-LAW 272-

The Caroline Incident, Mr. Webster to Mr. Fox ( April 24, 1841):

“.......[ Her Majesty’s] Government to show a necessity of self-defence, instant, overwhelming, leaving
no choice of means, and no moment for deliberation. It will be for it to show, also, that the local
authorities of Canada, even supposing the necessity of the moment authorised them to enter the
territories of The United States at all, did nothing unreasonable or excessive; since the act, justified by
the necessity of self-defence, must be limited by that necessity, and kept clearly within it.”

Case Concerning Military and Paramilitary Activities in and against Nicaragua ( Nicaragua vs. The
United States, Judgment of 27 June 1986, Merits, para.195.) :

“In case of individual self defence, the exercise of this right is subject to the State concerned having
been the victim of an armed attack........................In particular, it may be considered to be agreed that
an armed attack must be understood as including not merely action by regular armed forces across an
international border, but also “ the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as
to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial
involvement therein.”..............The court sees no reason to deny that, in customary law, the prohibition
of armed attacks may apply to the sending by a State of armed bands to the territory of another State,
if such an operation, because of its scale and effects, would have been classified as an armed attack
rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court
does not belive that the concept of “ armed attack” includes not only acts by armed bands where such
acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons
or logistical or other support. Such assistance may be regardad as a threat or use of force, or amount to
intervention in the internal or external affairs of other States”

United States’ National Strategy 2002:

“The gravest danger our Nation faces lies at the crossroads of radicalism and technology. Our enemies
have openly declared that they are seeking weapons of mass destruction, and evidence indicates that
they are doing so with determination. The United States will not allow these efforts to succeed. We
will build defenses against ballistic missiles and other means of delivery. We will cooperate with other
nations to deny, contain, and curtail our enemies’ efforts to acquire dangerous technologies. And, as a
matter of common sense and self-defense, America will act against such emerging threats before
they are fully formed. We cannot defend America and our friends by hoping for the best. So we must
be prepared to defeat our enemies’ plans, using the best intelligence and proceeding with deliberation.
History will judge harshly those who saw this coming danger but failed to act. In the new world we
have entered, the only path to peace and security is the path of action.

..........................For centuries, international law recognized that nations need not suffer an attack
before they can lawfully take action to defend themselves against forces that present an imminent
danger of attack......We must adopt the concept of imminent threat to the capabilities and objectives of
today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means.
They know such attack would fail. Instead, they rely on acts of terror and, potentially, the use of
weapons of mass destruction- weapons that can be easily concealed, delivered covertly and used
without warning.

..........................The United States has long maintained the option of pre-emptive actions to counter a
sufficent threat to our national security. The greater the threat, the greater is the risk of inaction-and
the more compelling the case for taking anticipatory action to defend ourselves even if uncertainty
remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our
adversaries, the United States will, if necessary, act preemptively.
..........................The United States will not use force in all cases to pre-empt merging threats, nor
should nations use pre-emption as a pretext for aggresssion. Yet, in an age where the enemies of
civilization openly and actively seek the world’s most destructive technologies, the U.S. cannot remain
idle while dangers gather”.

1. Please compare and contrast the viewpoint on self defence stated in United States’
National Security Strategy with the traditional concept of self defence stated in
Nicaragua Case and the Caroline Incident.
2. In your opinion, does Security Council Resolution 1368 (2001) below, condone such a
broad interpretation of self defence ?

Resolution 1368 (2001)

Adopted by the Security Council at its 4370th meeting, on
12 September 2001
The Security Council,
Reaffirming the principles and purposes of the Charter of the United Nations,
Determined to combat by all means threats to international peace and security
caused by terrorist acts,
Recognizing the inherent right of individual or collective self-defence in
accordance with the Charter,
1. Unequivocally condemns in the strongest terms the horrifying terrorist
attacks which took place on 11 September 2001 in New York, Washington, D.C. and
Pennsylvania and regards such acts, like any act of international terrorism, as a
threat to international peace and security;
2. Expresses its deepest sympathy and condolences to the victims and their
families and to the people and Government of the United States of America;
3. Calls on all States to work together urgently to bring to justice the
perpetrators, organizers and sponsors of these terrorist attacks and stresses that those
responsible for aiding, supporting or harbouring the perpetrators, organizers and
sponsors of these acts will be held accountable;
4. Calls also on the international community to redouble their efforts to
prevent and suppress terrorist acts including by increased cooperation and full
implementation of the relevant international anti-terrorist conventions and Security
Council resolutions, in particular resolution 1269 (1999) of 19 October 1999;
5. Expresses its readiness to take all necessary steps to respond to the
terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in
accordance with its responsibilities under the Charter of the United Nations;
6. Decides to remain seized of the matter.

3. What is the legal significance of the decision of NATO (reprinted below) to invoke art.
of the North Atlantic Treaty following the events of September 11, 2001?

Statement by the North Atlantic Council

On September 12th, the North Atlantic Council met again in response to the appalling attacks
perpetrated yesterday against the United States.
The Council agreed that if it is determined that this attack was directed from abroad against the
United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty,
which states that an armed attack against one or more of the Allies in Europe or North America
shall be considered an attack against them all.
The commitment to collective self-defence embodied in the Washington Treaty was first entered
into in circumstances very different from those that exist now, but it remains no less valid and no
less essential today, in a world subject to the scourge of international terrorism. When the Heads
of State and Government of NATO met in Washington in 1999, they paid tribute to the success of
the Alliance in ensuring the freedom of its members during the Cold War and in making possible a
Europe that was whole and free. But they also recognised the existence of a wide variety of risks
to security, some of them quite unlike those that had called NATO into existence. More
specifically, they condemned terrorism as a serious threat to peace and stability and reaffirmed
their determination to combat it in accordance with their commitments to one another, their
international commitments and national legislation.
Article 5 of the Washington Treaty stipulates that in the event of attacks falling within its purview,
each Ally will assist the Party that has been attacked by taking such action as it deems necessary.
Accordingly, the United States' NATO Allies stand ready to provide the assistance that may be
required as a consequence of these acts of barbarism.

Article 5
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 individual or collective self-defence
recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so
attacked by taking forthwith, individually and in concert with the 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.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to
the Security Council. Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security .