Article 51 of the UN Charter has this odd or unusual wording, which refers to the natural right of self-defence, and many people read that as a reference to a right of self-defence that pre-exists the Charter. So as to say, there is the Article 51 provision but on the other hand there is something that is natural, that existed or that has always existed, and which the Charter hasn't overridden, but which lives alongside the Charter law as it were – the traditional law, this natural right of self-defence.

The majority view is that that's wrong. Most of the European formalists in particular, that is to say those people who want to limit to the maximum extent the use of the right of self-defence, would not recognise the existence of another law. They would point to the Nicaragua case for example as one case in which the International Court of Justice seemed to indicate, although it didn’t quite express this, but to indicate that the only law now existing is the law of Article 51 which is identical to whatever customary law there is.

Perhaps the second point I need to say is that I used to be the legal adviser to the Finnish government, and countries such as the Nordic countries or small European countries have traditionally always, and quite consistently and quite expressly taken the view that that only Article 51 exists and Article 51 limits the right of self-defence to an armed aggression that has occurred - with sometimes a small, usually unarticulated reservation for anticipatory self-defence, but usually not.

So this is the minimal concept, and where I come from, we have always supported this minimal view for obvious reasons – because the wider the right of self-defence is, the wider the authorisation for those people who actually can use force to do so. And for small countries which sometimes feel threatened by their neighbours, as Finland for instance once did, it's very important to limit the right to a maximum extent.

On the other hand, it's of course the case that the right of self-defence should be read rationally against some useful purpose that the rule serves. What purpose might the rule of self-defence be intended to serve? Well, it's clearly to protect the sovereignty and the independence of the state – and while it's of course true that Article 51 intends to protect the independent sovereignty of the state by prohibiting armed attacks, there are other ways of behaviour apart from a straightforward armed attack which as surely as an armed attack may do away with the independence or sovereignty of the state.

The standard example here is the Botswana situation – the situation of an enclave situated inside another state – and the hypothetical is the following. The larger state within which an enclave is situated prohibits all trade and all transport of goods from the outside to this enclave. The argument is that this is a way which destroys the enclave as surely as if an armed attack had occurred, and the question is whether the enclave has a right of self-defence so that it can use force in order to break the 100% blockade which has been imposed on it unjustly by the larger state around it. Many people would say, well if you say there that there's been no armed attack and you refer to Article 51, this is precisely the start of juristic nonsense out of which international law has received a bad name, because surely that enclave must have a right to secure its independence, its freedom, the livelihood of its population. If it needs to have recourse to weapons, then surely it must be able to do that and, to put it in a nutshell, you cannot interpret Article 51 so as to bring about the result which the Article intends to prevent. The Article intends to prevent the destruction of the state. You cannot interpret the Article in such a fashion as to bring about the destruction of the state.

So this opens Article 51 up – it’s an argument about the rational purpose of Article 51, and it's not a nonsensical argument, obviously. By looking at it in this way, you can make the formalist position, which insists on the occurrence of an armed attack, seem like a ludicrous position – and so if you take this approach, then almost anything could count as an attack on your sovereignty and independence.

For instance, the Noriega situation in Panama. This was in December 1989 when the Americans entered Panama, and when the US Ambassador to the United Nations, Thomas Pickering, gave his justification for the attack in the Security Council, the justification referred to Article 51. Now many of us who were there at that time thought that this was ridiculous. Where was the armed attack from Panama’s part on the US? But then of course Ambassador Pickering could say, look here, we have evidence that Noriega is acting as an intermediary for drug traffic into the United States. Those drugs kill American youth in the suburbs of Los Angeles and in other places as surely as if those young men and women were in the trenches on the border towards Panama. Now isn't it ridiculous that if Noriega would shoot across the border and kill two of our border guards, that would enable us to have recourse to Article 51, but we cannot have recourse to Article 51 when Noriega causes the deaths of perhaps dozens, perhaps hundreds of Americans, and so Article 51 has to be interpreted reasonably.

And to interpret an Article reasonably is to refer to the raison d'etre of the Article, and the raison d'etre is to protect the state and the state involves its citizens. So you see the point. At the time, of course, all the lawyers were you know looking at the ceiling and whistling and waiting for the lunch break. But, I mean, the US argument was not simply nonsense. It's a serious argument and it's just that the culture of lawyers in that particular context wasn't prepared to buy it. But the more one thinks about it, the more it seems to be in some sense reasonable.

So to come back to the original question, whether there is an opening through which people are willing to interpret Article 51 so as to allow the use of armed force in situations where previously they didn't think armed force could be used - yes, clearly that is the case. And the door in this direction was opened in a very unambiguous fashion by the Security Council in February 1992. This was at the height of the euphoria about a new world order, and the Security Council, in a presidential statement made from the first session of the Council held at the level of heads of state and heads of government, interpreted at that time Article 2(4) which contains the prohibition of the use or threat of force. And the Council said that in this context the threat or use of force meant not just military force but also economic, ecological, humanitarian.

So once you take that step, once you say that that there are other kinds of force apart from military force - economic and so on - then the threshold has been crossed, and you are down the slippery slope which takes you to the position where anything goes, and it's a matter of interpreting Article 51 by reference to its reasonable objective. The reasonable objective is to protect the state. Anything you do to protect the state, you can then use armed force for because anything that threatens the state tends to be equal to a threat or use of force.

Q: Many people would say that, under Article 51, the right of self-defence exists as a holding operation – that you can exercise the right until such time as the Security Council takes charge of the situation in its role of guarantor of international peace and security

I don't take that argument very seriously. For instance, this is the winter war situation: in November 1939 the Soviet Union attacked Finland and the Council of the League of Nations passed a declaration condemning the Russian attack and requiring Russia to withdraw its troops immediately. Now would this have meant that the Finnish troops could not have taken action against the Soviets? So I don't think that's serious. I mean the Security Council could conceivably take action that was sufficient – but that has still not yet happened in any serious situation. Of course in every case the Security Council has taken some action – it has passed a resolution saying that the weather is nice and they hope that it will be nicer tomorrow. No respectable politician in any country will take whatever the Security Council says seriously, merely because the Security Council says it. Nor would I have ever counselled the Finnish government to do this, had they asked me.

So I cannot conceive of an actual situation where the Council’s action would extinguish the attacked nation’s right of self-defence. This has no bearing on the fact that the right is in any case limited by the requirement of proportionality.

Q: But I suppose people are concerned that you have a country that is effectively coming to its own determination about what presents a threat to it.

But this is what international law is like. It is, as the scholar Leo Gross used to say, auto-interpretive. The legal subjects that are bound by the law interpret it, and that's an aspect that you can't avoid. There are various technical ways to deal with that fact but that's how it is, and the UN Charter in particular. People interpret it themselves and what washes is dependent on a complex mix of politics, culture and other people just looking elsewhere.

So looking at the situation of Iraq and its campaign to acquire nuclear weapons, do you think the United States is justified in its argument that that constitutes a threat in a way that would justify US action?

I think the evidence is far from sufficient to conclude that this is the case. As an interested observer of the situation, without any internal CIA-produced information, I cannot see that Iraqi actions constitute a threat to the independence or sovereignty of the United States. Ergo, no right of self-defence over Iraq.

Q: And what would it take to convince you that a country like Iraq was posing a threat to the US?

Well that's too hypothetical, I can't really say definitively – but if there were some sort of satisfactory chain of causality being reproduced whereby it's shown that the Iraqi leadership, which I guess means just Saddam, is in possession of some sort of weapon, plus a means to get it to the United States, plus actually intending imminently to do that, then that would be sufficient. But otherwise not.

But mind you, if I were the US legal adviser I would act before I had all this information. One aspect of the auto-interpretative character of international law is that none of us is in a position where we can see everything, where we can judge. We all look at these situations from some particular perspective, which also contains an interest, and the interest of the US legal adviser is different from my interest here in Helsinki looking at a wonderful summer evening in complete peace and tranquillity. In complete peace and tranquillity, threatened by nobody, I say the US should not react but in Washington things look different.

There is another thing which I think is relevant historically speaking, which is that the idea that a right of self-defence reaches to maintaining the balance of power was an acknowledged aspect of the 18th century international law until early 19th century. Most of the classical writers who really began the discipline of international law thought that the law rests on the balance of power, and if somebody actually develops weapons or power (including economic power) that threaten to overwhelm the balance, then others have a right to react against that, on the basis of self-defence. Sometime thereafter in the late 19th century, in the Victorian era, people started to think that that's wrong.

But when I listen to this debate, it seems to me that there is something of that conversation now going on and that the United States’ new doctrine of self-defence has something to do with this – that if somebody just starts to become too threatening or too important or mixes the waters, then you have the right of self defence. So while I think that this is clearly of course in the interests of the hegemonic power – the US – and clearly against the interests of smaller countries, there is some historic antecedent to this and so it's not as unheard of as that. And also perhaps that it is sometimes possible to encompass that sort of idea of self-defence within a working legal system also.

The idea of a balance of power as a legal concept is of course terribly conservative. But it is not unheard of in history and has usually carried a distinct cultural baggage. I think Cicero, for one, would have accepted it as an intrinsic aspect of the civilisational project he was onto in his time: the balance that Rome sought to enforce was not merely some conglomerate of powers but an instrument of the expansion of Roman ideas. Maybe Westphalia was like that, too. And perhaps we see something of this in the new US policies around the world.

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