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Monday, April 15, 2024

Recalibrating the notion of collective self-defence vis-á-vis use of force

The notion of the use of force began from Stone Age, from its Neolithic period when people started dividing into groups and towns, possessing territory and attacking other groups or towns for either confiscating more parts or defending themselves in face of an attack.

The notion of the use of force began from Stone Age, from its Neolithic period when people started dividing into groups and towns, possessing territory and attacking other groups or towns for either confiscating more parts or defending themselves in face of an attack. Many scholars tried to explain the phenomenon of the use of force and particularly addressed the use of force in self-defense.

Self-defense is considered to be a just cause for use of force and is part and parcel of customary international law. The notion of collective self-defence arguably developed during post-WWII state practices. Whether it is a new concept or not, the use of force in collective self-defence unknowingly used to be invoked previously but it found its legal recognition after 1945. When first mentioned in Article 51 of the United Nations charter, there came about several speculations regarding this notion of collective self-defence including restrictive and permissive approaches towards its interpretation of the use of force.

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The UN charter does not completely outlaw the use of interstate force

Although article 2(4) sets forth the fundamental restriction against the use of force, yet it allows the use of force in two situations i.e. when directly authorized by Security Council and during individual or collective self-defence. The notion of collective self-defence refers to the ‘right of states to collectively make efforts to defend other states against an aggressor’. This right is subjected to the jus ad Bellum i.e. the laws of war which are the rules governing a state’s resort to war. The permissive approach states that law is subject to various interpretations while the restrictive approach focuses on the established language of law and prohibits flexibility in the interpretation of the law.

The International Court of Justice judgment of the 1986 US versus Nicaragua case played a crucial role in the development of this concept. The ICJ ruled the case on three important principles of international law; the principle of non-use of force, the principle of non-intervention and collective self-defence. The court decided in favor of Nicaragua and set criteria for a state acting in collective self-defence in international law has the following step requirements: i) state must declare itself as a victim; ii) must request assistance from another state if engaging in collective self-defence; iii) must report to the Security Council and iv) the force used must be proportionate and necessary. We can say the main point here is that a state must stick to two legal requirements; first, the jus ad Bellum and second, how much force would be used against a specific state. Invoking collective self-defence alone is not sufficient to establish legality under international law.

During two incidents, the USA used force outside of the victim state under the ambit of collective self-defence i.e. when it used force in North Vietnam, Laos and Cambodia for the collective defence of South Vietnam and as aforementioned, against Nicaragua for the collective defence of El Salvador, Honduras and Costa Rica. The deterrent or precautionary function of collective self-defence cannot be ignored when only foreign troops are invited but the actual force is never used. Such as US military activities in the Persian Gulf provided a deterrent to Saudi Arabia against Iran. Yoram Dinstein in his book War, Aggression and Self-defense, attempts to situate the collective self-defence that where does it lie in an armed conflict because as the term conceptually denotes that it is the defence of the ‘other’ party not of ‘self’.

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Taking lessons from history

USSR had asserted that the Warsaw pact advanced towards Western Europe for collective self-defence as a justification for its use of force, while we arguably consider that it had its imperialist designs and hegemonic pursuits. But such examples from the Cold War-era overshadow the proper implementation of the UN charter due to veto powers. Therefore, the post-cold war era is a euphoric period for the definitive functioning of the collective defence system taking into account the first Gulf war and the initial phases of the Yugoslav wars and Somalia.

Contemporary use of force for collective self-defence by the US and its strategic partners provoke a novel argument in international law. For instance, US military force used against Al-Shabaab in Somalia and ISIS in Syria and Iraq under the ambit of collective self-defence. It generates the argument that whether the notion of collective self-defence can be used against non-state actors under international law since the UN charter restrictively talked about states only.

One might say that occasionally it is imperative to alter laws or interpret their language differently about the required case judgment. Both restrictive and permissive views have been considered interchangeably. But the notion of collective self-defence with the use of force has always been vaguely justified by states. However, the Nicaragua case presented definite criteria for collective self-defence and what constitutes an armed attack, yet states have interpreted international law in their subjective capacity.

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Although regional authorities play a crucial role in maintaining law and order in respective regions, an international body of legislation under the UN needs to reinforce its enforcement mechanisms for the collective defence of states and define vivid redlines for the use of force in law of armed conflict.

The writer holds a distinction in Masters of Defence and Strategic Studies from Quaid-i-Azam University, Islamabad. She holds certifications from the University of Colorado, USA, Stimson Center USA, United Nations Office of Disarmament Affairs, United Nations Institute for Training and Research and WHO. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.