International Law and the Preemptive Use of Force Against Iraq Page: 4 of 6
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CRS-4
Others contend that Article 51 should not be construed so narrowly and that "it
would be a travesty of the purposes of the Charter to compel a defending state to allow
its assailant to deliver the first, and perhaps fatal, blow ...."" To read Article 51 literally,
it is said, "is to protect the aggressor's right to the first strike."" Consequently, to avoid
this result, some assert that Article 51 recognizes the "inherent right of individual or
collective self-defence" as it developed in customary international law prior to adoption
of the Charter and preserves it intact. The reference to that right not being impaired "if
an armed attack occurs against a Member of the United Nations," it is said, merely
emphasizes one important situation where that right may be exercised but does not
exclude or exhaust other possibilities.12
In further support of this view, it is argued that the literal construction of Article 51
simply ignores the reality that the Cold War and other political considerations have often
paralyzed the Security Council and that, in practice, states have continued to use force
preemptively at times in the UN era and the international community has continued to
evaluate the legitimacy of those uses under Article 51 by the traditional constraints of
necessity and proportionality. The following examples illustrate several aspects of these
contentions:
* In 1962 President Kennedy, in response to photographic evidence that the
Soviet Union was installing medium range missiles in Cuba capable of
hitting the United State, imposed a naval "quarantine" on Cuba in order
"to interdict ... the delivery of offensive weapons and associated
material."'3 Although President Kennedy said that the purpose of the
quarantine was "to defend the security of the United States," the U.S. did
not rely on the legal concept of self-defense either as articulated in
Article 51 or otherwise as a justification for its actions. Abram Chayes,
the Legal Adviser to the State Department at that time, later explained the
decision not to rely on that justification as follows:
attack."
Id. para. 211.
10Statement by Sir Humphrey Waldock, quoted in Roberts, Guy, "The Counterproliferation Self-
Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation ofWeapons of Mass Destruction," 27 Denver Journal of International Law and Policy 483, 513
(1999).
" Id.
12 Simma, Bruno, ed., The Charter of the United Nations: A Commentary (1994), at 51. This
contention finds some support in the advisory opinion of the International Court of Justice in
Legality of the Threat or Use ofNuclear Weapons, 1996 I.C.J. Reports para. 96-97. In passing
on the question of whether it might ever be legal for a nation to use nuclear weapons, the Court
refused to construe Article 51 or customary international law to preclude "the use of nuclear
weapons by a State in an extreme circumstance of self-defence, in which its very survival would
be at stake." The Court's decision did not specifically deal with the question of preemptive
attack. But it seems to give support to an expansive understanding of what might be permissible
in instances of extreme necessity.13 Proclamation 3504, 27 Fed. Reg. 10401 (October 25, 1962).
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Ackerman, David M. International Law and the Preemptive Use of Force Against Iraq, report, April 11, 2003; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs4328/m1/4/?q=%22defense+policy%22: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.