Acta Universitatis Danubius. Juridica, Vol 7, No 1 (2011)

Abstract

While Article 2, Para. 4 of UN Charter refrain all member states from threat or use of force against the territorial integrity or political independence of any states, or in any other manner inconsistent with the purpose of the United Nation, it is forbidding the state from indulging in war. Article 51 gives the right of self-defense and collective self-defense against aggression. Both the Article seems to have a diametrical approach with regard to the use of force, however there is consensus with regard to the concept of aggression. What the Article intent to prohibit is the aggressive war. Though war is a peremptory right of the state and is closely associated with the right to existence it is not absolutely an unconditional right. It is a last resort for existence; perhaps the right to wage war has undergone a dramatic change with the development and advancement of civilization among the nations and that’s why Art 51 gives them the right of self defense as a exceptional right under exceptional circumstance and as an eternal right for existence, so it’s clear that war do existence as a legal affirmation under UN Charter but with restriction. Hence the rights to self- defense can be exercised to protect states eternal right to existence. So let me put it in this way, self-defense is a right eventually exerted by almost all living creature, perhaps it would not be wrong to admit that it is the part of those eternal source which admits the right to existence. As such, it is the fundamental law, the first law of the nature to which all other law are subordinate. A state as a subject under international law has absolute right of self-defense. The act of self-defense is justified not only under customary international law but also under UN Charter. With the change in nature of international politics and the method of waging war whether the state practice of self-defense has become a privilege or a priority? With every action of negligence in battle field the states credibility of exercising the right to self-defense has become a debatable issue. However the practical approach of the executing the right of self-defense seems to be without any limitation and thereby raises objection on this right of the state. The interpretation of the act of self defense becomes extremely challenging when this right is executed practically without delimiting its scope, which is an issue of enquiry.