’Armed Attack’ and Article 51 of the UN Charter: Evolutions by Tom Ruys

By Tom Ruys

This booklet examines to what volume the ideal of self-defence, as laid down in Article fifty one of the constitution of the United countries, allows States to release army operations opposed to different States. specifically, it makes a speciality of the prevalence of an 'armed assault' - the the most important set off for the activation of this correct. In mild of the advancements seeing that Sept. 11, the writer analyses correct actual and verbal widespread perform, starting from the 1974 Definition of Aggression to contemporary incidents resembling the 2001 US intervention in Afghanistan and the 2006 Israeli intervention in Lebanon. The concept of 'armed assault' is tested from a threefold viewpoint. What acts might be considered as an 'armed attack'? whilst can an 'armed assault' be thought of to happen? And from whom needs to an 'armed assault' emanate? in terms of end, different findings are introduced jointly in a draft 'Definition of Armed Attack'.

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See in particular White House, National Security Strategy of the United States of America, Washington DC, 17 September 2002, available at http://georgewbush-whitehouse. html (accessed 6 May 2009). introduction 3 naïve to take for granted the status quo. Against this background, the key research question the present study intends to tackle is whether and to what extent recent evolutions have altered the customary boundaries of the right of self-defence, both de lege lata and de lege ferenda. Has the storm radically changed the landscape of the Ius ad Bellum; has it dwindled without doing any damage; or has it merely torn out a few sloping trees?

First, in accordance with the equal normative power of treaty and customary law and the lex posterior principle, incompatible rules of pre-existing custom have been abrogated after 1945 as for the Members of the United Nations. 59 Insofar as pre-existing custom was substantially different from the content of Article 2(4), it was modified subsequent to the adoption of the Charter. Third, Article 51 UN Charter has likewise acquired customary status,60 and excludes the preservation of a customary right of self-defence incompatible with the Charter framework.

A/60/10, § 471. D. French, ‘Treaty interpretation and the incorporation of extraneous legal rules’, (2006) 55 ICLQ 281–314, at 303–4; C. McLachlan, ‘The principle of systematic integration and Article 31(3)(c) of the Vienna Convention’, (2005) 54 ICLQ 279–320, at 312. I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester University Press, 1984), p. 258. H. Waldock, ‘Third Report on the Law of Treaties’, (1964-II) YBILC 5–65, at 52 (emphasis added). PCA, The Island of Palmas Case (or Miangas) (United States of America v.

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