Imminent threat
Encyclopedia
Hugo Grotius
, the 17th century jurist and father of public international law
, stated in his 1625 magnum opus The Law of War and Peace
that "Most Men assign three Just Causes of War
, Defense, the Recovery of what's our own, and Punishment."
Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in 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.
International law
recognizes a right of self-defence, as the International Court of Justice
(ICJ) affirmed in the Nicaragua Case on the use of force
. Some commentators believe that the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures for the specific situation when an armed attack does occur. Under the latter interpretation, the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. It is also to be noted that not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.
, developed by Daniel Webster
as he litigated the Caroline affair
, described as being "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The criteria are used in the international law
justification of preemptive self-defense
: self-defense without being physically attacked first (see Caroline test
). This concept was introduced to compensate the strict, classical and inefficient definition of self-defense used by Article 51 of the Charter of the United Nations, which states that sovereign nations may fend of an armed attack until the Security Council has adopted measures under Chapter VII of the United Nations Charter
.
The Caroline affair
has been used to establish the principle of "anticipatory self-defense" and is also now invoked frequently in the course of the dispute around preemptive strike
(or preemption
doctrine).
Domestic Law Issues related to Self-Defense
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
, the 17th century jurist and father of public international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, stated in his 1625 magnum opus The Law of War and Peace
De jure belli ac pacis
De jure belli ac pacis is a 1625 book in Latin, written by Hugo Grotius and published in Paris, on the legal status of war. It is now regarded as a foundational work in international law....
that "Most Men assign three Just Causes of War
Jus ad bellum
Jus ad bellum is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war....
, Defense, the Recovery of what's our own, and Punishment."
Chapter VII of the United Nations Charter
Article 51 of the UN Charter states the following:Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in 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.
International law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
recognizes a right of self-defence, as the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
(ICJ) affirmed in the Nicaragua Case on the use of force
Use of force by states
The use of force by states is controlled by both customary international law and by treaty law. The UN Charter reads in article 2:All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or...
. Some commentators believe that the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures for the specific situation when an armed attack does occur. Under the latter interpretation, the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. It is also to be noted that not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.
Customary international law
The traditional customary rules on self-defence derive from an early diplomatic incident between the United States and the United Kingdom over the killing on some US citizens engaged in an attack on Canada, then a British colony. The so-called Caroline case established that there had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,' and furthermore that any action taken must be proportional, "since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it." These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence.Imminent threat
The imminent threat is a standard criterion in international lawInternational law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, developed by Daniel Webster
Daniel Webster
Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...
as he litigated the Caroline affair
Caroline affair
The Caroline affair was a series of events beginning in 1837 that strained relations between the United States and Britain....
, described as being "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The criteria are used in the international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
justification of preemptive self-defense
Preemptive war
A preemptive war is a war that is commenced in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending war before that threat materializes. It is a war which preemptively 'breaks the peace'. The term: 'preemptive war' is...
: self-defense without being physically attacked first (see Caroline test
Caroline test
The Caroline test is a 19th century formulation of customary international law, reaffirmed by the Nuremberg Tribunal after World War II, which said that the necessity for preemptive self–defense must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation."...
). This concept was introduced to compensate the strict, classical and inefficient definition of self-defense used by Article 51 of the Charter of the United Nations, which states that sovereign nations may fend of an armed attack until the Security Council has adopted measures under Chapter VII of the United Nations Charter
Chapter VII of the United Nations Charter
Chapter VII of the United Nations Charter sets out the UN Security Council's powers to maintain peace. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace...
.
The Caroline affair
Caroline affair
The Caroline affair was a series of events beginning in 1837 that strained relations between the United States and Britain....
has been used to establish the principle of "anticipatory self-defense" and is also now invoked frequently in the course of the dispute around preemptive strike
Preemptive strike
A preemptive strike refers to a surprise attack launched with the stated intention of countering an anticipated enemy offensive. Preemptive strike may also refer to:...
(or preemption
Preemption
-Legal:*Federal preemption, displacement of U.S. state law by U.S. Federal law*"Preemption" is also sometimes used in the United States to refer to the displacing effect state laws might have on ordinances enacted by municipalities, especially in the context of alcoholic beverage laws, gun laws,...
doctrine).
See also
- Threat of force (public international law)
- Laws of warLaws of warThe law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
- Use of force by statesUse of force by statesThe use of force by states is controlled by both customary international law and by treaty law. The UN Charter reads in article 2:All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or...
- Collective securityCollective securityCollective security can be understood as a security arrangement, regional or global, in which each state in the system accepts that the security of one is the concern of all, and agrees to join in a collective response to threats to, and breaches of, the peace...
- Chapter VII of the United Nations CharterChapter VII of the United Nations CharterChapter VII of the United Nations Charter sets out the UN Security Council's powers to maintain peace. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace...
- Just WarJust WarJust war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...
Theory - Jus ad bellumJus ad bellumJus ad bellum is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war....
- Casus belliCasus belliis a Latin expression meaning the justification for acts of war. means "incident", "rupture" or indeed "case", while means bellic...
- Religious warReligious warA religious war; Latin: bellum sacrum; is a war caused by, or justified by, religious differences. It can involve one state with an established religion against another state with a different religion or a different sect within the same religion, or a religiously motivated group attempting to...
- Targeted killingTargeted killingTargeted killing is the deliberate, specific targeting and killing, by a government or its agents, of a supposed terrorist or of a supposed "unlawful combatant" who is not in that government's custody...
Domestic Law Issues related to Self-Defense
- Castle Doctrine in the United States
- Duty to retreatDuty to retreatIn the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the...
- Bodily harmBodily harmBodily harm is a legal term of art used in the definition of both statutory and common law offences in Australia, Canada, England and Wales and other common law jurisdictions. It is a synonym for injury or bodily injury and similar expressions, though it may be used with a precise and limited...
and Grievous bodily harmGrievous bodily harmGrievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861.... - Clear and present dangerClear and present dangerClear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
- Imminent lawless actionImminent lawless action"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....