Table of ContentsApplication of self-defense under Article 51 of the United Nations CharterApplication of the Article 51 of the United Nations Charter to the United States and North KoreaConclusionReferences The use of invade or preemptively attack another nation has long been considered a controversial area in international law. Indeed, it has been debated whether it should be considered preemptive self-defense or preemptive self-defense, but for the purposes of this essay, preemptive self-defense will be used. That being said, Article 51 of the United Nations Charter authorizes individual and collective self-defense, which goes so far as to allow a State to act preventively. However, the use and application of Article 51 has been considered very difficult to decide, as it is difficult to determine how it fits into real-life situations, which can be very complex. This essay will expand on how the preemptive self-defense test has developed in international law since the development of the Caroline test in the 19th century and how it has been applied more recently. This will serve as 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 the president. Donald Trump, as recently seen in his State of the Union address. Accordingly, the Article 51 test will be examined to determine its application before analyzing its effect on the situation between North Korea and the United States. Say no to plagiarism. Get a tailor-made essay on “Why violent video games should not be banned”?Get the original essayApplication of self-defense under Article 51 of the United Nations CharterIn terms of customary international law, it has existed since long the right to use pre-force of coercion to ensure the defense of the nation-state. This long-standing right can be seen to emanate from the Caroline incident which focused 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 arisen, US Secretary of State Daniel Webster said: "Britain would have to demonstrate that: first, the necessity of its act of self-defense (sic) was instantaneous, overwhelming and left no choice. means and no moment of deliberation; and secondly, not all measures taken by Britain were unreasonable or excessive. Lord Ashburton responded on behalf of the government, which was then seen as creating the customary international standard meaning that for pre-emptive self-defence to be permitted it had to comply with three elements. The first is necessity, the second is proportionality and the third is when it must demonstrate that it was the very last option available. While the basis of international law being the Caroline Incident was questioned by those like Kearley, especially since necessity and proportionality had already been put forward in relation to just war theory. Indeed, it seems surprising that a rule can arise from the agreement between two States and the International Court of Justice sought to affirm that international rules would not be developed in this way in the case of Nicaragua v. UNITED STATES. Although the test resulting from the Caroline incident posed difficulties, it was always applied and the Nuremberg Trials reflected this.is served. Indeed, more recently, Gray highlighted its use when she pointed out that various governments such as the United Arab Emirates, the Netherlands and the United States had relied on the Caroline incident and the rules surrounding it. arose to demonstrate how actions were either legal or illegal when complaining about another state. This appears to undercut the argument that Article 51 of the UN Charter was intended to eradicate the preemptive right of self-defense and introduce it into a much broader general right of self-defense. To determine the scope of Article 51 and its use, it is appropriate to examine the three main characteristics of the Caroline test, which will allow it to be applied to the current situation between North Korea and the United States. The first part of the Caroline test is necessity. In terms of necessity, Fitzpatrick considered this to be instantaneous necessity, meaning that an "excellent reason" to act must be able to be given by the agency exercising force in what it says is preemptive self-defense. Indeed, when it came to the Israeli attack on the Iraqi Osirak reactor, the defense they invoked was preemptive self-defense, but this has been questioned by a number of countries at the time. 'UN. The representative of Sierra Leone correctly noted that the Israeli delegation could not demonstrate how an Iraqi attack was imminent, meaning that any preventive measures it took were not considered necessary. In fact, this view was shared by the representative. Arend stressed, however, that with the evolution of the threat facing the entire world, the criteria for preventive action have been weakened. This was seen with the weapons of mass destruction that the United States and governments said the Iraqi government was responsible for. Arend noted that because these weapons were not envisioned by the framers of the United Nations Charter, George W. Bush sought to weaken the necessity test. In fact, it has even been questioned whether necessity should be at the heart of whether an action constitutes self-defense. However, as this necessity has been reaffirmed by the International Court of Justice, as shown by the oil rigs case, we will go further to determine its applicability to the problem with the United States and North Korea. The second condition that must be met to enable preventive self-defense, in accordance with Article 51 of the United Nations Charter, is proportionality. The idea of ​​proportionality is rooted in international and European jurisprudence and is not very widespread in the common law context, particularly before the Human Rights Act 1998. In terms of proportionality in law defense in international law, it has been considered a situation which must be examined according to the scale and scope of the attack which one faces or has faced as well as according to the defensive measures which have been taken to combat such a threat or attack. In relation to situations involving preventive self-defence, proportionality must be assessed through the potential impact of the threat and the force used to repel such a threat. As a result, it was stated that proportionality is not a universal solution. Therefore, whether such a measure is proportionate will likely depend on the particular facts of the situation. One factor to consider is the motive behind resorting to what is known as self-defense. Indeed, Dinstein notes that action may be taken to obtain retaliation or on the basis of the factthat it may be politically beneficial for leaders, but that such reasons for taking action are likely to run counter to the need for proportionality, meaning that the action would not be justified. . It may be more difficult to establish a test of proportionality when there has been no attack but a pre-emptive strike. However, the UN High Level Panel said 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, as well as the motives and intentions of the party who will be subject to the preemptive attack. Therefore, the first part of proportionality is that the United States must be able to demonstrate that the North Koreans are capable of an attack as well as the fact that they would have the motive and intent to carry out an attack . The second part of proportionality is the force used in self-defense. In this regard, Gardam emphasizes that the force used must be the only possible force necessary to thwart the possibility of an attack initially feared. In this regard, it is more likely that more aggressive action will be permitted when the threat is great. Therefore, as Kretzmer stated, where the threat of attack must be one-off, then the defensive mechanism must focus on stopping that single attack, whereas if it is a massive attack, an invasion can then be considered proportionate to ensure that a massive attack is not allowed to continue. To determine whether an action taken by the United States to quell a threat from North Korea would be legitimate, the action itself must be proportionate to the threat. This will be analyzed in the next section of this essay. The third part of the test for enabling 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 specifies that such action in self-defense will be reported to the Security Council and must be demonstrated to be self-defense. Indeed, if a Security Council resolution could be obtained before taking preventive action, then that would be the position adopted. On this basis, preemptive self-defense should only be used when the threat is imminent and self-defense should be taken very quickly, without any chance 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 facing the United States if it takes action against North Korea is that it must be demonstrated that it is a necessity or, as Fitzpatrick noted above, that there is an excellent reason to take action. Regarding statements made by Kim Jong-Un about the attack on the United States, he said that the entire United States was within range of the nuclear weapons that North Korea was developing. The position of the U.S. government must also be considered in determining whether a preemptive strike against North Korea would be considered necessary. In this regard, Defense Secretary James Mattis' statement is revealing, as he says he does not believe that North Korea has developed weapons capable of striking the American continent. While this tends to demonstrate that such an attack would not be necessary, it should be noted that this is a rapidly evolving situation in which, upon receipt of intelligence that a missile may hit States -United,.