The right of self-defense of States is basically considered as a sacred principle that is meant to protect countries that are considered to be small and weak from the aggression of other countries that are more powerful. Nonetheless, what is satirical in the extreme is that throughout the period of over sixty years after 1945, only the Big Powers or countries that their military powers are strong dearly invoked this right of self-defense as validation for them using force against other countries. In justification of such an abuse of force, the powerful countries perpetually referred to Article 51 of the Charter of the United Nations.
Basically when looking at the situation before September 11, although most nations do not practice anticipatory self-defense with the perception that it would lead to a dangerous precedent, various authors supported the idea. Nevertheless, there were huge arguments against such notion be4cause the opinions that were held by most writers were generally divided. State practice however has never been in favor of such rights in order to be well established as a customary international law of the time.
Yet, after the September 11, louder voices have advocated for the legitimacy of the anticipatory self-defense. The pronouncement of the doctrine of "preventive" has worsened the matter even further (In accordance to other writers, it has been 'preemptive') self defense as expressed in the National Security of the United States of America which goes far beyond the customary concept of 'anticipatory self-defense. The major aim of this essay is to reappraise the validity under the international law of anticipatory self-defense (Thomas 2002).
It tests the legality of the anticipatory of self-defense on the basis of primary sources in regards to the international law; treaty law (the Charter of the United Nations) and customary international law. It also examines and explains the Caroline formula and validates that it had nothing to do with customary international law as a result of no widespread state practice and juries' opinion prior and after the September 11th. The essay reaches a conclusion that the state practice after September 11 tends to disregard the application of force against imminent terrorist attacks, Article 51 of the Charter remains a good law to cope with the normal inter-state use of force and also despite the flaws of the United Nations, the Charter based system thus stands a chance of serving the international community even in the 21st Century world order. Basically, the scope of this article can be termed as limited to the well-established and the traditional concept concerning the right of self defense of a nation i.e., self defense of a state against the use of force by another state.
TESTING THE LEGALITY OF ANTICIPATORY SELF-DEFENCE ON THE BASIS OF THE PRIMARY SOURCES OF INTERCONTINENTAL LAW
Clarification of terminology
Thomas (2002) proposes that prior to turning into the discussion of international legal framework, it is important to clarify terminologies. It is important to note that the outset that there is no consensus as to the use of terminologies in this course. The most known meaning of the term 'anticipatory self-defense' is 'the use of force in self-defense alongside an imminent attack' (according to Caroline formula). Nonetheless, given that anticipatory self-defense is also preemptive in nature, the two terms may be applied interchangeably.
The pronouncement of the National Security Strategy of the United States of America worsens the situation even further since it aims at expanding the traditional norms of anticipatory self-defense in order to include the use of force against threats which may not be imminent. For instance, taking the actual words used in the NSS itself, various commentators describe the situation as 'preemptive' self-defense or rather 'Bush doctrine'. However, others think that the NSS can be interpreted as promoting the doctrine of 'preventive' self-defense which a number of present writers are in agreement with. The Secretary-General's High Level Panel also applies the term 'preventive' in describing the use of force against the non-imminent threats (Thomas 2002).
In a nutshell, there are only two possible situations that do not fall under the Article 51 requirements of the actual 'armed attack': an imminent attack and non-imminent threat. Most present writer hold a belief that the term 'anticipatory self-defense' is well documented and has been in the public domain in use for many years in describing the Caroline concept of self-defense alongside imminent attack and therefore it should be maintained in that position. And there is no harm addressing the situation as 'preemptive self-defense'.
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However, the only term that can be applied in describing the use of force against a non-imminent threat is termed as 'preventive self defense (even though it is believed that the term self-defense should not be applied for such preventive war against remote threats) (Thomas 2002). For the purpose of this article it is clear that the term 'anticipatory self defense' can be used in referring to the use of armed force by a state in stopping imminent attack by another state and the term preventive self-defense describes the use of force by a state in defending another state from pursuing threat which is not imminent and more remote as articulated in the National Security Strategy of United States.
It is true that the essence of anticipatory self-defense is 'imminence' of armed attack by another state. This is a notion that seems to be based on 'military necessity' whereby 'the most appropriate defense is to attack first and break up the enemy forces before they make any possible move'. The rationale behind the doctrine of the anticipatory self-defense as stressed by all those who advocate it, is strong meta-legal argument: in an era of sophisticated missile system and nuclear weapons, it is likely to be silly and self-defeating to await the attack by another state. McDougal, one of the advocates of this doctrine wrote that:
'The conditions of obligation required to be shown by the target State have never been restricted to "actual armed attack"; imminence of attack ... has always been looked upon as satisfactory justification... States faced with a perceived danger of immediate attack cannot be expected to await the attack "like sitting duck".'
Advocates of anticipatory self-defense happens to have provided this non-legal argument a legal foundation through claiming that Article 51, by allowing an inherent right of self-defense wished to preserve the pre-existing customary law, which is considered to have allowed for anticipatory self defense also. For example, advocates anticipatory self-defense in the following terms:
'The history of Article 51 proposes ...that the article should uphold the right of self-defense, not confine it.... No State can be expected to await an initial attack which, in the present state of armaments, may well destroy the State's capability for further opposition and so endanger its very existence.'
One of the most appropriate ways of testing the legality of anticipatory self-defense is by examining it in the light of the sources of international law as preserved in Article 38(1) of the Statute of the International Court of Justice, in particular, the two primary sources of international law, namely:
a) Treaty law (the Charter of the United Nations) and
b) Customary international law
The relevant provisions of the Charter will be interpreted according to the canons of treaty elucidation. When exploring customary international law, this paper goes to the dipper roots and critically examine the Caroline incident, which has been for a long time now been taken for granted by many as typical formulation of anticipatory self-defense. Decisions of the International Court of Justice will also be taken as supplementary means for the fortitude of law. Juristic writings are not likely to help in this deference in view of the wide divides among writers and the differences in the use of line of attack (Thomas 2002).
PREVENTIVE SELF-DEFENCE IS CONVERSE TO ARTICLES 2(4) AND 51 OF THE CHARTER AND THUS DEVOID OF ANY AUTHORIZED UPSHOT
It is vital to elaborate the pivotal role in regards to the Charter of the United Nations as the most significant multilateral law-making agreement of the present day, binding on 192 members states that are virtually the international community at large. The Charter in Article 2(4) preserves the principle of 'prohibition of the use of force' as the cornerstone of peaceful relations among States which states that:
'All members shall desist in their international relations from the threat or use of force against the defensive veracity and political sovereignty of any state, or in any other manner contradictory with the Purposes of the United Nations.'
There are two distinguished stands on the interpretation of the Article 2(4) of the Charter: the restrictive and the permissive. In regard to permissive view, Article 2(4) does not lay down an absolute prohibition concerning the use of force and thus the state is still allowed to exercise the use of force in a number of situations. They argue that a complete ban on the use of force would be considered as a silly idea in the international community that do not have police force as well as efficient machinery for vindication of rights that are denied illegally. In accordance with the restrictive view, the Charter designed a radical change in State's right to use force in order for the Article 2(4) to lay down a total ban in regards to the unilateral use of force and save only areas whereby explicit exceptions are made in the Charter itself. Ideologically, the restrictive view sees the permissive view being in favor of powerful States and thus encouraging abuse (Thomas 2002).
According to an analysis of the authorities on this view reveals that the awesome preponderance of jurists are likely to concur with the view that Article 2(4) of the Charter contains a total embargo concerning the use of force. It is also clear that State practice also favors this view. Even though in the last 60 years there have been examples of use of force, only Israel after the Entebbe raid relied primarily on the permissive view of the Article 2(4). In all other cases, the state resorting to force have been dependent on assumed exceptions to the common opinion, for instance, self-defense, instead of basing it on a narrow interpretation (Michael 1991). We may therefore be obliged to wrap up that the most appropriate elucidation of Article 2(4) is that any use of force by a State for any given reason is banned unless explicitly allowed by the Charter and that the charter allows only two exceptions which are:
(1) The right of self-defense under Article 51; and
(2) Enforcement action by the Security Council under Chapter VII.
Prohibition of the use of force is a rule that has characteristics of the jus congens. According to the commentary of the International Law Commission on the Vienna Convention concerning the law of Treaties expressed the view that 'the law of the Charter concerning the ruling out of the use of force in itself constitutes a conspicuous example of a rule of international law possessing the character of jus cogens.' In the Nicaragua case the stand of the Commission was quoted with approval by International Court of Justice and in his separate view, the President of the Court Judge Nagendra Signh pronounced that 'the principle of the proscription of the use of force belongs to the realm of jus cogens.' Also Judge Sette-Camara firmly believed that 'the non-use of force rule is a peremptory norm.'
A rule of jus cogens is a peremptory norm in regards to the common international law, a norm that is accepted and recognized by the international communityof States as a whole as a norm from which no derogation is allowed. As a matter of fact, there can be no derogation from a rule of jus cogens. All international treaties and rules of customary international law that are contrary to the rule of jus cogens are null and void in case they are with no legal effect. The doctrine of preventive self-defense, as alleged to be formulated in the Caroline incident does not fulfill the requirement of an 'armed attack' under the Article 51, the only exception (in respect of the unilateral use of force) to Article 2(4) of the Charter (Thomas 2002). Since preventive self-defense is contrary to a rule that has the character of jus cogens, it therefore becomes null and void and has no legal effect.
INTERPRETATION OF ARTICLE 51 IN ACCORDANCE WITH THE CANONS OF TREATY INTERPRETATION
For instance Stone, (2006) asserts that the right of self-defense of states is enshrined in the Article 51 in the Charter in the terms: 'Not anything in the Charter at hand shall prejudice the intrinsic 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 actions essential to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be right away reported to the Security Council and shall not in any way impinge on the authority and accountability of the Security Council under the present Charter to take at any time such action as it deems obligatory in order to uphold or reinstate international tranquility and security.'
It is allowed by the states as well as publicists the Article 51 of the Charter is most dependable statement of the right of self-defense of states. Generally, states relying on self-defense always and invariably refer to Articles 51. Therefore, the most decisive answer to the question of legality of the preventive self-defense can be found by pursuing the Article cautiously and interpreting it in regards to the canons of treaty elucidation as preserved in the Vienna Convention of the Law of Treaties, 1969 (Michael, 1991).
According to Michael (1991) in regards to the Vienna Convention in Articles 31 (1) pronounces the 'general rule of interpretation': 'A treaty shall be interpreted in good faith according to the ordinary meaning to provide to the terms of the treaty in their context and in the light of its entity or article and purpose.' Together with the context, 'any consequent practice in the appliance of the treaty which institutes the agreement of the parties regarding its interpretation' and 'any relevant rules of international law pertinent in the affairs between the parties' shall also be taken into consideration. Several elements are held in Article 31(1):
To begin with, an accord must be construed in good faith. Secondly, the terms of a treaty must also be provided with their given their 'natural and ordinary meaning' since it worthwhile to presuppose that the ordinary meaning stands a chance of reflecting on what each party intends. Thirdly, the fortitude of the ordinary meaning cannot be prepared in the abstract, but rather in the context of the treaty only and in the light of its entity and rationale. The context for the purpose of the construal of a treaty encompasses its prelude (Christine 2003, pp 869).
A selective edifice relying entirely on the term 'inherent right' and disregarding the term 'if an armed attack occurs'
The Caroline incident is being relied on by a number of advocates of preventive self-defense considered as a classic formulation of the right application preemptive force and maintains that it embodies customary international on self-defense. The most ironic part is that they tend to invoke Article 51 of the United Nation's Charter based on the belief that it is likely to make their stand stronger and more solid. Nonetheless, their problem with the Article 51 is in it there is a clear phase that states that 'if an armed attack occurs', the ordinary meaning of which absolutely rejects any defensive nature of self-defense. To counter this, they attempt to depend on the phrase 'nothing in the present Charter shall impair the inherent right of...self-defense.'
(1) The first and the principal dispute made by the advocates of preventative self-defense is that the term 'inherent right' in Article 51 must be understood to mean the pre-Charter customary law right, which allowed anticipatory self-defense, and that this habitual law right should not be entitled to impairement by 'nothing in the present Charter.' For instance, 'The travaux pre'paratoires proposes that the Article should uphold the right of self-defense, but not restricting it. Committee 1/1 stressed in its account that the use of arms in justifiable self-defense remains admitted and unimpaired....' Unfortunately, still, this argument is dangerously blemished.
First, travaux pre'paratoires (drafting history) is merely a complementary means and relying on it is unjustifiable in cases whereby the terms of the accord are comprehensible and unmistakable. It can be viewed as a rule of thumb of the grammatical edifice that 'if an armed attack occurs' qualifies the term 'inherent right'. Second, although we admit the legality of the alleged travaux pre'paratoires, what it thus stands for is that States have the inherent right of self-defense which is derived from the customary law and that the Charter does not snub or relinquish that inherent right. What it is believed that the Charter does not impair is the continuation of the inherent right of self-defense but not the contents of such a right. It is also clarified that the Charter undoubtedly and in effect imposes two imperative conditions on the right of self-defense of states that states that: a state can implement the right of self-defense
(a) If an armed attack occurs; and
(b) Until the Security Council has taken measures necessary to maintain international peace and security.
The third argument is based on a discerning construction taking only the term 'inherent right' from the whole article, and leaving out and ignoring all the other vital words of restriction in the context. Such a discriminatory interpretation perceptibly does not have good faith since it fails to conform to a central canon of treaty interpretation: and to understand the treaty terms in their framework. The succeeding phrase which states that 'if an armed attack occurs' very clearly makes the preceding phrase eligible to the "the inherent right of self-defense".
According to Christine (2003, pp 876), it becomes clear that the phrase that states that "if an armed attack occurs" is not only a palpable term of Article 51 but also its primary idea. In order to ignore such an important term of a treaty and its entirety or even to demean it amounts to a serious infringement of the canons of treaty understanding. In this respect, () stated that '...When the Charter has a precise prerequisite relating to a fastidious lawful category in order to assert that this does not limit the wider ambit of the customary law relating to that category or quandary is to go beyond the bounds of logic. Why have agreement provisions at all?'
(2) Secondly, supporters of preventative self-defense elude to historic arguments, for example, the fact that the term of Article 51 did not appear in the Dumbarton Oaks Proposals and it was added for the purpose of harmonizing the security system of the United Nations as well as local organizations. It is evident that the Article was aimed at coordinating the security systems of the United Nations and of the regional organizations. Therefore, we must also recognize the original idea expressed by the Latin American States that self-defense can be exercised if there is an armed attack or an aggression.
In addition, although it was added with the aim of reconciling the security systems of the common organization and the local organizations, it has in turn developed to an article of the United Nations Charter and it is important that it is applied and interpreted as a stipulation of a bilateral law-making treaty. The assertion that the words 'if an armed attack occurs' are redundant cannot, therefore, be conventional because it does not concur with the objectives of the drafters of the Charter. The link with the Chapultepec Treaty gave a more crucial reason for the insertion of the words 'if an armed attack occurs'. It is also important that the North Atlantic Treaty and similar collective self-defense treaties based on Article 51 endows with only self-defense against 'armed attacks', and not for resistance against imminent danger of armed attacks (Christine 2003, pp 874).
(3) Thirdly, they uphold that Article 51 basically places interest on one form of self-defense i.e. reaction to an armed attack, and that it does not counteract other patterns of genuine action in self-defense granted by customary international law. This manner of interpretation is not warranted and can thus be considered to be contrary to the logic. This can also be termed as a violation of the maxim of interpretation expressio unius est exclusio alterius and it does not make sense to state the obvious (that self-defense can be exercised if an armed attack occurs) and in turn ignore a reference to the uncertain circumstance (that self-defense can be exercised in expectation of an armed attack). Anticipatory self-defense (if lawful under Article 51) would call for more acute bylaw by the article than an answer to an armed aggression since chances for ill-treatment are higher. It is thus likely to require closer custody by the Security Council.
(4) Fourthly, the advocates by the way allege that Article 51 appears to be incompetent piece of draftsmanship. In fact, there is nothing wrong with the draftsmanship but rather the phrase 'if an armed attack occurs' which seems to be a palpable declaration. It is also argued that the drafters of the Charter were great statesmen of the time and they would not slot in a very obvious expression like this without any clear intention and thus the leading outlook of scholars is in accord with this view.
Interpretation of Article 51 in good faith in accordance with the ordinary meaning of its terms in their context
The judgment of the International Court of Justice in the 'Nicaragua case' presents an authoritative interpretation of the phrase 'inherent right'. This interpretation can in turn be taken as the meaning of the term. An observation by the Court indicates that the United Nations charter borrows a leaf from the pre-existing international customary laws. It is important to note that the actual text of article 51 contains the reference to international customary law. The article mentions the term 'inherent right' in terms of collective and individual self-defense. It is expected that nothing in the current Charter shall lead to impairment in addition to its close association to an armed attack.
A true account is that the World Court interprets the term 'inherent right' as a pre-existing right. The nature of the right is customary. It can also be concluded that the expression 'nothing in the present Charter shall impair' signifies not to compromise the fact that the affected States have the inherent right of self-defense. In addition to this, the content of the right does not have to be referred to. The expression "if an armed attack occurs" is treated as an important element or constituent that makes the expression qualify as an 'inherent right'. This interpretation makes sense according to Article 51. It works to rationalize the use of the term inherent as an adjective. It does this without attributing to its consequences according to the advocates of anticipatory self-defense.
The expression; 'if an armed attack occurs' refers to the restriction of the right of self-defense to an 'actual armed attack.' An armed attack qualifies to be an armed attack or can be identified as one only when it happens, exists or occurs and not before just like any other event. Quite a number of publicists are in support of this meaning (John, 2010 pp 249).
Higgins, (2002, pp 14), suggests that a limitation in Charter 51 is the suggestion that the right of self-defense may be exercised only 'if an armed attack occurs'. This limitation is what reduces the freedom of action as compared to what the States had in the traditional international law. Another observation is that the aspect of self-defense against threat was omitted in the act. According to the likes of Hambro, Simons and Goodrich who are the famous commentators of the Charter revealed that an explicit recognition of the exercise of the right of self-defense as legitimate in the event of an armed attack to a victim is necessary. History reveals how this restraint was shown by the United States government during the Cuban missile crisis.
Article 52 was used to justify measures of quarantine in place of calling up on the right of self defense in Article 51. These are just but evidences of the dangers in relation to relying in the claim of right to self-defense. In conclusion, 'armed attack' is therefore a vital necessity in order to exercise the right of self-defense. It follows that the expression 'if an armed attack occurs' indicates that an actual armed attack ought to have occurred or is going on and to anticipate an act of self-defense is contrary to the natural meaning of Article 51.
The international court of justice has jurisprudence as it relates to the expression 'armed attack'. For a long time the International court of Justice has not come across a typical concrete scenario or rather case so that it can determine the degree of legality or in other words, the anticipatory of self-defense. Higgins, (2002, pp 14) further asserts that these issues of self-defense can be tackled with reference to the four land mark cases. They include the oil platforms, Palestinian wall, Nicaragua and the armed activities in Congo. The expression 'armed attack' is therefore reaffirmed and therefore should be viewed as a pre-requisite for an act of self-defense that is lawful. The above jurisprudence of the International Court of justice is seen to favor the right of self-defense whenever an armed attack occurs. The right of self-defense is favored instead of the right of anticipatory self-defense.
The issue of anticipatory self-defense was not explicitly addressed for instance in the Nicaragua case since the parties were found only to rely on the right of self-defense in the event of an armed attack instead. Another reason was because lawfulness of a reaction towards the threat of armed attack had not been brought up. The Court showed lack of insight on the issue.
The Court's statement was that the exercise of the right in the case of self-defense is subject to the respective State in question which presents the victim of armed attack. According to the World Court the inherent right possessed by any State is expected to cover both individual and collective self-defense.
A closer look at Article 51 reveals that the expression 'if an armed attack occurs' seeks to show how the State practices the aspect of time considering the inconsistency of an armed attack with the pre-existing customary laws. This is commonly known as the Caroline Formula which coincides with the existing State practice or customary law of time. The development of customary International law on the use of self-defense and force can closely be attributed to quite a number of General Assembly's Declarations and resolutions.
The Declaration by the General Assembly in the year 1970 has been regarded as being authoritative. In relation to how force is applied, directs how each and every affected state has a duty of refraining from the threat. Crime against peace therefore describes a war of aggression. It is difficult to achieve peace when the affected states resolve to unilaterally use force in order to settle a dispute or find peace. In other words, it is very difficult when all the parties decide to resolve a disagreement but by employing one-sided use of force while anticipating a simple attack by the disputant. The exercise of anticipatory self defense is counter-productive according to the General Assembly's resolutions.
Three tremendous cases; the Cuban quarantine, Israeli bombing of Iraqi nuclear reactor and the Six day War are usually referred to by advocates of anticipatory self-defense in respect to the practice of States. They are known as precedents of pre-emptive use of force. A detailed examination will be realized when the customary international law is closely analyzed. The anticipatory self-defense was only invoked in the case of Israeli bombing of Iraqi nuclear reactor. The State was however blamed by the Security Council for its actions. It was viewed as a violation of the Charter of the United Nations and international regulations about self-defense.
In conclusion, it is true to note that only a few States have since invoked the anticipatory self-defense exercise as it relates to the use or application of force in the event of an armed attack towards a particular state. The post United Nation's Charter has never been in support of the claim of self-defense as much it is a requirement in the Charter.
Necessity and proportionality are vital ingredients for self-defense in a lawful manner according to customary international law. The aspect of necessity seeks to reduce the use of force in situations that require force to respond to an attack. Peaceful alternatives should therefore be employed instead. The aspect of proportionality works to limit the degree of force that is to be employed in the event of an armed attack. The force for self-defense ought to be proportional and reasonable and not excessive. However, it is difficult to apply anticipatory self-defense when the customary doctrines are in place (Michael 1991, pp 27).
Finally we conclude that new customary international law can, nevertheless, be shaped only by pervasive and unswerving state practice and opinio juris. Preventive self-defense possesses certain 'inherent weaknesses' which involves fortitude of conviction of attack, which is extremely hard to make and necessitates an attempt to establish what the government intends. Such a situation may cause an unthinkable tragedy (especially when the use of force involves nuclear weapons) in cases whereby there is a misguided appraisal of a state of affairs.
Generally, if an individual interprets Article 51 in good faith and in accordance with the ordinary meaning of its terms in their context in the light of their rationale and objective, taking into account subsequent practice of states and other pertinent rules of international law, the meaning is apparent and indisputable: self-defense is exercisable only when there is an armed attack and anticipatory self-defense is irreconcilable with the UN Charter context.