Index Application of self-defense under Article 51 of the United Nations Charter The application of Article 51 of the United Nations Charter to States United States and North KoreaConclusionReferences The practice of pre-emptively invading or attacking another nation has long been considered a controversial area in international law. Indeed, there has been some question as to whether it should be considered preventive self-defense or preventive self-defense, but for the purposes of this essay, preventive self-defense will be used. That said, Article 51 of the UN Charter allows for both individual and collective self-defense, which extends to allowing a state to act on a preventative basis. However, the use and application of Article 51 has been considered very difficult to judge as it is difficult to determine how it fits into real-life situations, which can be very complex. This essay will delve into how the test for preventive self-defense has developed in international law since the development of the Caroline test in the 19th century and how this has been applied in more recent times. This will form the basis for determining whether the United States would have the right to attack the Democratic People's Republic of Korea (North Korea) in light of Kim Jong-Un's missile tests and threats, which were taken seriously by President Donald Trump as seen recently in his State of the Union address. Therefore, before analyzing its effects on the situation between North Korea and the United States, the criterion of Article 51 will be examined to determine its application. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an original essay Application of self-defense under Article 51 of the United Nations Charter In terms of customary international law, the right to use pre-necessary force to ensure the defense of the nation state has long existed. This long-standing right can be seen to stem from the Caroline incident, which centered on Britain and the United States, where forces boarded the American ship Caroline, set it on fire, and pushed it over Niagara Falls. In defense of the action and where customary international law had emerged, the US Secretary of State, Daniel Webster, stated: Great Britain would have to demonstrate that: first, the necessity of her act of self-defense (sic) was immediate, overwhelming and left no choice of means and no moment of deliberation; and two that any actions taken by Britain were neither unreasonable nor excessive. Lord Ashburton answered for the Government, which then had the international customary standard created which means that for preventive self-defence to be permitted it must conform to three elements. The first is necessity, the second proportionality and the third the timing with which it must be demonstrated that it was the last available option. While the foundation of international law, formed by the Caroline Incident, was questioned by those like Kearley, especially because necessity and proportionality had already been proposed in relation to just war theory. Indeed, it seems surprising that a rule can arise from an agreement between two states, and the International Court of Justice attempted to state that international norms will not be developed in this way in the case of Nicaragua v. USA. Although there were difficulties with the test arising from the Caroline accident, it was still applied during the Nuremberg trials which were based on it. In fact, more recently its use was noted by Gray whenpointed out that various governments such as the United Arab Emirates, the Netherlands and both the United States had relied on the Caroline incident and the resulting rules to demonstrate how actions were legal or illegal when complaining about another state. This seems to support the thesis according to which Article 51 of the United Nations Charter aimed to eradicate the preventive right of self-defense and place it within a much broader scope of the general right to self-defense. To determine the scope of Article 51 and its use, it is necessary to examine the three main features of the Caroline test, which will allow its application to the ongoing situation between North Korea and the United States. The first part of the Caroline Test is necessity. In terms of necessity, Fitzpatrick saw it as an immediate necessity, meaning that the body exercising force in what it says is pre-emptive self-defense must be able to provide an "excellent reason" to act. Indeed, when it came to the Israeli attack on Iraq's Osirak reactor, the defense they invoked was preemptive self-defense, but this was questioned by a number of nations in the United Nations. Sierra Leone's representative rightly noted that the Israeli delegation could not demonstrate that an attack from Iraq was imminent, meaning that any preemptive action on their part was unnecessary. Indeed, this view was shared by the representative. Arend pointed out, however, that as the threat posed around the world has changed, the test for preemptive action has been weakened. This was seen with the weapons of mass destruction that the United States and governments claimed the Iraqi government was responsible for. Arend noted that since these weapons were not contemplated by the drafters of the UN Charter, George W. Bush sought to weaken the criterion of necessity. Indeed, it has even been questioned whether necessity should be at the heart of whether an action is self-defense. However, since this need has been reaffirmed by the International Court of Justice, as seen in The Oil Platforms case, further steps will be taken to determine its applicability to the issue with the United States and North Korea. The second requirement that must be met to allow preventive self-defense in line with Article 51 of the United Nations Charter is proportionality. The idea of ​​proportionality is rooted in international and European jurisprudence and is not seen much in the common law context, especially before the Human Rights Act 1998. In terms of proportionality in self-defence in international law, it has been seen as one that must be considered with the size and scope of the attack that is being addressed or has been addressed, as well as the defensive action that has been taken to combat such threat or attack. In terms of situations involving preemptive self-defense, proportionality should be viewed through the potential impact of the threat and the force used to repel that threat. Consequently, with proportionality it has been argued that it is not a one-size-fits-all solution. Therefore, whether such an action is proportionate or not is likely to depend on the particular facts of the situation. One of the factors to take into consideration is the reason behind the use of so-called self-defense. Indeed, Dinstein notes that action may be taken to achieve punishment or on the basis that it might be politically advantageous for leaders, but such reasons for taking action risk violating the requirement of proportionality, which means that the action would not be justified. . It can be more difficult to establish aproportionality test when no attacks have occurred but it is a preventive attack. However, the UN High Level Panel said that such attacks may be proportionate but will depend on the individual factual situation existing at the time. Therefore, what needs to be known is the capability of an attack, any motive and intention of the party that will be subjected to the pre-emptive attack. Therefore, the first part of proportionality is that the United States must be able to demonstrate the capability of an attack by the North Koreans and the fact that they would have the motive and intent to carry out an attack. The second part of proportionality is the force used for self-defense. In this regard, Gardam underlines that the force used must be all that is available and necessary to avoid the possibility of the initially feared attack. In this regard, more aggressive actions are more likely to be permitted when the threat is large. Therefore, as stated by Kretzmer, where the threatened attack is to be a one-off, the defensive mechanism should be focused on stopping that attack whilst if it is a mass attack then an invasion may be considered proportionate to ensure that an attack mass attack is not allowed to continue. To determine whether the action taken by the United States to quell any threat from North Korea is legitimate, then the action itself must be proportionate to the threat. This will be explored in the next section of this essay. The third part of the test that allows for preemptive self-defense, as seen in the Caroline incident, is that the timing of such an attack must demonstrate that it is the last available option. In this regard, Article 51 of the United Nations Charter establishes that such self-defense actions will be reported to the Security Council and it must be demonstrated that they are self-defense. Indeed, if a Security Council resolution could be obtained before preventive action was taken, then that should be the position pursued. On this basis, preemptive self-defense should only be used when the threat is imminent, and self-defense must be adopted very quickly without any possibility of obtaining a Security Council resolution. The Application of Article 51 of the United Nations Charter to the United States and North Korea The first problem the United States will face in taking action against North Korea is that it must be demonstrated to be a necessity or, as Fitzpatrick noted above, that there is a very good reason to take the action. In Kim Jong-Un's statements about the attack on the United States, he claimed that the entire United States was within range of the nuclear weapons that North Korea was developing. To evaluate whether a preventive attack on North Korea is necessary, the position of the American government must also be taken into account. In this regard, the statements of the Secretary of Defense, James Mattis, are indicative, stating that he does not believe that North Korea has developed weapons capable of hitting the continental United States. While this tends to demonstrate that such an attack would not be a necessity, it should be noted that this is a fast-moving situation where, after receiving intelligence that a missile might hit the United States, the North Korean administration intends to attack the United States. it may be necessary for the United States to preemptively attack North Korea. It should also be noted that it would be true for a preemptive strike if it was believed that North Korea would attack South Korea since Article 51 of the UN Charter allows.