First, what does “reasonable and objective” mean? One way to determine what this might mean is to compare it to more well-known standards, often found in international and national jurisdictions. For example, it is clear that it does not meet the highest standard of “beyond reasonable doubt,” according to which there can be no reasonable doubt as to the validity of the claimed argument. Nor does “reasonable and objective” mean that the evidence must meet the “clear and convincing” standard, which requires that the alleged statement be much more likely to be true than not. Nor does it meet the lower standard of “predominant evidence” (or probability weighting), which states that the alleged statement need only be true with a greater probability than otherwise. In fact, the term “reasonable” does not even mean that the evidence presented must be particularly “good.” “Adequate” could mean a lower standard. Applying this framework to U.S. claims of collective self-defense In addition to considering the strategic issues that would go into the decision, how would the U.S. justify a prior attack on North Korea under international law? And how would the rest of the world react? How a state is legally responsible for its actions, both publicly and in the context of international organizations such as the United Nations, influences the legitimacy that other nations give to the state in general and its actions in particular. A state that systematically acts in a manner considered illegitimate may suffer damage to its global relations or censorship under international law.
Traditional customary rules of self-defence stem from a diplomatic incident between the United States and the United Kingdom over the murder of an American citizen involved in an attack on Canada, then a British colony. The so-called Caroline case stated that there must be “an immediate, overwhelming need, without choice of means and without a moment of reflection” and, moreover, that each action must be proportionate, “since the action justified by the need for self-defence must be limited and clearly retained by that necessity”. These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the usual right of self-defence. [ref. (Dan Webster, Yale Law School) Bowett opposes the need for actual armed conflict, pointing out that the “inherent” right of self-defense refers to customary international law, as affirmed in the 1841 correspondence on the sinking of the Carolina. Bowett insists that in the absence of “any centralized mechanism for enforcing the law,” the need for greater self-help is “obvious” (p. 3). The Security Council, including the United States, unanimously condemned the attack, calling it a violation of the UN Charter and international norms. Article 2, paragraph 4, prohibits States from threatening or using force against each other. However, Article 51 states that the Charter does not prohibit “the inherent right of individual or collective self-defence when an armed attack takes place against a Member of the United Nations until the Security Council has taken the necessary measures for the maintenance of international peace and security”. In that case, the U.S.
would likely claim that North Korea poses an imminent threat according to its understanding of Article 51 of the UN Charter and launch a preemptive strike. The above examples and other cases not covered here set a precedent. It is suggested that this position – taking into account national or collective self-defense, however defined, as a sufficient international legal basis for the use of force – would contradict the position of the United States. Allies, including NATO allies. The United States must critically challenge its position and actively engage with it in this regard. In practice, States rarely provide the information on which they have relied in the exercise of self-defence. But from time to time, exceptional situations arise and a State finds itself before the International Court of Justice. Only then should the information on which they rely be transformed into “evidence”.
However, not all information on which a State bases its decision whether or not to exercise its right of self-defence is admissible as evidence or even weighed before the Court. The use of the word “information” would imply a much lower standard of proof than that of “evidence”. However, some consolation can be found in the provision of the footnote that States should have “a high degree of confidence” in such information. With regard to this two-part test, the United States takes a controversial position: successive governments seem to believe that self-defense alone is sufficient to comply with international law. This idea appears in the Obama administration`s “Civilian Casualty Report” when it assumes that a person can legitimately be attacked by a drone because they can be targeted under the LOAC “or” in the exercise of “U.S. national self-defense” (footnote a). U.S. national self-defense refers to the right of jus ad bellum to self-defense.
The document therefore suggests that the authority of jus ad bellum would suffice for these strikes to comply with international law, without having to consider the additional application of the DCA, HRL or (if distinct from HRL) the law of individual/unitary self-defense. Or at least, the report is silent on the law that would apply in addition to ius ad bellum if the DCA were not applicable. In short, the limited reason discussed in this article boils down to this: the US could make a substantial legal argument to attack North Korea before the strike, based on international law and precedent in some cases. But the variability of historical examples and the behaviour of Security Council members make it unclear how much legitimacy the international community would accord to the fateful decision of the United States. A few years ago, the legal adviser to the U.S. State Department, the British Attorney General, and the Australian Attorney General all did something that is not often done, even though their efforts did not receive the attention they could have received. All three delivered public speeches expressing their own government`s understanding of the law of force and their government`s legal justification for the use of force against non-state actors.