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6 The Relationship Between Military Assistance on Request and the Right to Individual or Collective Self-Defence

From: Military Assistance on Request and the Use of Force

Erika De Wet

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 September 2020

Subject(s):
Collective rights — Military assistance — Self-defence — UN Charter

This chapter assesses the relationship between military assistance on request and the right to individual or collective self-defence. Military assistance on request and the right to individual or collective self-defence in article 51 of the Charter of the United Nations constitute two separate legal constructs under international law. Whereas the former turns on the freely-expressed consent of the de jure recognized government during the entire duration of the military intervention, the latter is triggered when a state falls victim to an armed attack. Despite the different legal criteria underpinning these two legal constructs, forcible measures in third states are sometimes justified with reference to both military assistance on request and the right to individual or collective self-defence. The chapter then shows that the evolving nature of the right to self-defence in article 51 of the UN Charter has the potential of reducing the role of consent as a mechanism for protecting state sovereignty in the jus ad bellum paradigm. This is due to the lowering of the threshold for attribution of indirect attacks, as well as the attribution of armed attacks to non-state actors. This diminished relevance of consent may under certain circumstances result in a decline in the reliance on the legal construct of military assistance on request as the legal basis for forcible measures in inter-state relations.

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