4 elements ii level 514/2/2023 ![]() 51, the customary law right of self-defence is preserved. 51 make clear that it does not create the right of self-defence but confirms that, within the limits set forth in Art. Both the language and the drafting history of Art. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. A similar approach had been adopted when the Kellogg-Briand Pact was drawn up in 1928 and the international military tribunals at Nuremberg and Tokyo proceeded, in hearing charges of crimes against the peace, on the basis that a resort to force which fell within the customary law right of self-defence did not violate the provisions of the Pact. That the right of self-defence was not impaired was taken for granted in the early drafts of the UN Charter prepared at the Dumbarton Oaks Conference (1944), which made no express mention of self-defence. These provisions were not, however, intended to remove the right of States to use force in self-defence, at least until the UN Security Council had employed its collective security powers. Chapter VII UN Charter then goes on to authorize the UN Security Council to take enforcement action, including military measures, should it determine that there is a threat to the peace ( Peace, Threat to), breach of the peace ( Peace, Breach of), or act of aggression. That provision requires all Members of the United Nations to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’. Today, as Sir Humphrey Waldock explained, ‘there are few more important questions in international law than the proper limits of the right of self-defence’ (at 461).Ģ The importance of self-defence in contemporary international law derives from its position as the principal exception to the general prohibition of the use of force enshrined in Art. It was not until there evolved in international law a general prohibition on recourse to force through the Covenant of the League of Nations (1919), the General Treaty for Renunciation of War as an Instrument of National Policy ( Kellogg-Briand Pact ), and the United Nations Charter (1945), that self-defence assumed its modern significance in international law ( Use of Force, Prohibition of). Nevertheless, while it can be traced back at least as far as the correspondence between the United Kingdom and United States governments regarding the Caroline incident in 1837 ( Caroline, The), its importance in the 19th century was limited by the fact that international law then recognized a general right of resort to war, so that self-defence was significant (at least in legal, as opposed to political, terms) only with regard to lesser instances of the use of force.
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