'Armed Attack' and Article 51 of the UN Charter: Evolutions in Customary Law and Practice

by Tom Ruys

• ISBN13: 9780521766647
• ISBN10: 0521766648
• Format: Hardcover
• Copyright: 2011-01-17
• Publisher: Cambridge University Press

Summary

This 2010 book examines to what extent the right of self-defence, as laid down in Article 51 of the Charter of the United Nations, permits States to launch military operations against other States. In particular, it focuses on the occurrence of an 'armed attack' - the crucial trigger for the activation of this right. In light of the developments since 9/11, the author analyses relevant physical and verbal customary practice, ranging from the 1974 Definition of Aggression to recent incidents such as the 2001 US intervention in Afghanistan and the 2006 Israeli intervention in Lebanon. The notion of 'armed attack' is examined from a threefold perspective. What acts can be regarded as an 'armed attack'? When can an 'armed attack' be considered to take place? And from whom must an 'armed attack' emanate? By way of conclusion, the different findings are brought together in a draft 'Definition of Armed Attack'.

Author Biography

Dr Tom Ruys is a lawyer with Stibbe, Brussels, and a senior member of the Leuven Centre for Global Governance Studies. He also teaches Public International Law as a substitute lecturer at the Catholic University of Leuven.

Table of Contents

Acknowledgment	p. x
Table of abbreviations and abbreviated citations	p. xi
Selected case law, legislation and related documents	p. xviii
Introduction	p. 1
The methodological debate and the quest for custom	p. 6
Treaty vs. custom	p. 7
The Charter and pre-existing custom	p. 7
The role of custom in treaty interpretation and modification	p. 19
State practice vs. opinio iuris	p. 29
Introduction: the methodological debate	p. 29
The evidentiary weight of words and deeds	p. 31
Observations concerning the density of customary practice	p. 44
Conclusion	p. 51
'Armed attack' and other conditions of self-defence	p. 53
The 'armed attack' requirement as an integral part of Article 51 UN Charter	p. 53
Self-preservation and self-defence prior to 1945	p. 53
Article 51 UN Charter - primary means of interpretation	p. 55
The preparatory works of the UN Charter	p. 60
Other conditions of self-defence	p. 68
'Procedural' obligations	p. 68
Necessity and proportionality	p. 91
The 'armed attack' requirement ratione materiae	p. 126
Armed attack and aggression	p. 127
Two sides of the same coin	p. 127
The negotiations within the Fourth Special Committee on the Question of Defining Aggression (1968-74)	p. 129
Value of the Definition of Aggression	p. 136
General factors determining the existence of an 'armed attack'	p. 139
The 'most grave' forms of the use of force and the de minimis controversy	p. 139
The 'animus aggressionis' and accumulation of events	p. 158
Connecting the dots: the panoply of scenarios and the role of context	p. 175
Small-scale incursions by land, sea or air	p. 184
Attacks against external manifestations of the State	p. 199
Military units and military installations abroad	p. 199
Embassies and diplomatic envoys	p. 201
Civilian aircraft and merchant vessels	p. 204
Protection of nationals	p. 213
The 'armed attack' requirement ratione temporis	p. 250
Anticipatory self-defence: the never-ending saga (1945-2001)	p. 255
The doctrinal debate - a brief appraisal	p. 255
Customary precedents: evidence in concreto	p. 267
Customary evidence in abstracto	p. 294
The Shockwaves of 9/11	p. 305
The 2002 US National Security Strategy and the intervention in Iraq in 2003	p. 305
Shifting positions of States and scholars: a defeat of preventive self-defence at the expense of an embrace of pre-emptive self-defence?	p. 318
Exceptions and borderline cases	p. 342
The prospective dimension of the necessity standard	p. 342
Possible exceptions?	p. 343
Interceptive self-defence at the tactical level: on-the-spot reaction	p. 346
The 'armed attack' requirement ratione personae	p. 368
Indirect military aggression in the decolonization era	p. 369
Formulation of the problem	p. 369
The debate on 'indirect aggression' within the Fourth Special Committee on the Question of Defining Aggression	p. 382
State practice	p. 394
Indirect aggression in the wake of the ICJ's Nicaragua case	p. 406
Self-defence against non-State actors in the age of international terrorism and State failure	p. 419
Prelude to 9/11: shifting context, shifting practice?	p. 419
9/11: awakening to a new security environment	p. 433
Customary practice after 9/11	p. 447
The response of the International Court of Justice	p. 472
Conclusion: can non-State actors commit 'armed attacks'?	p. 485
What future for the 'armed attack' criterion?	p. 511
The customary boundaries of self-defence	p. 511
A word of caution	p. 511
The correlation between Article 51 UN Charter and other primary or secondary rules, and the 'pre-existing custom' paradigm	p. 514
Preconditions of individual self-defence other than the 'armed attack' requirement	p. 517
Ratione materiae: the basic ingredients of an 'armed attack'	p. 520
The 'armed attack' ratione temporis	p. 524
Ratione personae: attacks by non-State actors and the right of self-defence	p. 528
The slippery slope of self-defence	p. 532
Towards a UNGA 'Definition of Armed Attack'?	p. 535
Resuming an ancient project	p. 535
A blueprint	p. 539
Post-scriptum: strengthening the compliance pull of the Ius ad Bellum	p. 545
Index	p. 551
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