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Annual Survey of International & Comparative Law

Abstract

The concept of self defense is one field of international law that has generated, and continues to generate, much controversy. The controversy is not as to the legality of self defense, but rather springs from a proper identification of the circumstances under which it applies. Thus, the International Court of Justice and other tribunals have received criticisms from states and academics for a perceived misapplication of the principle of self defense. The interpretation of the concept, like other important concepts in international law, has not been free from political considerations. Does this situation imply that the boundaries of self defense are as yet to be determined or cannot be determined? This work is set to delineate the scope of self defense in international law. It examines the various aspects of self defense and exposes the myriads of controversies surrounding this concept that could make or mar the efforts at international peace and security. This work will argue that the doctrine of anticipatory self defense cannot be inferred from a reading of Article 51 of the United Nations Charter.

The article is divided into five parts. The first part traces the origin of the doctrine of self defense from the period pre-dating the twentieth century up to the League of Nations and moves to the era of the United Nations Charter. It also highlights the concept of just and unjust war. Part two gives attention to the general rule which prohibits the use of force by states. This rule is found in the provision of Article 2(4) of the Charter of the United Nations. It explains the problems that arise from the variegated interpretations given to some of the words used in that provision. Part three discusses the two regimes of self defense: customary international law and the UN Charter. It attempts to show the relationship between them and explains the various situations in which claims to the right of self defense may be raised. The principle of anticipatory self defense, which is a current problem arising from the nuances ascribed to the doctrine of self defense, forms the core of part four. This part also delves into the debate between advocates of a restricted interpretation of Article 51 of the UN Charter, on the one hand, and proponents of its liberal interpretation, on the other hand - a debate that has consumed too much space in the literature of international law. Part four terminates with some discussion on the preemptive doctrine, a relatively new, but controversial aspect of the doctrine of self defense. Part five is devoted to collective self defense. It explores some of the findings of the International Court of Justice in the Nicaragua case as they relate to collective self defense. A conclusion follows. The article finds that Article 51 of the Charter of the United Nations is limited to situations of armed attacks and does not admit of an exercise of the right of self defense to ward off an imminent or future attack. It also concludes that the Caroline incident does not offer a clear, incontestable ground upon which to found the right to anticipatory self defense in international law and that even though some states have invoked it under customary international law, there is no sufficient indication that that regime of law recognizes anticipatory self defense.

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