On the 'Inherent' Character of the Right of States to Self-Defence

Cambridge Journal of International and Comparative Law, Vol. 4, pp. 634-660, 2015

U. of Westminster School of Law Research Paper

27 Pages Posted: 15 Aug 2016 Last revised: 23 Dec 2016

See all articles by Marco Roscini

Marco Roscini

University of Westminster School of Law

Date Written: November 30, 2015

Abstract

While there is no lack of studies on the use of armed force by states in self-defence, its qualification as an ‘inherent right’ in article 51 of the Charter of the United Nations has received little scholarly attention and has been too quickly dismissed as having no significance. The present article fills this gap in the literature. Its purpose is not to discuss the limits to which article 51 or customary international law submit the exercise of the right of self-defence by states, but to examine what its ‘inherent’ character means and what legal consequences it entails. The article advances two main arguments. The first is that self-defence is a corollary of statehood as presently understood because it is essential to preserving its constitutive elements. The second argument is that the exercise of the right of self-defence must be distinguished from the right itself: it is only the former that may be delegated to other states or submitted to limitations under customary international law and treaty law. The right of self-defence, however, cannot be alienated and it takes precedence over other international obligations, although not over those specifically intended to limit the conduct of states in armed conflict or over non-derogable human rights provisions.

Keywords: Inherent Right, Fundamental Right, Self-Defence, Use of Force, UN Charter, Jus ad Bellum

JEL Classification: K33

Suggested Citation

Roscini, Marco, On the 'Inherent' Character of the Right of States to Self-Defence (November 30, 2015). Cambridge Journal of International and Comparative Law, Vol. 4, pp. 634-660, 2015; U. of Westminster School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2821781

Marco Roscini (Contact Author)

University of Westminster School of Law ( email )

4 Little Titchfield Street
London, W1W 7UW
United Kingdom

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