September 16, 2019
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Clarification of Article 51

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Special Committee on the United Nations Charter

Topic: Clarification of Article 51

The United Nations Charter Committee was established to consider proposals and questions to clarify the charter and improve the efficiency of the United Nations without an amendment. The Charter Committee debates such proposals and issues recommendations to the General Assembly by passing resolutions on the matter.

Article 51 of the United Nations Charter reads “Nothing in the Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.  This article is one of only two that are an exception to the prohibition on the use of force enshrined in Article 2 of the Charter. The United Nations Charter is defined as a treaty under the Vienna Convention on the Law of Treaties, VCLT. Under Article 31 Clause 3b of the VCLT actions taken under the name of the treaty, or in this case Article 51, actively redefine how Article 51 is interpreted. This is the primary cause for concern over the many invocations of Article 51, each one establishes a new precedent.

Article 51 has been invoked almost 80 times since 2021. These invocations have sparked concerns over the interpretation of the article. In particular, several instances of Article 51 invocation have been to conduct an attack against a suspected attacker outside of the borders of the nation invoking the article. One of the premises for these preliminary attacks is that of the “unable or unwilling test”, which argues that a state that has been or feels it may be attacked by a non-state actor may defend itself by striking at the non-state actors in a country that has been “unable or unwilling” to stop the non-state actors. This premise and others must be considered during the course of debate. Additionally, Article 51 does not specify how a report is to be made to the Security Council. Early reports were a scheduled session for an oral report, most recent reports are letters sent to the President of the Security Council. The content of these reports varies from a letter with exacting descriptions of the timing, purpose, targets, means of attack to a letter that simply includes the text of a speech from the invoking states head of state.

There is also the question of the response of the United Nations Security Council. If the Security Council does not issue a resolution or statement in response to an Article 51 report, how should that be interpreted? There are a great number of questions surrounding the interpretation and implementation of Article 51. The United Nations Charter Committee is therefore charged with the task of clarifying Article 51. The many invocations of the article provide a variety of situations and scenarios for the committee to study. The committee should consider the many situations and the potential precedents set by them as it considers this issue.

 

Focus Questions:

  • Are pre-emptive strikes to prevent an attack acceptable under Article 51?
  • What should be included in the report to the Security Council under Article 51
  • How can the United Nations better implement the text of Article 51?

 

Useful Links:

  • Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (2025) (See page 29)

https://documents.un.org/doc/undoc/gen/n25/053/37/pdf/n2505337.pdf

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