“Customary Boundaries of Self-defence”: The ‘Armed Attack’ Requirement under Article 51 of UN Charter

Abstract

This paper examines the central role of the doctrine of Ius ad Bellum and the threshold of the ‘armed attack’ requirement; in the administration of Article 51 of the UN Charter. The International Court of Justice issued its long-awaited decision in the Nicaragua case on June 27, 1986. For the first time in its history, the court issued a definitive and detailed judgement on matters relevant to the international law on the use of force (Ius ad Bellum), including the circumstances under which states may use their right to self-defence. If the Court's approach deserves praise for unequivocally affirming that disputes involving the use of force are inherently justiciable, it is somewhat puzzling what led the Hague Judges to conclude that "there appears to be general agreement on the nature of the acts which can be treated as armed attacks," thereby triggering the right to self-defence. Whether it was naiveté on their part is up to conjecture, but one need not possess the combined legal abilities of Grotius and Vattel to see that it did not accurately represent normative reality. Among the central interests of International law is the ‘Need versus Contribution’ concept, in the resolution of disputes and this paper uses knowledge developed about ‘armed attack’ doctrine to illustrate the way ‘equitable, not equal principles’ must be adopted in order to remedy the ‘use of force’ among UN Member nations.