Lawxpertsmv India
Jan 28, 20212 min
PREVIOUS YEAR UPSC LAW OPTIONAL MAINS QUESTION SOLVED SERIES | 2019 MAINS | PAPER 1 | PART B | QUESTION 5(c) – Compulsory part
QUESTION : What are the rules of International Law governing the lawful use of force by the States in the exercise of their inherent right of self-defence?
SELF- DEFENSE FROM INDIVIDUAL TO STATE | Self-Defence is commonly any act in response to an imminent threat of death or grave bodily harm to person or property. This right is however not just limited to individuals and is also available to States. The concept of Self-Defence has been an important doctrine of International Law which has again gained importance in the light of growing acts of illegal use of force threatening world peace and security.
SELF DEFENCE AS INTERNATIONAL LEGAL RIGHT | The Charter of United Nations recognizes self-defense as the inherent right of states. A state has right to take action in self-defense if it has been attacked by armed forces. In other words, attack through armed forces is pre-condition for exercising the right of self-defense. Which was even accepted in Nicaragua Case.
RELEVANT LEGAL PROVISION | Article 51 of the Charter of United Nations deals with self-defense. However, it must be immediately be reported to Security Council.
There are 4 basic principles of right to self-defense, formulated in Caroline Case and called as Caroline test:
Case facts : In 1837, settlers in Upper Canada revolted due to dissatisfaction with the British administration in North America. To be noted the United States remained officially neutral about the rebellion, but American sympathizers assisted the rebels with men and supplies, transported by a steamboat named the Caroline.
In response, a combined Anglo-Canadian force from Canada entered United States territory at night, seized the Caroline, set the ship on fire, and sent it over Niagara Falls. The British claimed that the attack was an act of self-defense
At this juncture Caroline Test was devised : The necessity for preemptive self-defense must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation."
They can be explained as follows:
1.There must be an imminent armed attack on nation’s territory, nationals, embassies, ships or air crafts—it is not necessary that the actual attack has happened. Self-defense can be exercised in anticipation of any attack on its nation. Example, Israel attack on Gaza in 2009 is categorized as self-defense.
2.There is no other alternative available, other than to exercise this right of self-defense.
3.Such self-defense must be for the immediate purpose.
4.It must be reasonable and proportional. Disproportionate use of force will not be categorized as self-defense.
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