Abstract
This chapter examines in detail the scholarly developments since 1945 on the question of whether Article 51 of the Charter extinguished the concept of ‘anticipatory self-defence’ in 1945. The legal principles from previous chapters are applied to demonstrate that anticipatory self-defence is not a legal right per se, but is rather a term to describe a lawful exercise of the inherent right of self-defence against an imminent threat of armed force. The foregoing principles are also applied to the scholarly philosophies (positivist and realist) to provide a new legal basis upon which to reconcile their differences. This legal basis acknowledges the correctness, in principle, of each view – that Article 51 be literally applied (positivist view) while simultaneously authorising a state to exercise its inherent right of self-defence before it, or any ally, suffers the physical commencement of an armed attack (realist view) – and reconciles their differences primarily by defining the legal commencement of an armed attack. Judgments of the International Court of Justice concerning the international law of self-defence are also considered in detail.
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Notes
- 1.
For example William Michael Reismann, (2003) ‘Assessing Claims to Revise the Laws of War’ 97 American Journal of International Law 82, 83–84; Eric A Posner and Alan O Sykes, (2005) ‘Optimal War and Jus Ad Bellum’ 93 Georgia Law Reports 991, 993–1004 and Waxman (2009), 7.
- 2.
Corfu Channel (1949); Nicaragua (1986); Oil Platforms (2003); Nuclear Weapons (1996); Legality of the Wall (2004) and Armed Activities in the Congo (2005).
- 3.
For an excellent overview of the various views of origin of the inherent right of self-defence see Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 75 [9]–79 [16].
- 4.
For example Lauterpacht (1952), 153–155, 159 and 190–189 and 248; Keith (1929) and 149–154; Fenwick (1934), 46–49, 52, 55–61, 146, 176, and 228–250; Brownlie (2003), 5–6, 8–13, 24, 41–42 and 47–48; O’Connell (1970) and 315–317; Gray (2004), 98–99, 589 and 598; Arend and Beck (1993), 18 and 72; Goodrich and Hambro (1949), 106–107, 299; Alexandrov (1996), 19–27; Puttkamer (1982), 276–282; Jonathon Charney, ‘Universal International Law’ (1993) 87 American Journal of International Law 529, 532 and McCormack, ‘The Use of Force’ in Blay, Piotrowicz and Tsamenyi (eds) (2005), 225; McCormack (2005), 262–276. However McCormack contradicts his earlier work in which he referred to the right of self-defence as the ‘customary international law right of self-defence’; McCormack (1996), 185; Franck (2005), 3, 48–51 and Williamson (2009), 82–97.
- 5.
For example Hall (2006), 303 [9.20]–[9.21].
- 6.
Ibid and Lauterpacht (1952), 154–155.
- 7.
For example Dinstein (2005), 178–182; McDougal (1958), 599–601; Oscar Schachter, ‘The Right of States to Use Armed Force’ (1982) 82 Michigan Law Review 1620, 1633 and Jutta Brunee and Stephen Toope, ‘The Use of Force: International Law after Iraq’ (2004) 53 International Comparative Law Quarterly 756–806, 792.
- 8.
For example Kelsen (1951), 914.
- 9.
For example Wimbledon (France, Italy, Japan and the United Kingdom v Germany) [1923] PCIJ (ser A) no 1 25; Island of Palmas (Netherlands v United States) [1928] PCIJ 22 735; Asylum (Columbia v Peru) [1950] ICJ Rep 266, 276–277; (United Kingdom v Norway) [1951] ICJ Rep 116; United States Nationals in Morocco (France v United States of America) [1952] ICJ Rep 176, 200–201; Continental Shelf (Federal Republic of Germany v Denmark) (Federal Republic of Germany v The Netherlands) [1969] ICJ Rep 3 [77]–[78]; Continental Shelf (Tunisia v Libyan Arab Jamahiriya) [1985] ICJ Rep 192 [27]; Nicaragua (1986), [186] and Legality of Nuclear Weapons (1996), [70]–[73]. See also Akehurst (1971), 78–79 and Fitzmaurice (1974–1975), 75.
- 10.
Corfu Channel (1949), 33–35 and Nicaragua (1986), [174], [176], [185]–[191], [202]–[207], [210]–[215], [227]–[228], [250]–[251] and [288]–[291].
- 11.
For example Friedmann (1964), 259–260; Triggs (2006), 556 [10.9]; Gray (2004), 121; Dixon (2005), 295 who was of the view that the right of self-defence only became an ‘inherent’ right when the use of war generally became unlawful and Moir (2010), 10–12.
- 12.
For example Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [1]–[3] and 792 [10]–[12] which is at odds with his earlier references to the inherent right, for example at 677 [37] and in Randelzhofer, ‘Article 51’ in Bruno Simma (ed), The Charter of the United Nations (4th ed, 1997) 737 [33] in which he describes the origin of the right as being in ‘general international law.’ In his 2004 edition Randelzhofer does not further analyse the origin of the inherent right of self-defence.
- 13.
For example Wallace (2005), 281–282 and Clarke (2003), 152.
- 14.
For example Maogoto (2005), 94.
- 15.
For example Westlake (1913), 16–17.
- 16.
For example Malcom Shaw, International Law (4th ed, 1997), 789–790; Friedmann (1964), 260; Bowett (1958), 33; McCourbrey and White (1992), 92; Gray (2004), 130; Christine Gray, ‘The Use of Force and International Legal Order’ in Malcom D Evans (ed), International Law (2nd ed, 2006), 601; Blay, Piotrowicz and Tsamenyi (ed) (2005), 230; Hall (2006), 308 [9.28]; Arend and Beck (1993), 72; Fredrick Northedge, The Use of Force in International Relations (1974) 201; Wallace (2005), 284, Akehurst (1971), 315; Doyle (2008), 11–15; Edward McWhinney, The September 11 Terrorist Attacks and the Invasion of Iraq in Contemporary International Law (2004) 34–6 and 52–53; Franck (2005), 97–108; Waxman (2009), 6–7 who suggests that the inherent right also incorporates anticipatory self-defence. His position is closely aligned to that expressed by this book. However Waxman does not fully explain his position in this respect by making a detailed study of the origin of the inherent right or of anticipatory self-defence beyond this statement and Moir (2010), 10–22.
- 17.
O’Connell (1970), 317; Jessup (1948), 166; Henkin (1979), 142; Brunson MacChesney, ‘Some Comments on the “Quarantine” of Cuba’ (1963) 57 American Journal of International Law 592, 592; Schachter (1982), 1634; McCormack (1996), 35–40; Dinstein (2005), 182–187; Alexandrov (1996), 149; Cassese (2005), 357–363 although he does also employ the term ‘doctrine of anticipatory self-defence’, for example at 358; Triggs (2006), 577 [10.16], 578 [10.16]; Maogoto (2005), 96; Dixon (2005), 297; Clarke (2003), 152–157; Williamson (2009), 117–124 who used ‘pre-emptive self-defence’ and ‘anticipatory self-defence’ interchangeably; Fawcett (1968), 128; Sturchler (2007), 55–56 and Green (2009), 28, examine the confusion caused by the use of multiple terms such as ‘interceptive’, ‘preventative’, ‘pre-emptive’ and ‘anticipatory self-defence’ in different contexts and to mean different things. This book choses to use two terms which are supported by international law, being ‘anticipatory self-defence’ to refer to an exercise of the inherent right in response to an imminent threat of armed force and ‘pre-emptive self-defence’ to refer to a use of force in alleged self-defence against a threat of armed force but when the customary law principles of immediacy and necessity are not fulfilled by that threat.
- 18.
Brownlie (1963), 42, 257–261, 366–368 and 429. He further confused his position at 366 by describing anticipatory self-defence as a distinct ‘right’. In his most recent work Brownlie (2003), 701–702 did not expressly refer to anticipatory self-defence as a customary law right. However the context of his discussion of the Caroline implied that his position has not altered.
- 19.
Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 73 [4] and 106 [67].
- 20.
Brownlie (1963), 274–275 although on close examination of the entirety of his work Brownlie is more neutralist than positivist. See also Lauterpacht (1952), 156.
- 21.
For example Shaw (4th ed, 1997) 787; Brownlie (1963), 366–367; Harris (1998), 894–902; Cassese (2005), 361; Franck (2005), 107–108; McWhinney (2004), 34–36 and Doyle (2008), 7. See also Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 71 [1] which observed that this confusion has provided states with ‘a rather boundless margin in the subjective appreciation of their actions when claiming self-defence.’
- 22.
Lauterpacht (1952), 156. At 159 he wrote ‘It does not follow from the character of the right of self-defence – conceived as an inherent, a natural, right – that the States resorting to it possess the legal faculty of remaining the judges of the justification of their action. They have the right to decide in the first instance, when there is periculum in mora, whether they are in the presence of armed attack calling for armed resistance.’
- 23.
Kelsen (1951), 913–915.
- 24.
Henkin (1979), 141–142. See also Bryde (1982), 212–215; David Linnan, ‘Self-Defence, Necessity and UN Collective Security: United States and Other Views’ (1991) 1 Duke Journal of Comparative and International Law 51–122; Eugene Rostow, ‘Until What? Enforcement Action or Collective Self-Defence: Can Security Council Action suspend the Right of Self-Defence? (1991) 85 American Journal of International Law 506.
- 25.
Dinstein (2005), 182.
- 26.
Ibid 187.
- 27.
McCoubrey and White (1992), 91.
- 28.
Ibid 95.
- 29.
Ibid 91.
- 30.
Ibid 94.
- 31.
Ibid.
- 32.
Randelzhofer Article 51 in Simma (ed) (2004), 792 [9]–793 [13], 803 [39] and 805 [43]–806 [45]. For other expressions of the same view see McDougal, ‘The Soviet Cuban Quarantine and Self-Defence’ (1963) 57 American Journal of International Law 597–634, 629 and John Norton Moore, ‘The Secret War in Central America and the Future of World Order’ (1986) 80 American Journal of International Law 43–127, 83.
- 33.
Ibid.
- 34.
Ibid 792 [10–11].
- 35.
Ibid 796 [19].
- 36.
Ibid 803 [39].
- 37.
Ibid.
- 38.
Maogoto (2005), 16–18 and 96.
- 39.
Ibid 96.
- 40.
Hall (2006), 308 [9.28]–[9.29].
- 41.
Waldock (1978), 498 described anticipatory self-defence as operating ‘… where there is convincing evidence not merely of threats and potential danger but of an attack being actually mounted, then an armed attack may be said to have begun to occur, though it has not passed the frontier.’ See also Arend and Beck (1993), 186; Schmitt (2003), 93; Malanczuk (1997), 311–314 and Moir (2010), 10–22.
- 42.
Barry Posen and Andrew Ross (1996) ‘Competing Visions for U.S. Grand Strategy’ 21 Quarterly Journal of International Security 5, 25; John Yoo, (2003) ‘International Law and the War in Iraq, 97 American Journal of International Law 563, 564; Allen Buchanan and Robert Keohane, (2004) ‘The Preventive Use of Force: A Cosmopolitan Institutional Proposal 18 Journal of Ethics and International Affairs 1, 3; Terence Taylor, (2004) ‘The End of Imminence?’ 27 Washington Quarterly 57; David Rivkin, (2005) ‘Preemption and Law in the Twenty-First Century 5 Chicago Journal of International Law 467; William Michael Reisman and Andrea Armstrong (2006) ‘The Past and Future of the Claim of Preemptive Self-Defence’ 100 American Journal of International Law 525, 526; Christopher Greenwood, (2008) ‘International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaeda, and Iraq’ 4 San Diego International Law Journal 7, 16 and Waxman (2009), 3, 10–12;
- 43.
Jessup (1948), 166–167.
- 44.
Akehurst (1971), 311–313.
- 45.
Bowett (1958), 185 and Bowett (1972), 1. See also Arechega (1978), 9.
- 46.
Bowett (1958), 185–186.
- 47.
Ibid. Bowett believed that defensive war generally was intended to protect certain legal rights possessed by all states. These rights were (a) territorial integrity; (b) political independence; (c) security on the high sea; (d) protection of nationals and (e) economic interests.
- 48.
Brownlie (1963), 270.
- 49.
Stone (1958), 96.
- 50.
Ibid 95.
- 51.
Fawcett (1968), 128.
- 52.
Greig (1970), 674–675.
- 53.
Ibid 680.
- 54.
Ibid. See also Miriam Sapiro, ‘Iraq: The Shifting Sands of Preemptive Self-Defence 97 American Journal of International Law (2003) 599, 604.
- 55.
Friedmann (1964), 259.
- 56.
McCormack (2005), 259–261. McCormack, Anton, Mathew and Morgan (ed) (2005), 525–527 [5.4.3] implicitly adopt the legal basis of McCormack’s opinion.
- 57.
McCormack (2005) 262 (in respect to the severity of the threat) and 269 (in respect to the proximity of the threat).
- 58.
Ibid 295–302.
- 59.
Schmitt (2003), 93.
- 60.
Clarke (2003), 155–157.
- 61.
Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 112 [82]–122 [102].
- 62.
McWhinney (2004), 52–53.
- 63.
Franck (2005), 107.
- 64.
Waxman (2009), 3 and 26–30. ‘WMD’ refers to ‘weapons of mass destruction’.
- 65.
Ibid 70–75.
- 66.
Ibid 14–15 and 58–62.
- 67.
Ibid 62–70, although Waxman acknowledges the obvious dangers associated with decision to use force against a potential, as opposed to a manifestly imminent, threat; for example, 3.
- 68.
Ibid 3–4.
- 69.
Ibid 7.
- 70.
Doyle (2008), 11–15.
- 71.
International Law Commission, Report on the Work of Its Sixtieth Session – Present Problems of the Use of Armed Force in International Law 10th Commission, 66th sess, Resolution 10A [1]–[2] UN Doc/A/63/10 (2008).
- 72.
Waxman (2009), 13–15.
- 73.
Brownlie (1963), 273.
- 74.
Ibid where Brownlie points out that even under Article 51 the inherent right of self-defence can only be exercised ‘until the Security Council has taken measures necessary to maintain international peace and security’.
- 75.
Ibid 274–275.
- 76.
Ibid 275 and 367; Brownlie (2003), 701 where he wrote that ‘on the face of its text Article 51 is incompatible with anticipatory self-defence’.
- 77.
Ibid 366–368.
- 78.
Ibid 314.
- 79.
Goodrich and Hambro (1949), 105–106.
- 80.
Ibid 107.
- 81.
Ibid 300.
- 82.
Ibid 301.
- 83.
For example Akehurst (1971), 262; Malanczuk (1997), 313–314; Alexandrov (1996), 296; Dixon (2005), 279, 297 and Blay, Piotrowicz and Tsamenyi (ed) (2005), 230, 233.
- 84.
Wallace (2005), 283–284. However she appears to have contradicted her position at 281–282 where she suggested that the right of self-defence is indeed inherent to a state and that it is recognised by customary law. Wallace also identified the customary law principles of immediacy and necessity as determining when anticipatory self-defence was lawful.
- 85.
Triggs (2006), 578 [10.16].
- 86.
Ibid 580 [10.17].
- 87.
Ibid 581 [10.18].
- 88.
Cassese (2005), 362.
- 89.
Ibid 362–363.
- 90.
The scope and effect test is examined further below
- 91.
Green (2009), 31.
- 92.
Doyle (2008), 17–18; Williamson (2009), 108–110 and Moir (2010), 22.
- 93.
For example Sir Robert Jennings QC and Sir Arthur Watts KCMG QC, Oppenheim’s International Law (9th ed, 1992), [127]; Lauterpacht (1952), 153, 190–189; Dinstein (2005), 187–188; Brownlie (1963), 275; Randelzhofer Article 51 in Simma (ed) (2004), 794 [17]; Triggs (2006), 582–584 [10.20]; Alexandrov (1996), 96; Gray (2004), 130, 133; Gray (2004), 589; Doyle (2008), 17–18 and Moir (2010), 30–31. See also A Panyarachun, UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN GAOR, 59th sess, 56th plen mtg, UN Doc A/59/565 (2004) [86] and Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 84 [26]–90 [35].
- 94.
Randelzhofer Article 51 in Simma (ed) (2004), 794 [16]. At 790 [4]. Randelzhofer in comparing the concepts of ‘aggression’ and ‘armed attack’ under the Charter concluded that an armed attack has a narrower meaning of the two and represents the most serious form of aggression. At 794 [44]–[48] he makes the same conclusion about the comparison between the ‘use or threat of force’ in Article 2(4) and an armed attack under Article 51. Dixon (2005), 290 explained that deriving the elements of an armed attack for the purpose of Article 51 from international law immediately before and after 1945 is not a straight-forward matter: ‘The jus ad bellum of today is not simply a product of the United Nations Charter. Prior to 1945 there was a web of customary and treaty law which regulated the unilateral use of force by states.’
- 95.
Green (2009), 31 and 62. At 162–163 he advocates that the definition of an armed attack should simply be ‘a use of force’.
- 96.
For example Brownlie (1963), 278–279 and 365–368; Lauterpacht (1952), 154–158, 190; Kelsen (1951), 300, 305, 798 and 930; Harris (1998), 896–902; Randelzhofer Article 51 in Simma (ed) (2004), 796–802 [20]–[36]; Cassese (2005), 354; Hall (2006), 310 [9.32]; Maogoto (2005), 95; Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 84 [27]–86 [30] and 89 [35] and Williamson (2009), 152–153 and 199.
- 97.
Greig (1970), 680. See also Dinstein (2005), 188 and Green (2009), 31.
- 98.
For example McCormack (2005), 259–261 who examines various forms of conduct which in his view constitute the commencement of an armed attack. These included the large-scale build-up of military forces by Egypt, Syria, Jordan and Lebanon in 1967. In his later work (McCormack, ‘The Use of Force’ in Blay, Piotrowicz and Tsamenyi (eds) (2005), 229) his view on the relationship between anticipatory self-defence and Article 51 is founded on the protection of fundamental legal rights of a state. See also Dinstein (2005), 187–208.
- 99.
Brownlie (1963), 278–279, 357 and 365–368. He encountered similar issues in defining ‘aggression’.
- 100.
Ibid 278–279 in respect to Nicaragua (1986).
- 101.
Brownlie (1963), 362 and 365. ‘Force’ does not include economic pressure as Brazil proposed in the drafting of Article 2(4) of the Charter; United Nations Conference on International Organisations, San Francisco vi 335. See also Goodrich and Hambro (eds) (1949), 49 and Kelsen (1951), 783. See also the assessment by the Court of the attack by the United States against the Iranian oil platforms as an armed attack which was not challenged by the United States in Oil Platforms (2003), [45].
- 102.
Brownlie (1963), 270 (emphasis added by the author); United Nations Conference on International Organisation, San Francisco 1945 vi 334. For the Australian submission which suggested content virtually identical to Article 2(4) see United Nations Conference on International Organisation, San Francisco 1945 iii 543 and vi 557.
- 103.
Brownlie (1963), 373. Such issues have since been dealt with by the International Court of Justice in Nicaragua.
- 104.
Ibid 366. He eliminated ‘frontier incidents’ as too vague a category of incident to be constructive in defining an armed attack.
- 105.
Ibid 366–367.
- 106.
The United States recognises the essentiality of identifying the intent of the possessor of weapons of mass destruction in order to distinguish between an innocent and dangerous possessor. The Legal Adviser to the United States State Department, William Taft IV, wrote in a Memorandum in respect to the doctrine of pre-emption: ‘… while the definition of imminence must recognize the threat posed by weapons of mass destruction and the intentions of those who possess them, the decision to undertake any action must meet the test of necessity… in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nation from unimaginable harm’; William Taft IV, Memorandum: The Legal Basis for Preemption 18 November 2002 <http://www.cfr.org/publication> at 8 June (2008).
- 107.
McWhinney (2004), 52–53.
- 108.
Franck (2005), 3.
- 109.
Resolution on the Definition of Aggression, GA Res 3314 (XXIX), UN GAOR, 29th sess, 2319th plen mtg, UN Doc A/Res/3314 supp 31 142 (1974). A resolution of the General Assembly constitutes a recommendation only, not a binding statement of law; ibid 794–795 [17]. The definition of ‘aggression’ was not intended by the parties to define ‘armed attack’ for the purpose of Article 51 of the Charter. In fact western states strongly opposed ‘armed attack’ being mentioned at all; Special Committee on the Question of Defining Aggression, UN GAOR, 29th sess, 2319th plen mtg, UN Doc A/Ac/134/112 (1979).
- 110.
Randelzhofer Article 51 in Simma (ed) (2004), 794–796 [17]–[19] and Brownlie (1963), 355–358.
- 111.
Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 113 [85].
- 112.
For example Brownlie (1963), 365–366 and Lauterpacht (1952), 190.
- 113.
Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 85 [29]–86 [29] where the Rapporteur identified the shortcomings of the scope and effect test in distinguishing self-defence from police action of a state when an armed attack is of a minor nature.
- 114.
Randelzhofer ‘Article 51’ in Simma (ed) (2004), 789 [3].
- 115.
See William Bishop, International Law, Cases and Materials (2nd ed, 1962) 898 who wrote ‘The standard of action under this principle [self-defence], as under other principles of law, is that it is to be applied in relation to what the reasonable man (or state) would do under the same or similar threatening circumstances’. Dinstein (2005), 176 wrote that the ‘legal notion of self-defence has its roots in inter-personal relations’. Randelzhofer ‘Article 51’ in Simma (ed) (2004), 108–109 acknowledged the legitimacy of considering such fundamental human instincts in the interpretation and application of the international law of self-defence (and in fact other disciplines of scholarly study). Fawcett (1968), 128 wrote that ‘The inherent right of self-defence which every country has, and must have, cannot be effective if it can be exercised only after an attack has taken place’. O’Connell (1970), 315 wrote that ‘if the law is ineffective [the international law of self-defence] the primordial right of self-defence must reassert itself’. McCormack (2005), 124, 271–273 wrote about the necessity of the international law of self-defence ultimately serving the human defensive instinct by analogising the domestic criminal law of self-defence throughout the international community with it. He observes that domestic criminal law permits individuals to respond with proportionate force to repel unlawful force before the assault causes physical injury to the victim. He expresses the view that these laws would be of little use if they insisted on a person suffering the physical consequences of the assault before responding with defensive force. He notes a common element of these domestic laws is ‘a reasonable apprehension’ or its equivalent on the part of the victim of unlawful force being applied for the right of self-defence to be lawfully invoked. Oppenheim did not believe that international law only ever concerned states and that the interests of individuals are legitimate considerations in the formation of international law; Oppenheim (1992), 846–850. In this regard this book highlights the domestic criminal law of self-defence of Western Australia (the author’s origin) contained in s 248 of the Criminal Code Compilation Act 1913 (WA) to demonstrate this analogy. The offence of Assault is defined in s 222 and is committed inter alia by threatening to apply force to another. S 248 permits ‘such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.’ The section extends the right of self-defence to the use of lethal force if there is a reasonable apprehension of grievous bodily harm of death arising from the assault. All other state jurisdictions in Australia have similar provisions prescribing the law on self-defence and these provisions are based on the identical criteria as s 248, i.e., that the self-defending person believes it is ‘reasonably necessary’ to use force in self-defence to repel the threat of unlawful force; Crimes Act 1958 (Vic) s 9AC and s 9AE; Crimes Act 1900 (NSW) s 418; Criminal Law Consolidation Act 1935 (SA) s 15; Criminal Code 1899 (Qld) s 272; Criminal Code (NT) s 28A and Criminal Code Act 1924 (Tas) s 46. This is also the view of the High Court of Australia: (Fadil Zecevic v The Director of Public Prosecutions) (Vic) [1987] HC 87/027 and Taikato v R (High Court of Australia) [1996] 139 ALR 386, 398 (Dawson J). This book cannot list the statutory source of every domestic right of self-defence derived from all domestic criminal jurisdictions throughout the world. Instead it cites the conclusions drawn by McCormack that the general principle enunciated operates within ‘all the world’s legal systems’ and ‘religious legal systems’; McCormack (2005), 271. Brownlie (1963), 261 footnote 4 also makes reference to the proportionality rule that appears in the legal concept of self-defence in jus ad bellum and domestic criminal law. The existence of the principles of necessity and proportionality in the international and domestic legal frameworks continued to be recognised, for example Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 92 [41].
- 116.
See Goleman (1995), 7, 60, 136, 205 and 227; Warren (2004), 225–227; Ratey (2001), 66, 88, 114, 161–162, 171, 228–229 and 232 and Winston (2002), 37–42, 49 and 61–62.
- 117.
Abraham Sofaer, (2000) ‘International Law and Kosovo’ 36 Stanford Journal of International Law 1, 16; Michael Bothe, (2003) ‘Terrorism and the Legality of Pre-Emptive Force’ 14 European Journal of International Law 227, 239 and Reisman (2003), 82. However some scholars have warned against perceived dangers in applying the same underlying principle of self-defence to both international and municipal law, for example Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 75 [9]. An identification of and an explanation for these perceived dangers do not justify this warning other than recognising that both systems of law are ‘different legal environments’.
- 118.
Articles 92 and 93(1) of the Statute of the International Court of Justice, opened for signature 26 June 1945, 59 Stat 1031 (entered into force 24 October 1945).
- 119.
Articles 34 and 36 of the Statute.
- 120.
Article 96 of the Charter.
- 121.
Corfu Channel (1949); Nicaragua (1986); Legality of Nuclear Weapons (1996); Oil Platforms (2003); Legality of the Wall (2004) and Armed Activities in the Congo (2005).
- 122.
For an overview of the inherent right of self-defence in international law see Nicaragua (1986) at [193]–[195], [211], [230] and [232].
- 123.
Ibid [175]–[177] and [193]. The United States in Oil Platforms (2003), [48] also described it as the ‘inherent right’, however the Court at [76] described it simply as the ‘right of self-defence’ as it did in Armed Activities in the Congo (2005), [142]–[147]. See Gray (2004), 122–124.
- 124.
For example Nicaragua (1986), [205], [212]–[214], [250]–[252] and [288] and Armed Activities in the Congo (2005), [165] and [259].
- 125.
For example Nicaragua (1986), [176] and [195].
- 126.
For example Corfu Channel (1949), 18; Nicaragua (1986), [74], [195] and [229]–[230] and Oil Platforms (2003), [51] and [57].
- 127.
Corfu Channel (1949), 33–35; Nicaragua (1986), [174], [176], [185]–[191], [202]–[207], [210]–[215], [227]–[228], [250]–[251] and [288]–[291] and Armed Activities in the Congo (2005), [153], [163]–[165] and [259].
- 128.
Nicaragua (1986), [176].
- 129.
Ibid. The Court said that ‘The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content.’
- 130.
Ibid [176] and [193]–[194]. However see Williamson (2009), 108 who writes ‘The ICJ did not suggest that there was an entirely different customary law right of self-defence…’
- 131.
The Court’s previous decision in Corfu Channel did not specifically relate to the inherent right of self-defence or its governing international customary law principles. It will be seen later in this sub-chapter that this assumption has not been repeated by the Court.
- 132.
As questioned by the Institut de Droit International, Present Problems of the Use of Force in International Law, Rapporteur Emmanuel Roucounas, (2008) Session de Santiago, 67–165, 77 [13].
- 133.
Legality of Nuclear Weapons (1996), [40]–[41].
- 134.
Ibid [96].
- 135.
Oil Platforms (2003).
- 136.
Armed Activities in the Congo (2005).
- 137.
Legal Consequences of the Wall (2004).
- 138.
For example Nicaragua (1986), [176], [194] and [237]; Nuclear Weapons (1996), [30] and [41]–[46]; Oil Platforms (2003), [44], [51], [73] and [76]; Armed Activities in the Congo (2005), [147] and Legality of the Wall (2004), [139]–[142].
- 139.
However in Nicaragua (1986), [123] the Court referred to the underlying principle of immediacy by saying the United States’ activities ‘continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated.’
- 140.
See also Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Reports 15 [51] where the Court said ‘the state of necessity is a ground recognised by customary international law’ that ‘can only be accepted on an exceptional basis’; it ‘can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State is not the sole judge of whether those conditions have been met.’
- 141.
For example in Oil Platforms (2003), [73] where the Court stated ‘measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any measure of discretion.’
- 142.
Ibid [51].
- 143.
Nicaragua (1986), [194] and Armed Activities in the Congo (2005), [143].
- 144.
Oil Platforms (2003), [49], [51] and [76].
- 145.
For example Nicaragua (1986), [176], [193], [200] and [235]; Nuclear Weapons (1996), [38]–[44] and [96]–[97]; Oil Platforms (2003), [37] and [48]–[51]; Armed Activities in the Congo (2005), [142]–[148] and Legality of the Wall (2004), [138]–[139]. The Court did not examine Article 51 in Corfu Channel because Great Britain did not plead self-defence.
- 146.
For example in Oil Platforms (2003), [49] the Court held the inherent right, to be lawfully exercised in accordance with Article 51, must be exercised against the conduct which triggered its exercise. Despite the justifications offered by the United States for the destruction of Iran’s oil platforms, a connection was not found by the Court between the conduct giving rise to the United States’ claim of self-defence and the use of force in respect of it; [76]–[78].
- 147.
The obligation placed on states by Article 51 to immediately report an exercise of the inherent right arises after the fact, but ‘may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence’; Nicaragua (1986), [200] and [234]–[237] and Nuclear Weapons (1996), [45]. This reporting condition is not determinative of the lawful exercise of the inherent right.
- 148.
Nuclear Weapons (1996), [30]–[41] and [96].
- 149.
Nicaragua (1986), [195] and Oil Platforms (2003), [51] and [76].
- 150.
Nuclear Weapons (1996), [38]–[39]. The Court advised that if a use of force, had it been carried out, would violate Article 2(4) of the Charter then a threat of such force is equally a violation of that article: ‘The notions of “threat” and “use” of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal’; [47].
- 151.
Ibid.
- 152.
Nicaragua (1986), [193], [194] and [195] respectively. See also [229]–[233]; Nuclear Weapons (1996), [38]–[41] and [96]; Oil Platforms (2003), [37] and [43]; Armed Activities in the Congo (2005), [142]–[145] and Legality of the Wall (2004), [139].
- 153.
Oil Platforms (2003), [50]. The Court also applied the same test as referred to in Nuclear Weapons (1996), [76].
- 154.
See sub-chapters 5.2.3 and 5.2.4.
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Alder, M.C. (2013). The Existing Scholarly Debate and Judicial Developments in Self-Defence After 1945. In: The Inherent Right of Self-Defence in International Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 19. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4851-4_5
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