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This dissertation employs the doctrinal method of research to appraise the doctrine of Self defence as one of the fundamental principles of International law, and as one of the exceptions to the prohibition on the use of force. To this end, this dissertation centers on Article 51 of the United Nations Charter which provides for the right of self defence in International law. The dissertation contends that the provisions of Article 51 have generated some controversies among scholars of International law. These controversies have tended to obscure the scope of self defence in International law. The major problem of this research is that it is not clear whether Article 51 has abrogated or preserved the doctrine of anticipatory Self defence in Customary International law. This problem has been complicated by the use of the phrases ‘inherent right of individual or collective self defence’ and ‘armed attack’ in Article 51. The question therefore is that ‘does international law expect a State to do nothing where it is a target of an imminent attack’? The objective of this dissertation therefore is to examine the relationship between Article 51 and rules of customary International Law, and the circumstances in which the right of self defence can be exercised. The dissertation makes some findings by submitting that the doctrine of preemptive Self defence is contrary to Articles 2(4) and 51 of the Charter which prohibits unilateral use of force. Furthermore, both Article 51 and customary international law provide different rules for the exercise of the right of self defence .The writer suggests that there is urgent need for an amendment of Article 51 to bring it in line with current global challenges to global security. The phrase ‘armed attack’ should be well defined and the concept of collective self defence should be deleted from Article 51.
TABLE OF CONTENTS
Title page – – – – – – – – – – i
Declaration – – – – – – – – – – ii
Certification – – – – – – – – – – iii
Acknowledgement – – – – – – – – – iv
Abstract – – – – – – – – – – v
Dedication – – – – – – – – – – vi
Table of Contents – – – – – – – – – vii
Table of Abbreviations – – – – – – – – xi
Table of Statutes – – – – – – – – – xii
Table of Cases – – – – – – – – – xiii
Glossary – – – – – – – – – – xiv
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background to the Study – – – – – – – 1
1.2 Statement of the Problem – – – – – – – 4
1.3 Aim and Objectives – – – – – – – – 7
1.4 Scope of the Study – – – – – – – – 7
1.5 Research Methodology – – – – – – – 8
1.6 Justification – – – – – – – – – 8
1.7 Literature Review – – – – – – – – 9
1.8 Organizational Layout – – – – – – – 30
CHAPTER TWO: CONCEPTUAL CLARIFICATION
2.1 Introduction – – – – – – – – – 32
2.2 The Meaning and Nature of Self-defence – – – – – 32
2.3 The Meaning and Nature of War – – – – – – 35
2.4 The Meaning and Nature of Terrorism – – – – – 38
2.5 The Meaning and Nature of Customary International Law – – – 42
2.6 The Meaning and Nature of Collective Defence – – – – 45
2.7 The Meaning and Nature of Reprisals – – – – – – 49
2.8 The Meaning and Nature of Use of Force – – – – – 52
CHAPTER THREE: THE DOCTRINE OF SELF-DEFENCE IN INTERNATIONAL LAW
3.1 Introduction – – – – – – – – – 57
3.2 The Development of the Doctrine of Self-defence – – – – 57
3.2.1 The just war period – – – – – – – – 58
3.2.2 The positivist period – – – – – – – – 59
3.2.3 The Kellogg- Briand Pact period – – – – – – 61
3.2.4 The United Nations Charter period – – – – – – 63
3.3. Self-defence in Customary International law – – – – – 64
3.4. Self-defence in the United Nations Charter – – – – – 68
3.4.1 Origin of Article 51 of the United Nations Charter – – – – 68
3.4.2 Article 51 of the United Nations charter and some multilateral treaties – 70
3.4.3 Interpretations of article 51 of the United Nations Charter – – – 73
3.5 Relationship between Article 51 of the United Nations Charter and
Customary International Law – – – – – – – 80
3.6 Self-defence as means of protection – – – – – – 88
3.6.1 The right of territorial integrity – – – – – – 89
3.6.2 The right of political independence – – – – – – 92
3.6.3 The right to protection of economic interest – – – – – 94
3.6.4 The right to protection of nationalities abroad – – – – 97
3.7 Conditions for the Exercise of Self-defence – – – – – 101
3.7.1 Immediacy – – – – – – – – – 101
3.7.2 Necessity – – – – – – – – – 103
3.7.3 Proportionality – – – – – – – – 106
3.8 New Categories of Self-defence in International Law – – – 110
3.8.1 Interceptive self-Defence – – – – – – – 110
3.8.2 Anticipatory Self-Defence – – – – – – – 112
3.8.3 Preemptive Self –Defence – – – – – – – 114
CHAPTER FOUR: THE PRACTICE OF STATES ON SELF-DEFENCE IN
4.1 Introduction – – – – – – – – – 118
4.2 Policies of Some States on Self –Defence in International Law – – 119
4.2.1 United States – – – – – – – – – 119
4.2.2 Australia – – – – – – – – – 136
4.2.3 Russia- – – – – – – – – – 138
4.2.4 Japan- – – – – – – – – – – 139
4.2.5 France – – – – – – – – – – 142
4.2.6 China – – – – – – – – – – 143
4.2.7 United Kingdom – – – – – – – – 145
4.2.8 Nigeria – – – – – – – – – – 148
4.2.9 Israel – – – – – – – – – – 156
CHAPTER FIVE: SUMMARY, FINDINGS, AND CONCLUSION
5.1 Introduction – – – – – – – – – 164
5.2 Summary – – – – – – – – – 164
5.3 Findings – – – – – – – – – – 166
5.4 Suggestions- – – – – – – – – – 172
Bibliography – – – – – – – – – 177
1.1 Background to the Study
The doctrine of self-defence is one of the fundamental principles of International law.1 The doctrine of self defence is common to all systems of law, and generally, as a legal concept, the function and scope of Self-defence vary with the level of development of each legal system. Thus, International law which is characterized by lack of specialized machinery for the enforcement of International law and protection of the rights of member states has vested the individual member states the right to use force for the protection of certain essential rights.2
However, as International law advances, as its processes of enforcement and protection become more effective, the tendency is to allocate duty of protection to a centralized authority such as the United Nations Security Council, and to restrict the right of unilateral action by individual member states. However, no matter how effective the means of protection afforded by the centralized authority is, it will be necessary, for the protection of certain essential rights, and interests of the state to invest the states with the right of self defence until the enforcement machinery of the United Nations (UN) comes to their aid.3 It is difficult to envisage a legal system in which the prohibition of recourse to force has no exception in the form of the doctrine of self-defence. This is the justification of Self-defence in International law.
1 O‟Connell, D. P.(1970) International Law. Stevens & Sons, London, Volume One, Second Edition, p. 315.See also, Nolan, C.J.(2002). The Greenwood Encyclopedia of International Relations. Greenwood Publishing, London, Volume 1V,p.1413. 2 Bowett, D. W.(1958). Self-defence in International Law. Manchester University Press, Manchester, p.3. 3 Ezdi, A.(1974) Self-defence under Article 51 of the United Nations Charter: A Critical Analysis. Pakistan Horizon, vol. 27, No. 2, (Second Quarter), p.29.
In the United Nations system characterized by a decentralized machinery of its legal system, the enforcement of International law and the protection of rights recognized by International law is, traditionally, a task delegated to the individual members, the sovereign states. Naturally, the right of self-defence in international law features as the basic and fundamental right of every member state. Within the last fifty years, international community has moved towards a degree of centralization hitherto unknown; and with that development the prohibition of individual use of force has come pari pasu.4Thus, the need to define the right of self-defence with some precision arises from this development, for, as the main exception to the general prohibition of force, the right of self-defence if left undefined and unregulated could virtually deny the prohibition on the use of force any real meaning.
It is against this backdrop therefore that the writer‟s interest to research in this field is generated noting the fact that the concept of self-defence in international law entails certain essentials such as „necessity‟, „proportionality‟, and „Immediacy‟.5 Article 51 of the United Nations Charter defines self-defence in the following terms:6 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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.
The inclusion of the above provisions in the UN Charter is significant in two main aspects. In the first instance, it strongly states that forcible measures (other than self-defence)
4 Bowett, D. W.(1958) Op.cit p. 4. 5 Ibid, p. 1025. 6 Article 51 of the UN Charter,1945.
which were lawful prior to the Charter do not survive its adoption and entry into force.7 This is due to the fact that, unlike the right of self-defence, such forcible measures as reprisals, wars, etc are not affirmed by the provisions of the Charter. Secondly, the general wording of Article 51 introduces a new normative dimension to the lawful exercise of the right of self-defence whereby treaties, alongside the established principles of customary international law may now be used to govern the lawful exercise of any self-defence actions.8
Therefore, by virtue of the foregoing, the objective of this dissertation is to appraise the concept of self defence in international law, and analyze the circumstances in which the right of self defence can be invoked. Furthermore, this work articulates the fact that the right of self-defence arises in the event of a breach of a legal duty owed to state acting in self-defence. This element is essential if self-defence is to be regarded as a legal concept.9 It is this precondition of delictual conduct which distinguishes self-defence from the „right of self preservation‟, „right of necessity‟ and other forms of use of force. In essence, self-defence is a reaction against a delict (wrong) which violates certain substantive and essential rights which include territorial integrity and political independence of a sovereign state.
The right of self-defence is not absolute. The measures of self-defence which may be permissible are subject to the conditions governing the right of self-defence, and these conditions are „necessity‟, „proportionality‟, and „immediately‟.10 These condition, are in addition to the conditions stipulated in Article 51 of the Charter. Thus, Self defence is subject to certain conditions against which the validity of any act of Self-defence is tested.
7 Kritsiotis, D.(1996) The Legality of the 1993 US Missile Strike on Iraq and the Right of Self-defence. International and Comparative Law Quarterly, vol. 45, No. 1 (January) p. 165. 8 Ibid., pp. 165-166.
9 Bowett, D. W.(1958).Op.Cit. pp. 29-86. 10 Agwu,F.A.(2005). United Nations system, state Practice and the Jurisprudence of the Use of force. Malthouse Press Limited,Lagos,p.66.
Finally, the writer concludes this work by identifying the challenges of the present practice, and proffering viable measures to ensuring an effective understanding of the doctrine and practice of self-defence in international law.
1.2 Statement of the Problem
There is a wide range of disagreements on the circumstances in which states can resort to force in self-defence. Thus, the problem of this research is the scope of self defence in Article 51 of the UN Charter. Some of the issues connected to the scope of Article 51 include; the legality of anticipatory and preventive self-defence in contemporary international law, the extent to which self-defence can be exercised against non-state actors, and the legal consequences for the violation of Article 51 of the UN Charter. It is intended here to highlight some of these issues.
First of all, there are debates as to whether the UN Charter extinguishes the customary right of self-defence or simply preserves it. On the one hand, it has been argued that the UN Charter supplants or extinguishes the customary rules on self-defence, and therefore terminates the right of anticipatory self-defence. On the other hand, it has been argued that Article 51 has not subsumed the rules of customary law on self-defence. Another aspect of the problems associated with Article 51 relates to the scope of „armed attack‟. There is no consensus as to what constitutes „armed attack‟. It is this uncertainty around „armed attack‟ that gave room for the expansion of Article 51 to include:
1. Preemptive strikes in the face of alarming military preparation so as to quell any possibility of future attack by another state, even where there is no reason to believe
that an attack is planned, and where no prior attack has occurred (preemptive or preventive self-defence).11
2. The use of force against troops, planes, vessels or installations in the event of threats likely to result in imminent attacks, particularly when the state resorting to force has already suffered an armed attack and fears that more attacks are being prepared (anticipatory self-defence).12
3. The use of force by a state whose territory or military assets are ostensibly the target of an attack already launched by another state, in order to halt the attack (interceptive self-defence).13
Unfortunately, these few categories of self-defence have not been expressly captured by Article 51 of the U.N. Charter. Thus, it is a problem in international law on use of force. Secondly, there is an issue as to whether self-defence can be exercised against terrorists (non-state actors).That is, whether terrorist act would constitute „armed attack‟. This question is pertinent given the spate of „terrorists‟ activities across the globe the implication of which was not contemplated by the drafters of the Charter. Thus, in the event of armed attack by a terrorist group such as Boko Haram, how can the right be exercised without violating the rule of non-intervention?
Similarly, since September 11, 2001, the world has seen the emergence of new forms of self-defence that are not based on „armed attack‟. These measures of self-defence have been justified as necessary means to combat terrorism and contain the risk of Weapons of
11 Natalia, O. and the Esther, S. (2005). Exploring the Limits of International Law relating to the Use of Force in Self-defence. European Journal of International Law. Vol. 16, No. 31,( 2005), p. 499. 12 Ibid. 13 Ibid.
Mass Destruction. Since the possession of Weapons of Mass Destruction is not illegal in International law,14 to what extent can it justify the resort to preemptive use of force?
Article 51 of the Charter has prescribed a role for the Security Council. This is to ensure due process and transparency in any resort to use of force by an aggrieved state. More also, the Security Council is the only organ of the UN which has the primary responsibility to maintain world peace and security.15The state exercising self-defence is required to report to the Security Council. Yet the role of the Council is not clear in the case of exercise of preemptive self-defence?
Another issue relates to cases where international law rules and traditional practices do not clearly apply. Terrorists may strike from areas where no governmental authority exists, or they will base themselves behind what they expect will be the sanctuary of an international border.16 And they will design their attacks to take place in precisely those „gray areas‟ where the full facts cannot be known, where the challenge will not bring with it an obvious or clear-cut choice of response.
Finally, the concepts of „necessity‟ and „proportionality‟ are at the heart of self-defence in international law.17 However, what will be „necessary‟ and „proportionate‟ for the purpose of self-defence is not clear. These conditions, especially proportionality are important when the tendency of States to resort to preemptive force is considered.
14 Shaw, M. N. (2010) Op .Cit p. 1188. 15 Article 39 of the UN Charter. 16 Reisman, M. N.(2006). The Past and Future of the claim of preemptive self-defence. The American Journal of International Law. Vol. 100, No. 3, July, pp. 528-529. 17 Shaw, M. N. (2010) Op.cit p. 1031.
1.3 Aim and Objectives
The essence of this research is to examine and appraise the doctrine of self-defence in international law so that the rules governing the exercise of self-defence can be made clear as much as possible. Misconception of the rules of self-defence has led some states to use force even when there is no justification.
Therefore, the objective of this dissertation therefore is to discover the reasons for the deviation from the provisions of the U N Charter, and proffer solutions for an effective observance by reference to the following issues: (i) to examine certain concepts that bear resemblance with the doctrine of self-defence. (ii) to examine the development of the right of self-defence, nature and scope of Article 51 of the U N Charter, Self-defence as a means of protection, and the categories of self-defence (iii) to examine the role of the U N Security Council in regulating use of force in self-defence and (iv) finally, to highlight the practice of some states on the exercise of self-defence.
1.4 Scope of the Study
The scope of this research work is limited to the doctrine of self-defence in International law as well as the practice of states demonstrating the exercise of the right of self-defence.
Territorially, the scope cannot be defined because all the states of the world are concerned. However, the scope of the appraisal of state practice will be based on the practice of some states that exert a significant amount of influence in world politics. States such as United States, Israel, Russia, China, Britain, France, Australia, Japan, and Nigeria will be discussed for the purpose of analyzing the practice of these states with a view to finding out
whether or not the resort to force in self-defence by states is in conformity with Article 51 of the Charter and rules of Customary International Law.
1.5 Research Methodology
Although there are many methods of research that can be employed to gather facts and information, the dissertation is based doctrinal method of research.18 The doctrinal method will involve the use of primary documents and secondary documents. The primary documents include the Charter, treaties and decisions of the International Court of Justice and International Military Tribunal whereas secondary documents involve the use of books, articles and newspapers that have been published. Thus, this method will be used to obtain the opinions of experts in international law. This, it is believed, will put the discordant concept in a proper context.
The significance of this work cannot be overstated considering the fact that the world is now facing new forms of threats to global peace and security. Thus, this work on self-defence which is an exception to the prohibition on use of force will identify the boundaries of this doctrine and the circumstances in which it can be relied on to justify the use of force. This will instill sanity in the atmosphere of tension and threats of use of Weapons of Mass Destruction.
Accordingly, states, public international organization (e.g. United Nations, African Union, ECOWAS), and diplomats will benefit from this work. It will also benefit ministries
18 Aboki, Y. (2009). Introduction to Legal Research Methodology. Tamaza Publishing Co. Zaria, Second Edition, p. 3.
of Defence, Foreign Affairs and Police as well as members of the Armed Forces. Legal pundits, academicians and students of international law and international relations will benefit as it will expose them to a very topical issue of international discourse. Above all, it is a contribution to literature in this area. 1.7 Literature Review There is abundant literature in this field of self-defence in International law. This may be due to the fact that fewer areas in international law have attracted the attention of international scholars and jurists than the area of use of force in self-defence.
However, there is no better way of starting this review than first reviewing the work of Bowett (1958),19 one of the early leading authorities in the area of self-defence in international law. In this work, the author discusses the nature of self-defence in contradistinction to self- preservation, Necessity and Sanctions imposed by the Security Council, the competent organ of the international community. The author noted that the essence of self-defence is that it is reaction against a delict.20 In Chapters Two and Three, the author analyses the interests for the protection of which self-defence can be exercised. On the basis of the action of the British authorities in the Caroline incident, the author submits that the action of British government was taken by virtue of the „right of necessity‟, though the principles governing the exercise of the right are applicable to both necessity and self-defence.21 In Chapter Four, the author discusses the circumstances that will justify an action in self-defence on the High Seas as well as the protection of nationals. Thus, the author
19 Bowett, D. W.(1958) Self-defence in International Law. Manchester University Press, Manchester. 20 Ibid, p. 9 21 Ibid, pp. 59-60.
supports the use of force by a state for the protection of its Nationals within the territory of another.22
Chapter Six deals with the concept of „the defence of economic interest‟ i.e. whether the right of self-defence can be exercised in respect of a state‟s economic interest. The learned author submits that „there is logically no reason why such a position should not be admitted.23 Thus, self-defence is available in defence of economic interest. Chapter Seven deals with the concepts of Self-defence and War which terms may be indistinguishable but are not entirely the same as far as their legal characters are concerned. In this Chapter, the author traces the origin of the prohibition of war as an instrument of nefarious policy, and the emergence of Article 51 of the Charter as an exception. Chapter Eight deals with Neutrality and Self-defence; that is how the doctrine of Self-defence affects neutrality.24 For example, it has been noted that neutral state has a duty to assist a state acting in self-defence. Chapter Nine deals with the various parts of the provisions of Article 51 of the Charter. This brings out the inconsistencies and ambiguities in the provisions of Article 51 of the Charter. Finally, in Chapter Ten, collective self-defence is critically considered, its basis and relationship with other regional arrangements.
However, although this work of Bowett (1958) is based on the right of self-defence, there are some odds against it. First, the author has justified anticipatory self-defence but he fails to give conditions that govern its exercise to avoid abuse by more powerful states. Secondly, the work has not considered recent challenges to global peace and security such as Terrorism and Weapons of Mass Destruction as they affect the doctrine of self defence. Thirdly, the author refers to exercise of self-defence against imminent or actual attack.
22 Ibid, p. 87. 23 Ibid, p. 107. 24 Ibid, pp. 162-167.
Unfortunately, the author has not discussed the recent doctrine of preemption which seems to feature in the practice of states such as the United States since September 11, 2001. Finally, the author failed to consider the recent practice of states on self-defence.
The work of Brownlie (1963) 25 is an essential material and a reference point as far as self-defence in International law is concerned. In Part One, the author traces the origin of the legal regulation of the use of force by states prior to 1815,1815-1914 to the period of the emergence of the United Nations Charter. In Chapter Three, the work examines the doctrine of self-defence and the state practice of the period 1920 to 1929, the period of the Kellogg Briand Pact and the current period of the UN Charter emphasizing the recognition of self-defence and the reservations made to some of the treaties which were meant to regulate war as an instrument of national policy. In Chapter Thirteen, the work examines „the right of self-defence in the period after the Second World War‟. Here, the author discusses self-defence in customary international law, especially anticipatory self-defence. According to the author, it is generally assumed that customary international law permitted anticipatory action in the face of imminent danger; that Caroline doctrine permitted preventive action in a context in which self-defence was equated with self preservation.
However, the author has raised some objections to the use of anticipatory self-defence one of which is that it involves the determination of the authenticity of attack which is very difficult to make.26 The author submits that anticipatory self- defence is contrary to the principle of proportionality.27 Brownlie (1963) also disagrees with Bowett (1958) that the use
25 Brownlie, I. (1963) International Law and the Use of Force by States. Oxford University Press, Oxford. 26 Ibid., p.259. 27 Ibid.
of force in self-defence is allowed in cases of threats to the political independence of a state constituted by subversion or economic measures.28 Furthermore, Brownlie (1963) noted that the view that Article 51 of the Charter does not permit anticipatory action is correct and that the arguments to the contrary are incorrect. Lastly, the author examines the various aspect of Article 51 of the Charter such as armed attack, relationship between Article 51 of the Charter and customary international law. This work of Brownlie (1963) is rich and relatively comprehensive and exhaustive given the period it was published. However, the view of the author that anticipatory self-defence is not legal may no longer be tenable based on the current global challenges of Terrorism and Weapons of Mass Destruction. More also, the author fails to consider the use of preemptive self-defence now used by many states like Israel, United States etc. The International court of Justice has made many pronouncements on the relationship of Article 51 and rules of Customary International law. Unfortunately, the decisions are not reflected in Brownlie‟s work. Thus, it is believed that some of these decisions may have altered the views expressed in the book. Consequently, there is an urgent need for a review of this work given its value and significance as a „pacesetter‟ in the gamut of literature on self-defence in International law.
Shaw (2008), a contemporary scholar of International Law, is not left out in the review of the literature on self-defence in International law. In this work29 of Twenty -Three Chapters, the author designed Chapter Twenty to discuss „International law and Use of Force‟. In this chapter, the author highlights the meaning and concept of use of force, the history of use of force, and forms of use of force of which self-defence is one. The author
28 Ibid., p. 262. 29 Shaw, M. N. (2008). International Law. Cambridge University Press, Cambridge, Sixth Edition.
deals with the concept of self- defence under Customary International Law; the author highlights the I.C.J. judgment on the relationship between Article 51 and customary International law.30
More also, the author has analyzed the various aspect of „armed attack‟ under Article 51 citing various decisions of the I.C.J. which are relevant to the context. It has been submitted that it will be unacceptable if one concedes to the view that self-defence is restricted to responses to actual armed attacks, and that the concept of anticipatory self-defence is of particular relevance in the light of modern weaponry that can launch attack with tremendous speed which will allow the target state little time to respond to the armed assault.31 However, the concept of anticipatory self- defence is still controversial.
Shaw noted the suggestions and arguments that have been made in favour of preemptive self-defence. However, it has been submitted by the learned writer that the doctrine of preemption must be seen as going beyond what is currently acceptable in international law.32 More also, the criteria for the exercise of self-defence are discussed by the author in detail so as to make them less abstract given the practical significance of the right of self-defence.
The author also noted the controversial issue of the exercise of self-defence for the protection of nationals abroad.33 It is controversial since there is no „armed attack‟ and the „territorial integrity‟ of the target state is not violated. However, State practice shows the reliance on use of force in self-defence to protect nationals abroad. For example, the United
30 Shaw, M. N.(2008) Op. Cit. Pp. 1118-1130. 31 Ibid., P. 1138. 32 Ibid., P. 1140. 33 Ibid., P. 1143.
States has in recent years justified armed action in other states on the grounds partly of the protection of American citizens abroad. This work is very useful and current as it has dealt with the contemporary controversial issues surrounding Article 51 of the Charter. However, the work has not examined recent states‟ practice to show the effect of the widespread adoption of preemptive self-defence. The work merely focuses on a few states such as United States. Consideration of state practice cutting across membership of the UN is important because it may be an indication of the emergence of a new rule of customary international law. However, the author appears to support anticipatory self-defence but rejects preemptive self-defence. But this writer is tempted to ask „what difference does it make?‟ For practical purposes, no difference appears to exist between the two concepts. The author also goes further to give criteria that will guide the exercise of anticipatory self-defence since the Caroline formula may no longer be enough in this Information age.
The works of Rehman (2009) 34 and Ladan (2009)35 are replete with materials on International Human Rights Law and International Humanitarian Law. Both works have explored human rights and the rules of engagement in armed conflict situations. However, neither of the works discussed the concept of self-defence in International law. Although the books provide materials for the rules of engagement in armed conflict, and the legal consequences of violation of such rules,36 the writers do not provide materials for this controversial area of Self defence in International law.
34 Rehman, J.(2009). International Human Rights Law. Pearson, London, Second Edition. 35 Ladan, M. T.(2009) . Materials and Cases on Public International Law. ABU Press, Zaria. 36 Ibid pp. 249-283; Rehman, J. Op. Cit.
The work of Harris (2010)37 contains decisions of the I.C.J. on issues related to self-defence such as Nicaragua v. United States (1986), I.C.J. Report at p.14, the Caroline case, Oil platforms case(2003), I.C.J. Report, at page 161 etc. The learned author analyses the provisions of Article 2(4) of the Charter on the prohibition of the use of force, and Article 51 in relation to the judicial pronouncements of the I.C.J. The writer considers the meaning of „armed attack‟ based on the Nicaragua case noting that not every use of force is an „armed attack‟. Even though the court‟s narrow interpretation of „armed attack‟ excludes assistance to rebels in form of provision of weapons or logistical or other support, the learned writer stated that state practice concerning 9/11 accepts that terrorist action on the scale and effect of 9/11 attack on the United States may be „armed attack‟ justifying self-defence against the state giving the terrorists a base or safe haven.38
On the role of the Security Council, the writer has submitted that the right of self-defence is temporary, existing only until the Security Council acts to restore international peace. However, due to the problem of veto, the council may never act and the right of self-defence will be of unlimited duration.39
This work is one of the reference points for the use of self-defence in international law. It has included recent cases and practical illustrations to make the „abstract‟ concept much less abstract. However, it has not considered the various practices of states on the exercise of self-defence, especially the use of anticipatory or preemptive self-defence. More also, the author has not analyzed the decisions so that the principles can be better understood, and wrong decisions brought to limelight. The author relies on state practice to justify the
37 Harris, D. (2010) Cases and Materials on International Law. Sweet and Maxwell, London, Seventh Edition. 38 Ibid.p. 248. 39 Ibid.p. 749.
exercise of self-defence against state harboring terrorists without looking at some international instruments condemning terrorism as well as resolution of the organs of the UN and other regional organization.
Agwu (2005)40 discusses the concepts of Force and self-defence in international law. In chapter Three, the abolition of use of force is discussed while in chapter Four the elements of Article 2(4) of the Charter are considered. In chapter Five, the author analyses the components of self-defence under Article 51 of the Charter, and the various interpretations of Article 51. In chapter Six, the practice of state on the use of force are highlighted, and in chapter Eight, the juridical problems in state practice such as extra-territorial self-defence, anticipatory and preemptive self-defence are dealt with.
The writer submitted that anticipatory self-defence has been abolished but that state practice still shows indifference to this rule reflecting a conception of the principles of Article 51 as a reservation rather than a grant.41The author also gives instances such as in Afghanistan where the US acted against an imminent attack while in the 1967 Arabs/Israel conflict, Israel acted with force to preempt what she anticipated to be impending Arab attack; thus, this work is commendable for such a tremendous contribution to the principles of self-defence. However, it is submitted that the discussion on anticipatory self-defence is rather terse. Consequently, the discussion on the concept of anticipatory self-defence is inadequate. More also, the author‟s submission that the doctrine of „anticipatory‟ self-defence has been abolished is misconceived as the view is without regard to the rules of Customary International Law on self-defence and current global challenges.
40 Agwu, F. A. (2005). United Nations System, State Practice and the Jurisprudence of the Use of Force. Malthouse Press Ltd, Lagos. 41 Ibid. pp. 349-350.
The work of O‟Connell (1965)42 on International law is also resourceful. In this book, the author said that a corollary of the right to independence is the right of self-defense, a right fundamental in every legal system. The author further submits that in the Renaissance period, the formulation of the right of self-defence was much less difficult than it has come to be today because the intrinsic connection with the concept of the Just war made its control relatively self-evident, or so the writers pretended. However, the earlier writers, the author submits, failed to offer any guidance on the degree of injury necessary to justify resort to force in self-defence. The author stated further that self-defence is not a satisfactory juridical conception if it allows for anticipatory action on the part of a state which fears that its security is imperiled. On self-defence as defined in Article 51 of the UN Charter, the author submits that the problem with Article 51 is whether or not it restricts the traditional right of self-defence to those occasions when an armed attack has actually occurred, and until the United Nations has taken the relevant action. According to the author the debate is relevant because of its implications with respect to acts of self-defence not amounting to repulse of an armed attack. The author opines that there is no right of self-defence for states except that of Article 51, then even a well established doctrine such as that of the Caroline might be found to have been abrogated. According to the author, in analyzing Articles 51of the Charter , it must be first noted that it acknowledges the „inherency‟ of the right to self-defence, and it seems that proper interpretation must take into account a basic natural law right beyond the abrogating power of the Charter.
44. O‟ Connel, D.P. (1965). International Law. Stevens & Sons Ltd, London. Volume I.
Finally, the author submitted that there is a link between the notion of self-defence and the right to territorial integrity and political independence of UN members, and the violations of these rights legitimize action in self-defence. Furthermore, on the issue of extra-territorial jurisdiction in exercise of the right of self-defence, the author advanced a view that it is impracticable to expect a state to stand by and await attack which is obviously impending, and that the law cannot require it to do so. Measures of self-defence are proportionate to the danger, and they may involve technical violation of the frontier across which attack is expected. However, one major loophole in this work of O‟Connell is that the author did not fully discuss the doctrine of anticipatory self-defence. The author only alluded to the doctrine even though the author stated that the law cannot expect a state to stand by while there is an impending threat, not necessarily an armed attack. More also, even though the author discusses the argument for or against the strict interpretation of Article 51, the author did not give or maintain a position. More importantly, this work having been written much earlier than the aftermath of September 11, 2001 attack, it has not taken some new development such as the doctrine of preemption (Bush doctrine) into account.
A distinguished jurist of international law, Schwarzenberger (1968)43, wrote on the principles of self-defence. In Chapter Two of the book, the writer discussed self-defence as one of the seven fundamental principles of international law. In the light of judgments of the International Military Tribunals of Nuremberg (1946) and Tokyo (1948), the author examined the meaning of self-defence and submitted that it involves a preventive action in foreign
43 Schwarzenberger, G. (1968). International Law as Applied Courts and Tribunals. Stevens & Sons Ltd, Vol. II, London.
territory which is justified only in case of an „instant and overwhelming necessity for self-defence, leaving no choice for means, and no moment for deliberation‟. The author also did a verification of the exercise of self-defence and examined self- defence and necessity and putative self-defence. On the scope of self-defence, the author submitted that if the conditions of self-defence are fulfilled, the right of self-defence overrides any competing rights of the target state in international customary law. However, the issue of anticipatory self-defence has not been dealt with by the author. The author‟s discussion did not go beyond the traditional conception of self-defence. Verily, such an important topic as anticipatory self-defence cannot be ignored when discussing self-defence and the use of force. The loophole can be traced to the period the book was written as it could not have contemplated recent development in international law, especially the increasing spate of terrorism and the quest for Weapons of Mass Destruction. More also, there is need for a review of the book because most of the illustrations and concepts are based on the facts available as far back as 1960s.
There is an article written by Obayemi44 on the legal standards of self-defence. The author started by introducing the history of the doctrine of self-defence. The author said the United States has never unilaterally attacked another nations military prior to its first having been attacked or prior to its citizens or interest first having been attacked. But that this posture has changed permanently. Hence, the emergence of the „Bush Doctrine‟.
44.Obayemi O. K. (2006) Legal Standards Governing Pre-emptive Strikes and Forcible Measures of Anticipatory Self-Defence under the U.N Charter and General International Law”. In Annual Survey of International & Comparative Law. Vol. 12: Issue One, Article 3.
On the issue of right of self-defence, anticipatory attacks, military incursions, and/or right of pre-emptive strike, the author submitted that the state seeking to take action on any of these grounds must bear a high burden of establishing the following elements which are as follows:
1. That the nation against which military action is being considered poses an actual and/or immediate risk to:
a. Their neighbours,
b. international peace, and
c. international community of states;
2. The nation arguing for military invasion of a failed state must have suffered an injury in fact.
3. There must be a causal connection between the actual or imminent injury and/or risk alleged and the fact that the second state has failed as a nation; and
4. The actual or immediate risk of injury posed by failed states would be redressable through foreign intervention, either by the United Nations or through an International action authorized by the UN.
On satisfaction of the above elements, through evidence satisfying the „beyond reasonable doubt‟ standard, the United Nations or any other aggrieved state may move to initiate military action against non-state terrorist fugitives and rogue states. Furthermore, the author considered „the right of self-defence including pre-emptive strikes and forcible measure of self-defence under customary international law‟. He submitted that clearly every nation possesses the inherent right of self-defence in International law. And the author traced the legitimate use of pre-emptive military force in accordance with international law to the
then secretary of state contained in a diplomatic correspondence with the British government. Consequently, certain requirement for a nation to undertake pre-emptive strikes against another nation based upon perceived imminent danger (as different from anticipatory military strike which is based on latent and remote danger) include (a) „timeliness‟ and (b) „proportionality‟ of the threat. The author stated that although used intermittently, the concept of „anticipatory self-defence‟ and „pre-emptive strike‟ are two distinct and separate topics of international law.
The author also examines the right of self-defence including resort to pre-emptive and anticipatory strike under the United Nations Charter. Thus, the author appraises the constituents of Article 51 of the Charter. The author concludes that written laws, whether international treaties or domestic laws cannot override a nation‟s right to self-preservation. Finally, the author considers the development of the right of self-defence by the United States.
However, in as much as states have the right to self-preservation, it is submitted that states must honor and respect their obligations in International law as a state cannot rely on its municipal laws to avoid fulfilling its international obligation. The UN Charter of 1945, particularly Article 51 imposes an obligation on states to exercise restraint in cases of conflict. As such, an „armed attack‟ is necessary before a target state can resort to use of force. Any state that reneges on this obligation will be found wanting for state responsibility.
Again, the author attempted to lay down some elements to guide the exercise of anticipatory or preemptive self-defence. But the tests the author laid down are confusing. He stated „timeliness‟ and „proportionality’ of threat as the requirement for pre-emptive strike. On
the other hand, he laid down four elements which must be established „beyond reasonable doubt‟ before a state can take anticipatory or pre-emptive strike. Thus, the guidelines for the resort to use of force on account of anticipatory self-defence are not certain. Therefore, there is need for the author to ascertain the elements for all practical purposes for the exercise of the right to anticipatory self-defence.
Kritsiotis (1996) has a work titled, “The legality of the 1993 U.S. Missile Strike on Iraq and the Right of Self-Defence in International Law”.45 After the usual introduction, the author submitted that the comprehensive proscription by the UN Charter of the Use of force by states in their relations with one another is widely understood to be a rule of customary international law and has been advanced as a rare exemplar of the concept of jus cogens. However, the general prohibition on the use of force in Article 2(4) of the Charter is subject to the exception within the framework of the charter. The author added that Article 51 provides for the inherent right of individual or collective self-defence. Furthermore, the author discussed the concept of self-defence under customary international law and the UN Charter. Under customary international law, the author identified three criteria which determine the justification for exercise of self-defense. They are; „Necessity, „immediacy‟, and „proportionality‟. Similarly, under the UN Charter, the author considered some conditions such as „The occurrence of „an armed attack‟, „the target of the armed attack‟, and finally there is „the Reporting clause‟.
45. Kritsiotis, D.(1996).The Legality of the 1993 U.S. Missile Strike on Iraq and the Right of Self-Defence in International Law. The International and Comparative Law Quarterly, Vol. 5, No.1, (1996), pp. 162-177.
Finally, the author submitted that the invocation of the rights of self-defence by the United States in defence of its action on 26 June, 1993 does not conform to any conventional understanding of the concept of self-defence, and to this extent, it is difficult to reach the conclusion that the American Missile Strike of June 1993 was in strict compliance with international law, and that the retaliatory nature of the strike strongly suggest that it was a de facto reprisal which would ordinarily have no basis in international law. However, on a critical appraisal of the work, it becomes apparent that the author holds the view that missile strike cannot be justified in international law, especially when considered in the light of the action of the US in recent years. More so, the author did not address the issue of anticipatory self-defence. The author only considered the right to self-defence under customary international law. Thus, this omission makes the work bereft of the recent development in international law. Additionally, even though the work is on “The legality of the 1993 U.S. missile strike on Iraq and the right of self-defence in International Law”, it is silent also on the new „bush doctrine‟ which appears to feature in most military action taken by the US in recent years.
Van den Hole (2005) 46 has contributed to the discourse on anticipatory self-defence. In the introductory part, the author stated the law of recourse to force has changed dramatically over the last centuries. Hence, the emergence of the new doctrine of anticipatory self-defence. The author defined the word „anticipatory‟ as a term that refers to the ability to foresee consequences of some future action and take measures aimed at checking or countering those consequences.
46. Van den hole, D.(2003) Anticipatory Self-Defence in International law. American University International Law Review 19, No.1 ,pp.69-106.
The article is divided into Four Chapters (parts).Part One deals with the question of whether Article 51 of the UN Charter which explicitly refers to the right of self-defence in armed conflict, extinguishes the customary International law of self-defence. The author submitted that the Article 51 of the Charter leaves the customary right of self-defence unimpaired. Part II of the article states that anticipatory self-defence is just one of the many forms of self-defence, and that it is legitimate to expect a state to use force in anticipation of armed attack. Part Three looks at reports and judgments of the UN authorities, which explicitly recognize that states have the right to use pre-emptive force. Finally, Part Four presents the conditions under which international law will accept the plea of anticipatory self-defence.
The author submitted that the classical definition of the Caroline case is still relevant for anticipatory self-defence today. More so, the preconditions set in the Caroline case have been extended to the right of Self-defence in general, which is quite logical, as the right of anticipatory self-defence is only a form of the more general customary right of self-defence, and the conditions for the application of both rights have to be more or less the same. The author identified certain condition for anticipatory self-defence as: ‘necessity’, „proportionality‟, and „immediacy‟. Additionally, the author said it seems reasonable to add two more conditions: First, an action of anticipatory self-defence will only be justified if the UN Security Council has not yet taken action; and second, the state against which the right of anticipatory self-defence is being exercised has to be in breach of international law.
Van den Hole may be commended for his exhaustive work on the doctrine of anticipatory self-defence. This book has helped to put this doctrine in a proper perspective. Additionally,
this work is a product of in-depth research as it has incorporated recent events demonstrating the recognition now enjoyed by the doctrine of anticipatory Self defence.
„The Myth of Pre-emptive Self-Defence‟47 written by Mary Ellen O‟Connel is relevant to the research at hand. After the usual introduction of how the US has suffered terrorist attacks from September 11, 2001, and the aftermath of the attack, the author considered the law against pre-emptive self-defence. According to the author, the UN Charter, a binding treaty to which all but a few states of the world adhere, contains the prohibition on force in Article 2(4) and establishes the Security Council as the authority to take measures against „Threats to the peace, breaches of the peace and acts of aggression‟. Thus, the author considered the general prohibition on force. After that, the author examined the exception of self-defence under Article 51 with its requirements of actual armed attack. On anticipatory self-defence, the author said that based on the practice of states and perhaps on general principles of law, as well as simple logic, international scholars generally agree that a state need not wait to suffer the actual blow before defending itself, so long as it is certain the blow is coming and that this is the standard in most domestic legal system as well.
Thus, the author submitted that a state may exercise right of „anticipatory‟ self-defence where there is convincing evidence not merely of threats and potential danger but of an attack being actually mounted, then an attack may be said to have begun to occur, though it has not passed the frontier of the target state. After giving instances of states practice of anticipatory self-defence, the author also examined the concept of „preemptive self-defence”. The author
47 O‟Connell, M.E. The Myth of Pre-emptive Self-defence. Retrieved From: http://www.youscribe.com/catalogue/presentations/actualite. Accessed on 29 may,2014 at 11:45 am.
said that the United Sates is justifiably worried about states that possess weapons of mass destruction, but mere possession of such weapons without more does not amount to an armed attack. And then he considered the policy against pre-emptive self-defence. However, in as much as the author has done a great job justifying the doctrine of anticipatory self-defence with cogent reasons and facts, the author did not address the conditions for the exercise of such rights. Certainly, there is need for this right to be delimited and defined; otherwise, it will be arbitrarily abused. Thus, the absence of the conditions is fatal to the discussion of the concept. No matter how deep the study of the concept is, if the conditions or criteria are not stated in detail, the concept may be misplaced.
An article titled, „Anticipatory Self-Defence: A Discussion of the International Law‟48, proves to be extremely resourceful. This article starts with an introduction stating the purpose of the article which is to examine the legality of the doctrine of anticipatory self-defence. In discussing the legality of anticipatory self-defence in international law, the author submitted that the difficulties surrounding anticipatory self-defence are caused in part by the distinction between the relevant treaty law (Charter) and custom. Article 2(4) and 51 of the UN Charter form the foundations of the legal regime governing the use of force. The legal regime represents a manifest departure from that of the League of Nations, and is definitely a product of the International effort after the Second World War. The resort to armed force is prohibited in International law, except where the United Nations Security Council gives permission or where Article 51 permits the use of force if used as a means of self-defence.
48. Mulcahy, J. and Mahony, C.O. Anticipatory Self-Defence: A Discussion of the
International law. Available at: www.hanselawreview.org/pdf4/Vol2No2Art06.pdf. Accessed on 29 May,2014 at 11:50 am.
International relations, the authors noted that international relations have changed since the Second World War, as have the nature of inter-state disputes. They noted further that the struggles of national liberation movements for independence during the decolonization process did not fit easily into the framework of the Charter regime.
The author identified three schools of thought on the legal status of anticipating self-defence. They are as follows:
1. Those who argue that Article 51 of the UN Charter is exhaustive of the situations under which the use of force can be used.
2. Those scholars that argue that the customary international law that predated the UN Charter still exists.
3. Those legal scholars who suggest that the “emerging threat” (the bush) doctrine provides for the legality of anticipatory self-defence.
The authors also examine „anticipatory self-defence as a rule of Jus Cogens’. They observed that if anticipatory self-defence could be classified as a rule of Jus Cogens, then Article 51 or any customary rule prohibiting it could not deny it of its separate existence.
Finally, the authors submitted that the use of force following an armed attack is fundamentally different from the use of force based upon a suspicion that another state may be preparing an attack. Where there are almost insurmountable difficulties in attempting to determine whether a rule is one of jus cogens, it is concluded that the evidence supporting the assertion that anticipatory self-defence is a rule of jus cogens is scarce and weak.
The authors asked that given the current global climate, “have we reached a stage where anticipatory self-defence is critical if we are to maintain international peace and
security? Is the opening up of broader possibilities for anticipatory self-defence desirable? Should a regime that permits us to unilaterally attack each other before an actual attack occurs be endorsed?” These are the questions the authors attempted to answer. The resourcefulness of this article demonstrated the industry and painstaking research that went into the work. The authors have done a critique of this controversial doctrine in the light of current global events. Although they did not address the conditions for the resort to anticipatory self-defence, the authors appear to lay down a general rule which is more practical. They suggested that the force used by the state should be judged not on legal concepts which are abstract, but rather should be appraised on the particular factors that gave rise to the employment of force. It is submitted that this approach for all practical purpose is better than the abstract conditions of „necessity‟, „immediacy‟ and „proportionality‟ advanced in other works.
Sanjay Gupta in the work titled, “The doctrine of Pre-emptive strike: Application and Implication during the Administration of President George W. Bush”49 opines that Pre-emptive strikes by individual nation or group of nations without the authorization of the UN Security Council are prohibited by the UN. The author appraised the concept of pre-emptive strike in light of Article 2(4) and 51 of the UN Charter. The article also took care of various views of the proponents and critics of pre-emptive strike.
Similarly, the articles examine pre-emptive strike and customary international law. The author submits that pre-emptive strikes is justified under customary international law. However, some scholars do not fully accept the argument that customary international law provides binding status for a pre-emptive strike. The article holds that USA is more concerned
49. Retrieved from: http://ips.sagepub.com/egi/content/abstract/ 29/2/17. Accessed on 29 May, 2014 at 2:50 pm.
with those aspects of Customary International Law that serves its immediate interests than with compliance with international rules of behavior. In conclusion, the author stated that the doctrine (Bush doctrine) entail serious consequences for international peace and security. This is because the doctrine makes no distinction between justifiable pre-emption and unlawful aggression. Thus giving leverage to any country to take action against an enemy state. However, as exhaustive as the work appears to be based on pre-emptive self-defence, it has not dealt with the controversial issue of anticipatory self-defence. Even though pre-emptive and anticipatory self-defence share common ground, it is submitted that a discussion on pre-emptive self-defence should also touch on anticipatory self-defence.
Asif(n.d.) in his work titled, „Self-defence Under Article 51 of the U.N Charter: A Critical Analysis‟ 50 opines that the right of self-defence is recognized by almost all systems of law. The author examines all aspects of self-defence as an exception to the general rule stated in Article 2(4) of the Charter. The work also considers the interpretation placed on Article 51.However, the work did not take into contemplation current global trends. Consequently, the concept of anticipatory self-defence is not examined in the work. It is submitted that this topical issue ought not to have been ignored in an article on self-defence in International Law. Therefore, in view of the shortcomings in this literature review, this writer will attempt to fill in some loopholes so that the topical issue will continue to receive more attention.
50. Asif, E. Self-defence under Article 51 of the United Nations Charter: A Critical Appraisal Analysis. Retrieved
From: http://ww.jstor.org/page/info/about/policies/terms.jsp. Accessed on 28 May,2014 at 5:05pm
1.8 Organizational Layout
Chapter one of this work is on the General Introduction. Here, the doctrine of Self-defence in international law is introduced; the statement of the problem necessitating the study is stated. Then, there are the aim and objectives of the study, and the scope of the study dealing with the particular area of International Humanitarian law as well as geographical area to be covered by the research. There is also a statement of the research methodology, justification for the research and literature review of the books and articles in this area.
Chapter two deals with the conceptual clarification of key terms. These terms are Use of force, Self-defence, Collective Defence, Reprisals, War, and Terrorism. These concepts are important to the understanding of the doctrine of Self-defence. The purpose here is to distinguish these related concepts from the concept of self-defence.
Chapter three of the work examines the development of Self-defence, the origin and interpretations of Article 51 of the United Nations Charter, the rights for which self-defence is a permissible means of protection, conditions of self defence and the categories of self-defence.
Chapter four deals with the policies of some states on self-defence.few states such as United States, Japan, Australia, China, United Kingdom etc will be considered. The selection of these states is based on their role and impart on international relations in this present stage of international law.
Chapter five is the concluding chapter. It summarizes the whole work. Chapter Five comprises of Introduction, Summary, Findings, and suggestions. This chapter makes findings
on the problems identified in the course of the research, and then suggestions are proffered on how to solve the problem of the research.
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