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LAWS 30742 / Law and Ethics in War and Warfare

Assessed Coursework
Essay Title 1

Referring to the domestic analogy, which is seen by some authors as the key element to analyse the theory of aggresion: the states, as individuals, have rights that they can enforce within the international society. These rights consist of a political sovereignty giving the state a independent authority over a territory which first, is transferred by the individuals through a social contract, and second, can be opposed to another state’s ingerence or aggression by the use of force. However, in case of aggression, the right of self-defense is far from being as framed for a state as it is for an individual. Indeed, Jean-Jacques Rousseau underlined “the discrepancy between the orderly reign we enjoy in civil society and the anarchical character of international relations”.
The right of self-defense is the exception to the prohibition of the use of force in international law. Before the Unites-nations Charter, several treaties had already banned the recourse to force, one of them giving the legal basis for the notion of crime agains peace used by in Nuremberg. However, the use of force was still left to the discretion of states and therefore, the right of self-defense did not have a normative frame until the signing of The United Nation Charter.
The Article 2(4), recognized as part of the customary law in 1986, prohibites the use of force against “the territorial integrity or political independence” of another state, but moderates this interdiction with the Article 51, which provides states with an exceptionnal right of self-defense: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. What is the scope of