CYIL vol. 12 (2021)
martina Šmuclerová CYIL 12 (2021) attack as a constituent of the inherent right of individual or collective self-defence under Article 51 of the United Nations Charter” as follows: “[…] it has been the consistent position of successive United Kingdom Governments over many years that the right of self-defence under international law includes the right to use force where an armed attack is imminent. It is clear that the language of Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. That can be traced back to the ‘Caroline’ incident in 1837 … It is not a new invention. The charter did not therefore affect the scope of the right of self-defence existing at that time in customary international law, which included the right to use force in anticipation of an imminent armed attack.” 45 In the same vein, the Tallinn Manual affirms: “[A] State may defend itself once an armed attack is ‘imminent’. Such action is labelled ‘anticipatory self-defence’ in international law. This position is based on the standard of imminence articulated in the nineteenth century by US Secretary of State Webster following the Caroline incident.” 46 Moreover, it is possible to dismiss the relevance of the Caroline Case for the self-defence regime in toto . As Antonio Cassese highlights that “military actions in foreign territories or in high seas aiming to prevent harmful activities produced by individuals (for example the case of Caroline , Mary Lowe , Virginius etc., cases which some consider as confirming the formulation of a norm of self-defence) don’t actually fall in this category; in fact, the illegality aimed to be prevented, did not stem from States but individuals [… and those States…] were not anyhow responsible”. 47 In addition and most importantly, since before 1919, international law did not impose any restriction on the use of force, “there was no reason for a specific norm authorizing self-defence to exist” 48 . It is with the launch of the international efforts to ban the recourse to war with the introduction of the Covenant of the League of Nations and notably the Kellogg-Briand Pact of 1928, culminating in the general prohibition to use force anchored in the UN Charter in 1945, that the preservation of the right to self-defence acquired the core meaning. “After 1928, international practice is clearly oriented to the legality of the use of force to repel an armed attack and not to prevent it.” 49 A premise of the persisting existence of the Caroline custom finally hits the adoption of the UN Charter in 1945. As the ICJ noted, the “present content [of customary right of self-defence] has been confirmed and influenced by the Charter” 50 . Any applicability of the Caroline custom to cyberattacks is disqualifies by procedural legal obstacles. The latter constitute the systemic barriers in international law with respect to the idea of preemptive self-defence in general. According to rule lex specialis derogat generali , the more specific norm prevails over the general one. Since Article 51 restricts the recourse to self-defence to the response to an armed attack, such limitation supersedes the wider historical custom. In the same vein, the principle lex priori derogat posteriori giving priority to the more recent
45 House of Lords Parliamentary Debates (Hansard) , 21 April 2004, columns 370-71. 46 Tallinn Manual , op. cit. note 18, p. 350. 47 CASSESE, A., op. cit. note 38, p. 1330 (author’s translation). See also GREENWOOD, Ch., op. cit. note 23, diminishing the impact of the right to self-defence before 1919, para 1.
48 Ibid. 49 Ibid. 50 Nicaragua Case, op. cit. note 21, § 176.
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