Trigger

• Author: Craig Forcese
• Pages: 211-219

211

Chapter 27

Trigger

Nothing in the present Charter shall impair the inherent right of individual

or colleive self-defence if an armed attack occurs.

— un Charter, artiCle 51

I   has become the modern world’s new obstacle

to war, how rigorous a legal rule does itprovide? Is it a meme

whose content guides conduct, or simply a mantra repeated rit-

ualistically as a slogan?

As this book has done before, it is simple to paraphrase Webster’s

formula: a necessity of self-defence, instant, overwhelming, leaving

no choice of means, and no moment for deliberation, in which the

defender does nothing unreasonable or excessive; and keeps clearly

within the necessity impelling the defence. Even in Webster’s time,

there was nothing truly novel about a formula built around immin-

ence, necessity, and proportionality — as argued earlier, these

elements can be traced to naturalist-infused writings of jurists inf‌lu-

ential during Webster’s times. But 175 years after its coining, it is

dicult to ascribe precise meaning to Webster’s pithy 1841 formula.

Certainly, the three elements of this test can be repackaged in

fuller form. A right to self-defence exists where

• “(a) an armed attack is launched, or is immediately threatened,

against a state’s territory or forces (and probably its nationals)”

(the requirements of imminence and armed attack);