies pre-emptively, drawing on recent world events including the situation between North Korea and the USA'

The use of invading or attacking another nation pre-emptively has long been regarded as a contentious area in international law. Indeed, it has been questioned whether it should be regarded as pre-emptive self-defence or preventative self-defence but for the purpose of this essay pre-emptive self-defence will be used. That being said, Article 51 of the UN Charter allows for both individual and collective self-defence which extends into allowing a state to take action on a pre-emptive basis. However, the use and application of Article 51 has been regarded as very difficult to adjudicate with it being hard to determine how it fits into real life situations, which can be very complex. This essay will expand upon how the test for pre-emptive self-defence has developed in international law since the development of the Caroline Test in the 19th Century and how this has been applied in more recent times. This will form the basis to determine whether the United States would have the right to attack the Democratic People’s Republic of Korea (North Korea) in light of missile tests and threats of Kim Jong-Un, which have been taken seriously by President Donald Trump as recently seen in his State of the Union Address. Accordingly, the test under Article 51 will be examined to determine its application before analysing its effect on the situation between North Korea and the USA.

Application of Self-Defence under Article 51 of the UN Charter

In terms of customary international law there has been a long-standing right to use pre-emptive force to ensure that the nation state is defended. This long-standing right can be seen to emanate from the Caroline Incident which centred upon Great Britain and the United States where the British forces boarded the US Caroline ship, set fire to it and pushed it over Niagara Falls. In defence of the British action and where the customary international law had arisen, the US Secretary of State, Daniel Webster, stated:

Britain should demonstrate that: one, the necessity of its self-defense (sic) act was instant, overwhelming and left no choice of means and no moment of deliberation; and two that all actions taken by Britain were neither unreasonable nor excessive.

Lord Ashburton responded for the British Government, which was then seen to create the customary international norm meaning that for pre-emptive self-defence to be allowed it must conform with three elements. The first is necessity, the second is proportionality and the third is timing whereby it must demonstrate that it was the very last option available. Whilst the foundation of the international law being the Caroline Incident has been questioned by those such as Kearley, especially as necessity and proportionality had already been propounded in relation to just war theory. Indeed, it seems surprising that a rule could arise from the agreement between two states and the International Court of Justice has sought to state that international rules will not be developed this way in Nicaragua v USA. Whilst there have been difficulties with the test arising from the Caroline Incident, it has still been applied with the Nuremberg Trials relying upon it. Indeed, more recently its use was noted by Gray when she outlined that various Governments such as the United Arab Emirates, the Netherlands and both the UK and USA had relied upon the Caroline Incident and the rules emanating therefrom to demonstrate how actions were either legal or unlawful when complaining about another State. This seems to put pay to the argument that Article 51 of the UN Charter was intended to eradicate the pre-emptive right of self-defence and bring it into a much broader general right to self-defence.

To determine the extent of Article 51 and its use, the three main features of the Caroline Test must be examined, which will allow for an application to the ongoing situation between North Korea and the USA. The first part of the Caroline Test is necessity. In terms of necessity, this was regarded by Fitzpatrick as being instant necessity meaning that an ‘excellent reason’ to act must be able to be given by the body that is exercising the force in what they say in pre-emptive self-defence. Indeed, when it came to the Israeli attack on the Iraqi Osirak Reactor, the defence they pleaded was one of pre-emptive self-defence yet this was questioned by a number of nations in the UN. The representative from Sierra Leone aptly noted that the Israeli delegation could not demonstrate how an attack from Iraq was imminent, meaning that any pre-emptive action that they took was not under the heading of being necessary. Indeed, this view was shared by the UK representative. Arend has outlined, however, that with a change of the threat that is posed throughout the world, that the test for pre-emptive action has been weakened. This was seen with the weapons of mass destruction that the US and UK Governments said the Iraqi Government were in charge of. Arend noted that as these weapons were not contemplated by the drafters of the UN Charter, George W Bush sought to weaken the test for necessity. Indeed, it has even been questioned whether necessity should be at the heart of whether an action is in self-defence. However, as this necessity has been reaffirmed by the International Court of Justice as seen in The Oil Platforms Case it will be taken further to determine its applicability to the issue with the USA and North Korea.

The second requirement that must be satisfied to allow for pre-emptive self-defence in line with Article 51 of the UN Charter is proportionality. The idea of proportionality is one that is grounded in international and European jurisprudence with it not being greatly seen in the common law context, especially the UK prior to the Human Rights Act 1998. In terms of proportionality in self-defence in International Law, it has been seen as one which must be looked at with the size and scope of the attack that is faced or has been faced as well as the defensive action that has been taken to combat such a threat or attack. In terms of situations involving pre-emptive self-defence, the proportionality should be viewed through the potential impact of the threat and the force used to repulse such a threat. Accordingly, with proportionality it has been stated that it is not a ‘one size fits all’. Therefore, whether such an action is proportionate is likely to be dependent upon the particular facts of the situation. One of the factors that should be taken into account is the motive behind the use of so-called self-defence. Indeed, Dinstein notes that action may be taken to obtain retribution or on the basis that it may be politically beneficial for the leaders but such reasons for taking an action is likely to fall foul of the need for proportionality meaning that the action would not be justified. It can be more difficult to establish a test for proportionality when there have not been any attacks but it is a pre-emptive strike. However, the High Level Panel of the UN has stated that such attacks can be proportionate but it will depend on the individual factual situation existing at the time. Therefore, what must be known is the capability of an attack, any motive and intention for the party that will be subject to the pre-emptive attack. Therefore, the first part of proportionality is that the USA must be able to demonstrate that an attack is capable from the North Koreans as well as the fact that they would have the motive and intention to carry out an attack.

The second part of proportionality is the force that is used in self-defence. In this regard, Gardam outlines that the force used will have to be all that is necessary to thwart the possibility of the attack that was originally feared. In this regard, it is more likely that more aggressive action will be allowed when the threat is great. Therefore, as stated by Kretzmer where the threatened attack is to be a one-off, then the defensive mechanism should be focused on stopping that one attack whereas if it is a mass attack then an invasion may be regarded as proportionate to ensure that a mass attack is not allowed to continue. To determine whether action taken by the USA to quell any threat by North Korea would be legitimate then the action itself must be proportionate to the threat. This will be analysed in the next section of this essay.

The third part of the test allowing pre-emptive self-defence as seen in the Caroline Incident is that the timing of such attack must demonstrate that it is the last available option. In this regard, Article 51 of the UN Charter outlines that such action vis-à-vis self-defence will be reported to the Security Council and must be demonstrated to be in self-defence. Indeed, if a Security Council Resolution could be obtained prior to taking the pre-emptive action then that should be the position pursued. On this basis, the pre-emptive self-defence should only be used when the threat is imminent and the self-defence has to be taken very quickly with no chance to obtain a Security Council Resolution.

The Application of Article 51 of the UN Charter to the USA and North Korea

The first issue that will face the USA in taking action against North Korea is that it must be shown that it is a necessity or as Fitzpatrick noted above that there is an excellent reason in taking the action. In terms of the statements that have been made by Kim Jong-Un on attacking the USA, he has stated that the whole of the USA was in range of the nuclear weapons that North Korea were developing. The position of the US Government must also be taken into account in determining whether a pre-emptive attack on North Korea would be regarded as necessary. In this regard, the statement of the Secretary of Defence, James Mattis are indicative as he states he does not believe that North Korea have developed weapons that would be capable of hitting mainland USA. Whilst this tends to demonstrate that such an attack would not be a necessity, it must be noted that this is a quick moving situation where upon receiving intelligence that a missile could hit the US and the North Korean administration has the intention of attacking the US then it may be necessary for the US to pre-emptively attack North Korea. It must also be noted that it would be true for a pre-emptive strike if it was deemed that North Korea would attack South Korea as Article 51 of the UN Charter allows for collective self-defence and as an ally the USA could protect South Korea.

The second element of determining whether an attack by the US on North Korea would be legal in line with Article 51 is that it must be proportionate. In this regard, there are two critical factors that must be taken into account. The first is the threat posed by North Korea and the second is the potential action that would be taken by the US. In terms of the threat posed by North Korea, this ties in with what was seen with necessity and whether a North Korean missile would be able to hit the USA, especially the mainland. The test for proportionality requires that the extent of the threat is examined but also whether there is capability and the intention for it to be carried out. Whilst Kim Jong-Un has repeatedly stated he could fire a missile to the US he has not said that he will definitely do it. On this basis, it is unlikely that the current situation would give rise to the US being able to take pre-emptive action. The second issue is the action that the US would be allowed to take in attempting to nullify the threat. In terms of the statements that have been made by Donald Trump they have been bellicose and he has stated that with the US weapons he would be able to destroy the North Korean administration by unleashing ‘fire and fury’. This clearly demonstrates that it would go beyond merely nullifying the threat meaning that such action would be contrary to Article 51 of the UN Charter.

Conclusion

This essay has examined Article 51 of the UN Charter in light of heightened tensions between the US and North Korea. For the USA to take any action it would have to be shown that it would be necessary as well as proportionate. In this regard, there are questions about the capability as well as whether Kim Jong-Un would actually fire a missile at the US. In this regard, it is likely that it would not be considered necessary. In terms of proportionality, the threats made by Donald Trump to unleash fire and fury and to destroy North Korea would go beyond the action that is necessary meaning that it would not be compliant with Article 51. Therefore, such pre-emptive action would not be regarded as legal in international law.

Bibliography

Legislation

• Human Rights Act 1998
• UN Charter

Cases

• Nicaragua v United States of America (1986) ICJ 14
• The Oil Platforms Case (1996) ICJ Rep 226

Books

• Arend AC & Beck RJ, International Law and the Use of Force: Beyond the UN Charter Paradigm – Self-Defence (Routledge, 1993)
• Dinstein Y, War, Aggression and Self-Defence (3rd edn, OUP 2001)
• Gardam J, Necessity, Proportionality and the Use of Force by States (CUP, 2004)
• Gray C, International Law and the Use of Force (4th edn, OUP 2018)
• Hulsroj P, The Principle of Proportionality (Springer, 2013)
• Noyes JE, Dickinson LA & Janis MW, International Law Stories (Foundation Press, 2007)
• Schmitt MN & Pejic J (eds), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Martinus Nijhoff, 2007)
• Weller M & Solomou A, The Oxford Handbook on the Use of Force in International Law (OUP 2015)

Articles

• Arend AC, ‘International Law and the Preemptive Use of Military Force’ (2003) 26(2) Wash Quart 89
• Christodoulidou T & Chainoglou K, ‘The Principle of Proportionality in Self-Defence and Humanitarian Intervention’ (2007) 20 HV 79
• Delibasis D, ‘The Right of States to Use Force in Cyberspace: Defining the Rules of Engagement’ (2002) 11 Info & Comm Tech L 255
• Fitzpatrick MA, ‘Seizing Weapons of Mass Destruction from Foreign-Flagged Ships on the High Seas under Article 51 of the UN Charter’ (2009) 49 Va J Int’l L 473
• Gazzini T, The Use of Force in International Law (2nd edn, Routledge 2016)
• Glennon MJ, ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter’ (2001) 25 Harv JL & Pub Pol 539
• Kearley B, ‘Raising the Caroline’ (1999) 17 Wisconsin Int’l LJ 325
• Kretzmer D, ‘The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum’ (2013) 24(1) European J Int’l L 235
• Kunz E, ‘Individual and Collective Self-Defence in Article 51 of the UN Charter’ (1947) 41(4) Am J Int’l L 872
• Occelli MB, ‘Sinking the Caroline: Why the Caroline Doctrine’s Restrictions on Self-Defence Should Not Be Regarded as Customary International Law’ (2003) 4 San Diego Int’l LJ 467
• Pierson C, ‘Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom’ (2004) 33(1) Denver J of Int’l L & Pol 88

Miscellaneous

• BBC News, ‘North Korea’s Kim Jong-Un Issues Threats and Olive Branch’ (BBC News, 1 January 2018) < http://www.bbc.co.uk/news/world-asia-42531574> accessed 5th February 2018
• Blake A, ‘Why Trump’s Threat to ‘Totally Destroy’ North Korea is Extraordinary – Even for Him’ (Washington Post, Washington, 19th September 2017) < https://www.washingtonpost.com/news/the-fix/wp/2017/09/19/why-trumps-threat-to-totally-destroy-north-korea-is-extraordinary-even-for-him/?utm_term=.c86fe0208e37> accessed 5th February 2018
• Browne R & Gaouette N, ‘Mattis Says North Korea Isn’t Capable of Striking the US’ (CNN News, Washington, 17th December 2017) < https://edition.cnn.com/2017/12/15/politics/mattis-north-korea-icbm/index.html> accessed 5th February 2018
• Cohen Z, Browne R, Gaouette N & Lee T, ‘New Missile Test Shows North Korea Capable of Hitting All of US Mainland’ (CNN News, Washington, 30th November 2017) < https://edition.cnn.com/2017/11/28/politics/north-korea-missile-launch/index.html> accessed 5th February 2018
• European Centre for Security Studies, The Marshall Centre Papers (Paper No 5, 2002)
• Mr Koroma, UN Doc No: S/PV.2283:56 (1981)
• Spetalnick M & Brunnstrom D, ‘State of the Union: Trump Claims North Korea Nuclear Missiles could ‘Very Soon’ Threaten US’ (The Independent, Washington DC, 1st February 2018) < http://www.independent.co.uk/news/world/americas/us-politics/state-of-the-union-2018-latest-nrth-korea-im-jong-un-donald-trump-otto-warmbier-a8186476.html> accessed 5th February 2018
• Tisdall S, ‘Donald Trump’s Menacing Talk on North Korea is Leaving the US Isolated’ (The Guardian, London, 30th November 2017) < https://www.theguardian.com/us-news/2017/nov/30/donald-trump-menacing-talk-north-korea-us-isolated> accessed 5th February 2018
• United Nations, In Larger Freedom: Towards Development, Security and Human Rights for All (Report of the Secretary General, 2005, UN Doc A/59/2005) last accessed 5th February 2018

Footnotes

1. AC Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 26(2) Wash Quart 89.
2. TD Gill, ‘The Temporal Dimension of Self-Defense: Anticipation, Pre-Emption, Prevention and Immediacy’ in MN Schmitt & J Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Martinus Nijhoff, 2007) p. 115.
3. MJ Glennon, ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter’ (2001) 25 Harv JL & Pub Pol 539.
4. C Pierson, ‘Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom’ (2004) 33(1) Denver J of Int’l L & Pol 88.
5. Z Cohen, R Browne, N Gaouette & T Lee, ‘New Missile Test Shows North Korea Capable of Hitting All of US Mainland’ (CNN News, Washington, 30th November 2017) < https://edition.cnn.com/2017/11/28/politics/north-korea-missile-launch/index.html> accessed 5th February 2018.
6. M Spetalnick & D Brunnstrom, ‘State of the Union: Trump Claims North Korea Nuclear Missiles could ‘Very Soon’ Threaten US’ (The Independent, Washington DC, 1st February 2018) < http://www.independent.co.uk/news/world/americas/us-politics/state-of-the-union-2018-latest-nrth-korea-im-jong-un-donald-trump-otto-warmbier-a8186476.html> accessed 5th February 2018.
7. D Delibasis, ‘The Right of States to Use Force in Cyberspace: Defining the Rules of Engagement’ (2002) 11 Info & Comm Tech L 255, 260.
8. JE Noyes, LA Dickinson & MW Janis, International Law Stories (Foundation Press, 2007) p. 263.
9. AC Arend & RJ Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm – Self-Defence (Routledge, 1993) p. 18.
10. MB Occelli, ‘Sinking the Caroline: Why the Caroline Doctrine’s Restrictions on Self-Defence Should Not Be Regarded as Customary International Law’ (2003) 4 San Diego Int’l LJ 467, 475.
11. Delibasis (n 7) p. 261.
12. B Kearley, ‘Raising the Caroline’ (1999) 17 Wisconsin Int’l LJ 325.
13. J Gardam, Necessity, Proportionality and the Use of Force by States (CUP, 2004) p. 28.
14. (1986) ICJ 14, para. 184.
15. T Gazzini, The Use of Force in International Law (2nd edn, Routledge 2016) p. 315.
16. C Gray, International Law and the Use of Force (4th edn, OUP 2018) p. 158.
17. T Ruys, Armed Attack and Article 51 of the UN Charter: Evolutions in Customary Law (CUP 2010) p. 9.
18. MA Fitzpatrick, ‘Seizing Weapons of Mass Destruction from Foreign-Flagged Ships on the High Seas under Article 51 of the UN Charter’ (2009) 49 Va J Int’l L 473, 481.
19. Mr Koroma, UN Doc No: S/PV.2283:56 (1981).
20. Arend (n 1) p. 95.
21. Ibid p. 96-99.
22. E Kunz, ‘Individual and Collective Self-Defence in Article 51 of the UN Charter’ (1947) 41(4) Am J Int’l L 872, 877.
23. (1996) ICJ Rep 226.
24. P Hulsroj, The Principle of Proportionality (Springer, 2013) p. 22.
25. T Christodoulidou & K Chainoglou, ‘The Principle of Proportionality in Self-Defence and Humanitarian Intervention’ (2007) 20 HV 79, 80.
26. M Weller & A Solomou, The Oxford Handbook on the Use of Force in International Law (OUP 2015) p. 1196.
27. D Kretzmer, ‘The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum’ (2013) 24(1) European J Int’l L 235, 257.
28. Y Dinstein, War, Aggression and Self-Defence (3rd edn, OUP 2001) p. 199.
29. Kretzmer (n 27).
30. United Nations, In Larger Freedom: Towards Development, Security and Human Rights for All (Report of the Secretary General, 2005, UN Doc A/59/2005) last accessed 5th February 2018.
31. D Schmitt, ‘Counter Terrorism and The Use of Force in International Law’ in European Centre for Security Studies, The Marshall Centre Papers (Paper No 5, 2002) p. 19.
32. Gardam (n 13) p. 179.
33. Kretzmer (n 27).
34. BBC News, ‘North Korea’s Kim Jong-Un Issues Threats and Olive Branch’ (BBC News, London, 1 January 2018) < http://www.bbc.co.uk/news/world-asia-42531574> accessed 5th February 2018.
35. R Browne & N Gaouette, ‘Mattis Says North Korea Isn’t Capable of Striking the US’ (CNN News, Washington, 17th December 2017) < https://edition.cnn.com/2017/12/15/politics/mattis-north-korea-icbm/index.html> accessed 5th February 2018.
36. S Tisdall, ‘Donald Trump’s Menacing Talk on North Korea is Leaving the US Isolated’ (The Guardian, London, 30th November 2017) < https://www.theguardian.com/us-news/2017/nov/30/donald-trump-menacing-talk-north-korea-us-isolated> accessed 5th February 2018.
37. A Blake, ‘Why Trump’s Threat to ‘Totally Destroy’ North Korea is Extraordinary – Even for Him’ (Washington Post, Washington, 19th September 2017) < https://www.washingtonpost.com/news/the-fix/wp/2017/09/19/why-trumps-threat-to-totally-destroy-north-korea-is-extraordinary-even-for-him/?utm_term=.c86fe0208e37> accessed 5th February 2018.