Right to

Existence
and SelfDefense
Adaza, Jason
, Jeannette
Public International Law
Judge Capadocia

Right to Existence and Self-Defense

RIGHT TO EXISTENCE AND SELF-DEFENSE

Introduction
International law recognizes the autonomy of individual states and
their right to freedom from coercion and to the integrity of their territory.
International law recognizes also that once a state comes into being, it is
invested with certain fundamental rights. These are the (a) rights of
existence and self-defense, (b) the right of sovereignty and independence,
(c) the right of equality, (d) the right of property and jurisdiction, and (e) the
right of legation or diplomatic intercourse.1
Although Grotious vigorously inveighed against mere anticipation of
aggression as a ground for self-defense, it would appear that his view has
been eroded by the more practical consideration that at times the best
defense is offense.2
In espousing opposite thesis, US secretary of war Elihu Root declared (and
thereby differed with a predecessor, U.S. Secretary Daniel Webster, who
years before had argued in favor of the traditional view:
It is well understood that the exercise of the right of self-protection
may and frequently does extend the limits of the territorial jurisdiction
of the state exercising it. The strongest example would be the
mobilization of an army by another power immediately across the
frontier. Every act done by the other power may be within its territory.
Yet the country threatened by the state of facts is justified in protecting
itself by immediate war.
The above remarks, which were made more than half a century ago,
have derived added validity from the advances of modern science and the
development of more sophisticated methods of warfare. Indeed, the
intercontinental ballistic missiles have now made it possible for at least the
so-called superpowers to inflict instant devastation without any previous
overt indication of their intentions or even a physical invasion of the territory
of the enemy. One might well argue now that the very state of armed
preparedness of a nuclear power is per se a potent, if latent, threat to the
security of any country with which it may have some differences. Such a
country would, under this view, have a right to beat the other to the draw, as
it were, and justify its act under the right of self-defense.
1 Bernas, International Law, 2009 ed.
2 Cruz, International Law, 2003 ed.
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Right to Existence and Self-Defense

History is replete with instances of the application of this more

pragmatic concept of the right of self-defense. For example, the mobilization
of Russia in 1914 brought about the immediate declaration of war against it
by Germany, which asserted that its security had been imperiled. 3
Sometimes, even innocent pawns have become the direct object of hostilities
in the interest of actual or claimed necessity for self-defense, as when Great
Britain seized the Danish fleet in 1807 to prevent it from falling into the
hands of the French with whom the British were then at war. A similar fate
befell Korea when it was invaded by Japan in 1904 on the ground that Russia,
its enemy then, also had its eye on the country and might use it as base of
operations against Japan.4 For its part, Russia in 1939 invaded the small state
of Finland and sought to justify its act as a strategic measure to defend itself
from an anticipated German invasion.5 Only recently, the United States
attacked Iraq on the ground that it was storing biological and chemical
weapons of mass destruction that it was intending to use against the
Americans.6

Scope and Limitation

Thus, this study focuses on the right of existence and self-defense of a State,
as a recognition that such right is the most comprehensive attribute of the
State. By virtue of this right, the state may take measures, including the use
of force, as may be necessary to resist any danger to its existence. Such
action being the exercise of an inherent right, it does not depend for its
validity on the previous recognition of the state asserting it or on the consent
of other states. As the declaration of the rights and duties of states, as
prepared by the International Law Commission, affirms every State has the
right of individual or collective self-defense.7

3 Ibid, page 94.

4 Ibid, page 95
5 Ibid.
6 Ibid.
7 Article 51, UN Charter
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Right to Existence and Self-Defense

Right of Existence and Self-defense

Article 51 of the Charter of United Nations, provides that-Nothing in the present Charter shall impair inherent right of the
individual or collective self-defense if any armed attack occurs against
a member of the United Nations, until the Security Council has taken
the measures necessary for the maintenance of international peace
and security.
The above quoted provision provides that in order to justify the exercise of
the right of self-defense, and for the use of force be warranted, there must
be (a) necessity and (b) proportionality. As stated in Nicaragua v. US
whether the response to an attack is lawful depends on the observance of
the criteria of the necessity and the proportionality of the measures taken in
self-defense.
Thus, mere apprehended danger or any direct or any direct threat to
the state does not, by itself alone, warrant the employment by that state of
any force against a suspected or potential enemy. The right may be resorted
to only upon a clear showing of grave and actual danger to the security of
the state. Proportionality, on the other hand, would warrant only measures
which are proportional to the armed attack and necessary to respond to it.
Self-defense can only be exercised in response to an armed attack.
This means not merely action by regular armed forces across an international
border but also the sending by a State of armed bands on to the territory of
another State, if such an operation, because of its scale and effects, would
have been classified as an armed attack had it been carried out by regular
armed forces. The concept of armed attack does not include assistance to
rebels in the form of the provision of weapons or logistical or other support.
There is also no rule permitting the exercise of collective self-defense in the
absence of a request by the State which is a victim of the alleged attack, this
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Right to Existence and Self-Defense

being additional to the requirement that the State in question should have
declared itself to have been attacked.8

Anticipatory Self-defense
Some school of thought suggests that anticipatory is allowed in the
international field on the ground that if an armed attack occurs is in view of
the vital interest of nations to protect their integrity. Viewed in such a way,
use of force in an anticipatory self-defense may then be justified.
An interesting development in the wake of the 9/11 attack on the WTC is that
Article 51 of the UN Charter which recognizes the inherent right of selfdefense has been used to justify a response against a non-state aggressor.9
In opposition to unreasonable use of force, customary laws of international
law have developed some traditional allowable coercive measures 10. Some of
which are the following:
(a) Suspension, which involves withdrawal of diplomatic representation.
(b)Retorism, this refers to any form of counter-measures in response to
an unfriendly act of other states.
(c) Reprisal, this refers to any kind of forcible measure whereby one
state seeks to exercise a deterrent effect or redress for the
consequences of the illegal act of another state.
(d)Embargo which consists of the seizure of vessels (even in high
seas).
(e) Boycott, which is the suspension of trade or business relations with
the offending state.
(f) Non-intercourse, the suspension of all commercial intercourse with
an offending state.
(g)Pacific blockade, this refers to the naval operation carried out in
time of peace thereby a state prevents access to or exit from
particular ports of the coast of another state for the purpose of
compelling the latter to yield to its demands made by blockading
state.

8 Supra. Bernas
9 Ibid.
10 Ibid.
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Right to Existence and Self-Defense

In addition to the allowable coercive measures provided above, the Security

Council provides for the conditions that may justify armed force without
authorization from the Security Council.11
(a) Gross breaches of human rights
(b)Crimes against humanity
(c) If Security Council is unable to take any action because of
disagreement
(d)Peaceful means were exhausted
(e) Group of States tried to halt the atrocities, but failed
(f) If armed force is only or the purpose of stopping the atrocities and
restoring respect for human rights

The Cuban Missile Crisis

The quarantine established by the United States in 1962, during the Cuban
missile crisis, deserves special recollection. Declaring that the peace of the
world and the security of the United States (had been) endangered by the
reason of the establishment of the Sino-Soviet powers of an offensive
military capability in Cuba, including bases for ballistic missiles with a
potential range covering most of North and South America. 12 President John
F. Kennedy interdicted the delivery of offensive weapons and associated
materials to Cuba, subject to the following instructions:
To enforce this order, the Secretary of Defense shall take appropriated
measures to prevent the delivery of prohibited material to Cuba,
employing the land, sea and air forces of the United States in
cooperation with any forces that may be made available by other
American States.
The Sec. Of Defense may take such regulations and issue such directives as
he deems necessary to ensure the effectiveness of this order, including the
11 Supra, Bernas.
12 Supra, Cruz.
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Right to Existence and Self-Defense

designation, within a reasonable distance of Cuba, of prohibited or restricted

zones of prescribed routes.
Any vessel or craft which may be proceeding toward Cuba may be
intercepted and may be directed to identify itself, its cargo, equipment and
stores and its ports of call, to stop, to lie to, submit to visit and search, or to
proceed as directed. Any vessel or craft which fails or refuses to respond to
or comply with directions shall be subject to being taken into custody. Any
vessel or craft which is believed is en route to Cuba and may be carrying
prohibited material or may itself constitute such material shall, wherever
possible, be directed to proceed to another destination of its own choice and
shall be taken into custody if it fails or refuses to obey such directions. All
vessels or craft taken into custody shall be sent into a port of the United
States for appropriate disposition.
In carrying out this order, force shall not be used except in case of
failure or refusal to comply with directions, or with regulations or directives of
the Sec. Of Defense issued hereunder, after reasonable efforts have been
made to communicate them to the vessel or craft, or in case of self-defense.
In any case, force shall be used only to the extent necessary.
Fortunately the USSR backed down and thus averted the outbreak of
what would have been World War III.

Regional Arrangements
Collective self-defense is impliedly recognized in Art VII on Regional
Arrangements which provides that --. In it is provided that Nothing in the
present Charter precludes the existence of regional arrangements or
agencies for dealing with such matters relating the maintenance of
international peace and security as are appropriate for regional action,
provided that such arrangements or agencies and their activities are
consistent with the Purposes and Principles of the United Nations.13
An example of such a regional agency is the Organization of American
States, whose Organ of Consultation authorized or ratified the action taken
by the United States in the Cuban crisis. The NATO may also be cited
although it is not strictly regional because of the participation therein of the
13 Regional Arrangements, Art. 52 Sec.1
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Right to Existence and Self-Defense

United States, which does not belong to the same geographical area as the
other members.
Under Art. 5 of the North Atlantic Treaty--The Parties agree that an armed attack against one or more of them in
Europe or North America shall be considered an attack against them all, and
consequently they agree that, if such an armed attack occurs, each of them,
in exercise of the right of the individual or collective self-defense recognized
by Art. 51 of the Charter of the UN, will assist the Party of Parties so attacked
by taking forthwith, individually and in concert with other parties, such action
as it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area.

The BALANCE OF POWER

One reason for the organization of regional arrangements is to provide
for the balance of power, which Vattel described as an arrangement of
affairs so that no state shall be in a position to have absolute master and
dominion over others.14
The Congress of Vienna of 1815, the Crimean War of 1854, the Congress of
Berlin 1878, the Triple Alliance and the Triple Entente before World War I, and
the groupings between the Allied and Axis powers during World War II were
all motivated by balance of power considerations and based on the
fundamental right of self-defense.
Until recently, most of the world was polarized between the
democracies and the communists, each camp, with the potential to destroy
the other and the rest of mankind with it. The NATO countries were eyeballto-eyeball with the Warsaw Pact countries. The maintenance of this balance
of power contributed in a very real way to international peace although,
being an armed peace. It was far from the ideal sought in the articles of
faith of the United Nations.

Aggression Defined
Following is the definition of Aggression adopted by the UN General
Assembly on Dec. 14, 1974:
Article 1
14 Supra, Cruz.
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Right to Existence and Self-Defense

Aggression is the use of armed force by a State against the sovereignty,

territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations, as set out in this
Definition.
Article 2
The first use of armed forces by a State in contravention of the Charter shall
constitute prima facie evidence of an act of aggression although the Security
Council may, in conformity with the Charter, conclude that a determination
that an act of aggression has been committed would not be justified in the
light of other relevant circumstances, including the fact that the acts
concerned or their consequences are not of sufficient gravity.
Article 3
Any of the following acts, regardless of a declaration of war shall, subject to
and in accordance with the provisions of Article 2, qualify as an act of
aggression:
(a)
The invasion or attack by the armed forces of a State of the territory of
another State, or any military occupation, however temporary, resulting from
such invasion or attack or any annexation by the use of force of the territory
of another State or part thereof;
(b)
Bombardment by the Armed Forces of a State against the territory of
another State;
(c)
The blockade of the ports or coasts of a State by the armed forces of
another State;
(d)
An attack by the armed forces of a State on the land, sea or air forces,
or marine and air fleets of another state;
(e)
The use of armed forces of one State which are within the territory of
another State with the agreement of the receiving State, in contravention of
the conditions provided for in the agreement or any extension of their
presence in such territory beyond the termination of the agreement;
(f)
The action of a State in allowing its territory, which it has placed at the
disposal of another State, to be used by that other State for perpetrating an
act of aggression against a third State;
(g)
The sending by or on behalf of a State of armed force against another
State of such gravity as to amount to the acts listed above, or its substantial
involvement therein.
Article 4
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Right to Existence and Self-Defense

The acts enumerated above are not exhaustive and the Security Council may
determine that other acts constitute aggression under the provisions of the
Charter.
Article 5
1.
No consideration of whatever nature, whether political, economic,
military or otherwise, may serve as a justification for aggression.
2.
A war of aggression is a crime against international peace. Aggression
gives rise to international responsibility.
3.
No territorial acquisition or special
aggression is or shall be recognized as lawful.

advantage

resulting

from

Article 6
Nothing in this definition shall be construed as in any way enlarging or
diminishing the scope of the Charter, including its provisions concerning
cases in which the use of force is lawful.
Article 7
Nothing in this definition and in particular Article 3 could in any way
prejudice the right of self-determination, freedom and independence, as
derived from the Charter, of peoples forcibly deprived of that right and
referred to in the Declaration on Principles of International Alw Concerning
Friendly Relations and Co-operation among Statse in accordance with the
Charter of the United Nations, particularly peoples under colonial and racist
regimes or other forms of alien domination; nor the right of these peoples to
struggle to that end and to seek and receive support, in accordance with the
principles of the Charter and in conformity with the above mentioned
Declaration.
Article 8
In their interpretation and application the abovev provisions are interrelated
and each provision should be construed in the context of the other provision.

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