SELF DEFENSE IN INTERNATIONAL LAW

INTRODUCTION
Although public international law, such as criminal law, is considered along different aspects, the
confrontation against which point the right to legitimate defense referred to in article 51 of the
United Nations human rights charter should be allowed or not, where it is possible to determine
that one is based more on defending and caring for the human rights of both victims and offenders,
while in international criminal law it is based more on the protection of states against any type of
violence in conflict in general.

Throughout the text produced by the author José Luis Vallarta Brown, of his article entitled “The
immanent right to legitimate individual or collective defense in case of armed attack. Is an extensive
interpretation justified to include preventive and punitive measures? An Israeli vision”, allows us to
develop a much deeper perspective of the considerations that must be taken against self-defense
in times of armed conflicts in the states.

Taking as a basis all the different events that gave rise to self-defense in a concrete way, the war
founded on a just cause can be analyzed since the Roman Empire - one of them being the legitimate
defense - and duly declared1, it can be determined that this begins after the formal notification of a
declaration of war. Before the hostilities began, a claim was transmitted to the opponent, urging
the satisfaction of the offense caused to the Empire and setting a deadline for an adequate
response.

As established by the Charter of the United Nations (UN) where it is allowed to mention and
establish the universal validity that periodically prohibited the use of armed force for the resolution
of disputes between States in conflict; where through the Covenant of the League of Nations
established procedures to seek a peaceful solution before the start of hostilities, but did not ban the
use of force in its entirety. Although it was presented in the same way, that several countries carried
out the so-called Bryand-Ketlow Pact, which prohibited the use of force, but it was not a universal
treaty such as the Charter of the United Nations, since only 63 States accepted it as their own.
Because, while the Bryand – Ketlow Pact contains a waiver of war, that waiver refers only to the

1
Cfr. ZOUREK, J., “La notion de légitime défense en droit international”, AIDI, Vol. 56, 1975, p. 13
officially declared war, that is, not to other types of "unofficial" armed conflicts that may cause more
wars or violence in chain in the states.

Throughout history, humanity has been generating different changes in the way it is related in its
daily behavior in relation to the individual defense or self-defense of their rights, in the face of the
different emerging conflicts in society. The issue of self-defense has been debated in different
aspects, compared to the studies of public international law, where it is possible to identify the
relationships between the rules established during the Vienna Convention.

Although public international law, such as criminal law, is considered along different aspects, the
confrontation against which point the right to legitimate defense referred to in article 51 of the
United Nations human rights charter should be allowed or not, where it is possible to determine
that one is based more on defending and caring for the human rights of both victims and offenders,
while in international criminal law it is based more on the protection of states against any type of
violence in conflict in general.

Throughout the text produced by the author José Luis Vallarta Brown, of his article entitled “The
immanent right to legitimate individual or collective defense in case of armed attack. Is an extensive
interpretation justified to include preventive and punitive measures? An Israeli vision”, allows us to
develop a much deeper perspective of the considerations that must be taken against self-defense
in times of armed conflicts in the states.

It is imperative to demonstrate that the UN Charter imposes on its members duties that common
International Law does not know. These include, above all, the duty, imposed on States by article
2, paragraph 4 of the Charter, to abstain from all recourse to force, except for the legitimate defense
against aggression (art. 51) . It is no less true that there is no contradiction in this area between
common International Law and the Charter, since the right to resort to force, which the Common
International Right recognizes, does not imply an obligation and only a faculty, to the that it is
possible to resign, as it is possible to renounce any other right2. That is, common international law
recognizes the right to self-guard not in an absolute way, but as long as the States have not assumed
different obligations. In addition to this, annexing the prohibition of the principle of the use of force
has also been recognized by States that are not members of the UN.

2
Alfred, International Public Law, (Madrid, Aguilar, 1963), IX, B, i.
The need for states to justify the use of force in peacetime. To that end, various institutions were
devised: the first one was the right to conservation (right of self-preservation), considered one of
the fundamental rights of the States and that allowed, therefore, to justify by itself practically all
the violations of the International Law3. However, "it is doubtful whether self-preservation can have
any meaning as a legal concept apart from a generic term for self-defense, self-help, and necessity"
30. For this reason, the right of defense (self-defense) was often considered synonymous with the
right of conservation, although it was distinguished from it in that it required prior criminal conduct
by the State against whom it was used.

The Caroline4 case is related to the Canadian revolution against the United Kingdom. The rebels
they found some support for their cause in the American population, in particular near the border
with Canada. A group of individuals, composed of some Canadians and a majority of Americans,
invaded Navy Island, a British possession located on the side Canadian border with the United
States. The objective of the rebels was to establish a provisional government and, from there, lead
to The revolution in Canada. The flag Caroline ship American, was used by the rebels to transport
weapons and supplies between the continent and the island. Therefore, the government British
decided to destroy it; thus, it avoided, on the one hand, the supply to the rebels and, on the other,
deprived them of their means of transport to Canada. Therefore, British soldiers boarded the ship
in Fort Schlosser, shot at the crew killing two citizens Americans and then set Caroline on fire.

In a letter sent on July 27, 1842 by Daniel Webster (United States Secretary of State) to Lord
Ashburton (Special Minister of the United Kingdom) is the first elaboration of the concept of self-
defense. So, to be justified the attack on Caroline, the United Kingdom had to demonstrate: “[a]
necessity of self-defense, instant, overwhelming, leaving no choice o means, and no moment for
deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the
necessity of the moment authorized them to enter the territories of The United States at all, did
nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must
be limited by that necessity, and kept clearly within It must be shown that admonition or
remonstrance to the persons on board the Caroline was impracticable, or would have been
unavailing; it must be shown that day-light could not be waited for; that there could be no attempt
at discrimination between the innocent and the guilty.

3
Cfr. ZOUREK, J., op. cit., pp. 19-20
4
JENNINGS, R. Y., “The Caroline and McLeod Cases”, AJIL, Vol. 32, 1938, pp. 82-92.
Taking Dinstein as a reference who, through his advisory opinion based on the International Court
of Justice on the legality of the use of nuclear weapons when the survival of a State is at risk5, his
opinion is based on the fact that it is unnecessary, to contrast it with the legitimate defense with
conventional weapons in the event of an armed attack, which, without jeopardizing the survival of
the State, constitutes, however, the aggression provided for in article 51 of the UN Charter.6

For Dinstein, he determines the analysis of the notion of self-help (self-help), and therefore explains
the extent of this institution of international law, which covers cases as dissimilar to this right, such
as the right to declare a diplomatic agent unpleasant person that abuses its privileges and
immunities. Therefore, equating the legitimate defense provided for in the UN Charter with all types
of self-help only serves to specify the gender-species relationship that exists between these two
institutions.

CONCLUSION

It can be clearly established that the right to self-defense, was mainly enshrined as an autonomous
notion of law until the twentieth century, which sought more than anything to regularize the use of
forces in international relations; Classical international law considered the individual as a simple
object, due to the prevalence of the international subjectivity of the State, because he was listed
not only as a full subject of international law but as single subject.7

Although it is contemplated in virtually all systems legal entities of the world, and therefore,
constitutes a general principle of law, the legitimate defense in the practice of the courts in charge
of judging crimes international has so far played a little prominent role, because the most of the
defense arguments, in this type of forums, traditionally have focused on trying to prove the non-
accreditation of some of the elements of the crimes charged. However, the principle of self-defense
has been recognized in a significant number of cases.

Thus, at the beginning of this corpus iuris, the Tokyo International Military Court noted: "Any law,
international or municipal that prohibits the use of force, is necessarily limited by the right to self-

5
Advisory opinion on the legality of the threat or use of nuclear weapons [1996], ICJ, Rep. 226, 263.
6
Term used by Dinstein, op. cit., note 20, p. 176.
7
Traditional international law was characterized by being founded in an international society, structured
purely with state entities, whose main function was to regulate relations between States and distribute the
powers between them, in this regard see Permanent Court of International Justice, Lotus Judgment (France
vs. Turkey), Series A, No. 10, September from 1927, p. 18.
defense ”8 For its part, the United States Military Court established in Nuremberg issued an obiter
dictum related to the subjective element of self-defense, in which he noted:

The effect of the alleged argument will be determined not by an objective standard, but by a
subjective one In the case of self-defense, the mere fact that a danger was present is not enough.
There has to be a real belief in good faith, on the part of the individual who claims the legitimate
defense, regarding the existence of that danger.

Biblioghrapy

Statutory instruments

Charter of the United Nations, of June 26, 1945.

Vienna Convention on the Law of Treaties, of May 23 from 1969.

Secondary sources
Journals:

FLACSO “The National Security Strategy of the United States of America”, Seal of the President of
the United States, September 2002, Kenneth Waltz's opinion on the magazine “Latin America
International ”(Vol. 1 nº 2).

International Military Tribunal for the Far East, Hirota et al. Case, 1948, paragraphs 356 to 364

See López – Bassols, Hermilo, Contemporary Public International Law and Basic Instruments,
Mexico, Porrúa, 2001, annexes, p. 353.

VALLARTA MARRON, José Luis. The immanent right to legitimate individual or collective defense in
case of armed attack. Is an extensive interpretation justified to include preventive and punitive
measures? An Israeli vision. Anu Mex. Right Inter [online]. 2009, vol.9, pp.69-115. ISSN 1870-
4654.

Websites and blogs:

8
International Military Tribunal for the Far East, Hirota et al. Case, 1948, paragraphs 356 to 364