USE OF FORCE AND ANTICIPATORY SELF-DEFENCE: IS THE UN CHARTER

EXHAUSTIVE?

The law must be related to the changing standards of life, not

yielding to every shifting impulse of the popular will but having
regard to fundamental assessments of human values and the
purposes of society.1

Introduction

Conceding to Viscount Simonds' argument, the law must be relevant and responsive to
change, yet it is essential that the law does not yield to knee jerk urges.2 This argument is
particularly relevant to the current shifting impulses relating to the issue of use of force and
anticipatory self-defence. In the new millennium, the scope and limits of the use of force in
international relations is still the subject of strong debate. Some legal scholars and state
representatives favour an expanded interpretation of the right of self-defence which includes so-
called pre-emptive and anticipatory self-defence.3 It is generally accepted4that resort to force in
self-defence is lawful under contemporary international law,5 but several doctrines have been
advanced in recent decades as to the meaning and scope of this right. Most legal scholars6 agree
that the right of self-defence is triggered by an armed attack inflicted on a state, for which another
state is responsible, and that it is only permitted to repel the attack or to remove its consequences,
such as ending an occupation. However, others have favoured an expanded interpretation of self-
defence,7 to include namely:

(i) pre-emptive strikes in the face of alarming military preparations ‘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’ (so-called pre-emptive, or preventive self-defence);8


Talabi Adetayo Oluwafemi, (2012), Student, Faculty of Law, University of Benin, Benin- City, Edo state,
Nigeria.
1
Per Viscount Simonds in Shaw v. DPP[1962]A.C. 220at 267-268.
2
Mulcahy and Mahony,‘Anticipatory Self Defence:A Discussion of the International Law’ assessed at
www.hanselawreview.org/pdf4/vol2no2art06.pdf. September 19, 2011.
3
The expressions;anticipatory, preemptive and preventive are used interchangeably throughout this work.
4
G. Schwarzenberger and E. D. Brown, ‘A Manual of International Law’ (6th ed.), 1976,148 at 160. The
position can be summarized that measures of self-defence may be taken against illegal acts or omissions
which are attributable to another subject of International Law and the need for self defence must be
compelling and instant.
5
But the extent of State’s right of self-defence is well defined under the regime of the UN Charter. See
Article 51 of the UN Charter.
6
See generally M. Shaw, International law(Cambridge: Cambridge University Press,) 1986, 1024. R. M.
Wallace: International Law.A Student Introduction (3 rd ed) 1997,248. International Law Class Lecture,
Barr. I.O. Omoruyi, Lecturer, Department of Jurisprudence and International Law, Faculty of Law,
University of Benin, Benin-City, Edo State. September 21, 2011
7
See generally L.F. Damrosch, L. Henkin, R. Crawford Pugh, O. Schachter, and H. Smit, International
Law.Cases and Materials (2001), at 961–972; Darby, ‘Self Defense in Public International Law: the
Doctrine of Pre-emption and Its Discontents’, in J. Brömer et al. (eds.), Internationale Gemeinschaft und
Menschenrechte,Festschrift für Georg Ress (2005), at 29–34.
8
O’Connell, ‘The Myth of Preemptive Self-Defence’, paper prepared in conjunction with The ASIL
Presidential Task Force on Terrorism (2002), at 2 (footnote 10). See also at 8–11.

Electronic copy available at: http://ssrn.com/abstract=2600899

(ii)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); and
(iii) 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).
This Article explores the regime on the prohibition of the use of force, the International
Court of Justice analysis of the conditions of self-defence and the arguments as to the justification
of anticipatory self defence under Customary International Law and the provisions relating
thereto under the United Nations Charter. The writer concludes that the ICJ has largely confirmed
its existing jurisprudence in the field and avoided making any explicit, significant new
contribution to the notion of self-defence.

General Prohibition of force

After two World Wars in the first half of the twentieth century, the delegates from 51
States assembled in San Francisco in the spring of 1945 to draft the charter of the new global
organization. Pledging to "save succeeding generations from the scourge of war",9 the framers of
the United Nations Charter sought to establish a normative order that would severely restrict the
use of force, as well as an institution to enforce that restriction. The United Nations Charter, a
binding treaty to which all but a few states of the world adhere, contains the prohibition on force10
and establishes the Security Council as the authority to take measures against "threats to the
peace, breaches of peace and acts of aggression".11 The legal framework governing the use of
force by states is a complicated blend of treaty law and custom.12 The ban on the use of force is
established by Article 2(4) of the UN Charter, and is understood to have only certain explicit
exceptions. Article 2(3) states:
All members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.

Article 2(4) states:

All members shall refrain in their international relations from

the threat or use of force against the territorial integrity or
political independence of any state, or in any manner that is
inconsistent with the purposes of the United Nations".13

9
The United Nations Charter, Preamble.
10
Article 2(4) of the UN Charter. Subject to the explicit exceptions under the Charter.
11
Article 39 of the UN Charter.
12
Although there was not an exact overlap and the rules did not have the same content, but the ICJ in the
Nicaragua’s Case (1986) ICJ rep. pp14, 94 clearly established that the right exists under customary as well
as under the UN Charter.
13
The US delegate at San Francisco stated in response to the Brazilian delegation on the
scope of 2(4): “[T]he intention of the authors of the original text was to state in the broadest
terms an absolute all-inclusive prohibition; the phrase ‘or in any other manner’ was designed to insure that
there should be no loopholes.” 6 United Nations Conference on International Ogarnisation 334-35 (1945).
See generally, Ian Brownlie, International law and the Use of force by States, Oxford, 1963,275.

Electronic copy available at: http://ssrn.com/abstract=2600899

 This rule was enshrined in the " Charter for a good reason: to prevent states from using
force as they felt so inclined".14

Although some commentators interpret Article 2(4) as banning only the use of force
directed at the 'territorial integrity or political independence' of a state, the more widely held
opinion is that these are merely intensifiers, and that the article constitutes a general prohibition,
subject to the exceptions stated in the Charter.15 Article 2(4) has been described by the
International Court of Justice (ICJ) as a peremptory norm of international law,16 from which
States cannot derogate. The effects of Article 2(3) and (4) is that the use force can only be
justified as expressly provided under the Charter and only in situations where it is consistent with
the purposes of the United Nations.17 In other words, force is only justified where there are no
peaceful means available for resolving the dispute.

In this regard, there are only two explicit exceptions to the prohibition of the use of force
under the UN Charter: force authorized by the Security Council and force in Self-defence. Under
Article 39, the Security Council is empowered to determine if there is a “threat to the peace,
breach of the peace, or act of aggression". If the Council so determines, it can authorize (usually
by resolution) the use of force against the offending state under Article 42.18 Moreover, it must be
stressed that, where member states believe that another state has breached a resolution of the
United Nations Security Council, they do not have a unilateral right under Article 42 to use force
to secure adherence to it or to punish that state; what action should be taken is a matter for the
Security Council.19

Article 51 of the Charter reserves States' right to self-defence. This right is additional to
the provision of Article 42. A state does not require a resolution of in order to defend itself by
force but even the right of self-defence is subject to action by the Security Council,20 as is clear
from the wordings of Article 51, which states:

Nothing in the present Charter shall impair the inherent 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 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

14
Louise Doswald-Beck, Secretary-General International Commission of Jurists, 18 March 2003, "Iraq -
ICJ Deplores Moves Toward a War of Aggression on Iraq,
"http://www.icj.org/news.php3?id_article=2770&lang=en
15
Supra n. 3
16
Supra n. 12 at p. 14, para.190
17
Bazuaye and Enabulele, International Law, 1st ed, Benin, 2006, 272.
18
The Article states that, if peaceful means have not succeeded in obtaining adherence to Security Council
decision, the latter ‘may take such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security’.
19
Supra n. 8 at 273
20
Ibid
 Charter to take at any time such action as it deems necessary in
order to maintain or restore international peace and security.21

As exceptions to the fundamental principle of the prohibition on the use of force, Article
42 and 51 must be interpreted narrowly and within the context of the Charter. Evidently, from the
twin provisions, there are only two situations in which one State can lawfully use force against
another:

 In individual and collective self-defence ( a customary international law, which is

expressly preserved by Article 51)

 Pursuant to a UN Security Council resolution.22

Self defence: An exception to use of force

It is apparent from Article 51 that States may use force in self-defence against an armed
attack. This reading is consistent with the plain words of the article (produced above), with the
drafting history, official government positions and authoritative interpretations by the
International court of Justice. Moreover, there are still questions concerning when an armed
attack 'begins' for the purpose of the right of self-defence; but it has been argued that an attack
must be 'underway' or must have already occurred in order to trigger the right of unilateral self-
defence. There is no self-appointed right to attack another State because of fear that the State is
making plans or developing weapons usable in a hypothetical campaign.23

The text of Article 51 on the pre-condition of an armed attack before a state can exercise
its right of self-defence has been interpreted by the ICJ on several occasions.24 The Court held in
the Nicaragua case25 that the right of individual or collective self-defence is triggered only by
acts ‘grave enough’ to amount to an armed attack. The Court relied on the United Nations
General Assembly's Definition of Aggression26 to conclude that an "armed attack" triggering self-
defence may include "the sending by or on behalf of a state of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity as to
amount to...an armed attack conducted by regular forces...".27 Thus, with Nicaragua in mind, it
will not be an aberration to conclude that where a state is threatened by force not amounting to an
armed attack, it must resort to measures less than armed self-defence, or seek the authorization of

21
In the French version of the Charter, there is an even stronger emphasis on limiting the use of force in
response to serious enemy action. The term ‘agressio armee’ is used where armed attack appears in
English.
22
Bazuaye and Enabulele, International Law, 273.
23
Supra n. at 8, 7.
24
Supra n. 12 In the Iran Hostages Case, the International Court of Justice found that Iran was responsible
for the hostage-taking at the United States Embassy because of the “failure on the part of the Iranian
authorities to oppose the armed attack by militants” and “the almost immediate endorsement by those
authorities of the situation thus created.” Case Concerning United States Diplomatic and Consular Staff in
Tehran (U.S. v. Iran), 1980 I.C.J. Rep. 3, 42. See also Prosecutor v. Tadic, Opinion and Judgment, No. IT-
94-1-T, para. 137 (May 7, 1997).
25
Supra n. 12 at pp.103-104
26
See Definition of Aggresion, G.A Res. 3314.
27
Supra n. 12 at p. 233
the Security Council to do more. Moreover, the facts of the Nicaragua case did not invite the ICJ
to consider the problem of when self-defence may actually begin. The Court had no reason,
therefore, to enquire into the issue nor has any International Court settled the matter.

Meanwhile, the ICJ recently dealt with a case involving the issue of self-defence. On 6
November, 2003 the Court handed down a judgment on the Case Concerning Oil Platforms (Iran
v. United States of America), in which the Court examined a dispute arising from the attack on,
and destruction of, three oil production Complexes, owned and operated for commercial purposes
by the National Iranian Company, by several warships of the United States Navy on 19 October
1987 and 18 April 1988, respectively. The applicant invoked, as the sole basis for the Court’s
jurisdiction, the compromissory clause included in Article XXI(2) of a bilateral treaty between
these countries, namely, the Treaty of Amity, Economic Relations and Consular Rights, which
was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957 (the 1955
Treaty). Although the ICJ's main task on the merits was to adjudicate on the breach of freedom of
commerce and navigation between the parties, the Court dealt extensively with the question of
whether the United States' action could be justified as lawful measures of self-defence.
Essentially, the Court concluded that:
the actions carried out by United States forces against Iranian
oil installations on 19 October 1987 and 18 April 1988 cannot
be justified, under Article XX, paragraph 1(d), of the 1955
Treaty, as being measures necessary to protect the essential
security interests of the United States, since those actions
constituted recourse to armed force not qualifying, under
international law on the question, as acts of self-defence, and
thus did not fall within the category of measures contemplated,
upon its correct interpretation, by that provision of the Treaty .28

Legality of Anticipatory Self-defence under the UN Charter

Although the basic contours of Article 51 seem straightforward, its effect on the
customary right of anticipatory self-defense is unclear. But an area in which the ambiguities
surrounding Article 51 are the most acute is in relation to the use of force by States in self-
defence before an armed attack has taken place.29 The debate on this issue has been running for
some years;30 however it has come to prominence in the past decade or so. Certain states claim or
defend the right to use force even before their territory or members of their armed forces abroad
are attacked. The debate centres on whether the UN charter provisions, in particular Article 51, is
exhaustive of the situations in which one can use force in self-defence. If one reviews the
scholarly literature on this provision, writers seem to be divided into two camps. Those31
supporting a right to anticipatory self-defence frequently cite the customary rule that existed prior
to the enactment of the UN Charter. Under the regime of customary International law that

28
Case concerning Oil Platforms (Iran v United States of America), Judgment of 6 Nov. 2003, at para. 78.
www.icj-cij.org/icj.
29
Under international law, anticipatory self-defence is permitted only in circumstances when an 'armed
attack' is imminent. This implies that there is a particular temporal element to the test that needs satisfying
in order for anticipatory self-defence to be lawful: the act of aggression has to be very closely proximate in
temporal terms.
30
See generally Anthony Clark Arend and Robert J. Beck, International Law and the Use of
Force: Beyond the UN Charter Paradigm (Routledge, 1993), pp. 71–79. Detter: The Law of War, 2nd ed,
(Cambridge,2000), p.86; A. Cassese: International Law (Oxford, 2001), pp 301-311, Bazuaye and
Enabulele, supra at pp. 274-278.
31
Ibid
developed long before the UN Charter was adopted, it was generally accepted that preemptive
force was permissible in self-defence. There was, in other words, an accepted doctrine of
anticipatory self-defence. The classic case that articulated this doctrine is the oft-cited Caroline
Incident.
During the first part of the nineteenth century, an anti-British insurrection was taking
place in Canada. At the time, Canada was under British rule while the United States and Great
Britain were in a state of peace. There was, however, a ship owned by U.S. nationals, the
Caroline, which was allegedly providing assistance to the rebels in Canada. On the night of
December 29 1837, while the ship was moored on the U.S. side of the Niagara Falls. The British
claimed that they were acting in self-defence but after some heated exchanges with Secretary of
State, Daniel Webster, the British Government ultimately apologized. Nonetheless, over the
course of diplomatic communications, between the Americans and the British, two criteria for
permissible-preemptive self-defence were articulated: necessity and proportionality. First, the
State seeking to exercise force in self-defence would need to demonstrate necessity. As Webster
explained in a letter to Lord Ashburton, a special British representative to Washington, the State
would have to demonstrate that the "necessity of that self-defence is instant, overwhelming and
leaving no choice of means, and no moment of deliberation".32 In other words, the State would
need to show that the use of force by the other State was imminent and there was essentially
nothing but forcible action that would forestall such attack. Second, the State using force in self-
defence would be obliged to respond in a manner 'proportionate' to the threat offered. In making
the argument to the British, Webster explained that, in order for Canada's action to be
permissible, it would be necessary to prove that " the local authorities of Canada, even supposing
the necessity of the moment authorized them to enter the territories of the United States at all, did
nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must
be limited by that necessity and kept clearly within it".33
Evidently, throughout the pre-UN Charter period, scholars generally held the opinion that
these two criteria set the standard for permissible preemptive action. If a State could demonstrate
necessity- that another State was about to engage in an armed attack - and act proportionately,
anticipatory self-defence would be legal.34
Meanwhile, those (for example Cassese, Delter, Anthony Clark Arend)35 who argue that
the pre-existing customary law on anticipatory self-defence was extinguished by Article 51 are
referred to as restrictionists.36 Restrictionists argue that Article 51 of the UN Charter requires that
an 'armed attack' must have occurred before a State can legally respond in self-defence. The
strengths of this camp emanates from the wordings of Article 51, which explicitly affirms that,
"nothing in this present Charter shall impair the inherent right of individual or collective self-

32
Letter from Mr. Webster to Lord Ashburton, August 6, 1842, cited in Lori F. Damrosch et al.,
International Law: Cases and Materials (2001), p. 923.
33
Letter from Mr. Webster to Mr. Fox, April 24, 1841, cited in Damrosch et al., International Law: Cases
and Materials (2001). The US carried out air raids on Tripoli in 1986 in response to supposed Libyan
involvement in a terrorist attack on a Berlin discotheque a few days before in which two US nationals were
killed and seventy-nine injured, and to try to prevent further attacks. The raid was considered by many
states to be a disproportionate use of force. But, when force is justified, it sometimes means that lives have
to be sacrificed in order to prevent even greater loss of life. The obvious example would have been the
shooting down of the four hijacked airliners before they could carry out their suicide missions in New York
and Washington on 11 September 2001, assuming of course that there had been evidence at the time of
their real intention.
34
Anthony Clark Arend, ‘International Law and Preemptive Use of Military Force’, available at
www.twq/02spring/docs/03spring_arend.pdf on September 20, 2011.
35
Supra n. 30
36
Ibid
defence if an armed attack occurs against a member of the United Nations".37 Of particular
importance is the wordings, 'if an armed attack occurs', which prima facie confirms the
exhaustive nature of Article 51.38
On the other hand, those who support the proposition that the pre-Charter Customary still
operates are referred to as the counter-restrictionists or adaptivists.39 Scholars in this camp argue
strongly against the assertion that Article 51 extinguished the customary law.40 Central to the
reasoning of this school of thought is the term "inherent right" contained in Article 51.
Proponents of this camp suggest that this term is an explicit reference to the customary
International law of the time that provided for anticipatory self-defence as a customary right.41
This rationale is supplemented by two other arguments.42 Firstly, that the phrase "armed attack"
encompasses the planning, organisation and the logistical groundwork for an assault and as such
Article 51 should permit the employment of anticipatory self-defence. They argued that "States
may have the right to defend themselves by using force to pre-empt an imminent and serious
attack- using a football game analogy, the best form of defence would be to take the attack to the
real or imminent aggressor, (even though) such use of force would have to be in accordance
would have to be in accordance with the general rules and principles governing self-defence".43
Secondly, it is contended that even if Article 51 did not expressly permit the use of anticipatory
self-defence, its employment is permissible on the basis that pre-existing customary law survived
the arrival of the United Nations Charter.44 Schwebel, an American Judge of the International
Court of Justice, succinctly outlined the typical stance of the proponents by saying:
I do not agree that the terms or intent of Article 51 eliminate the
right of self-defence under customary International law or
confine its entire scope to the express terms of Article 51.45

To the same effect, Oppenheim states that:

While anticipatory action in self-defence is normally unlawful, it
is not necessarily unlawful in all circumstances, the matter
depending on the facts of the situation including in particular the
seriousness of the threat and the degree to which preemptive
action is really necessary and is the only way of avoiding that
serious threat; the requirements of necessity and proportionality

37
Emphasis added.
38
However, as shall be seen later, the counter-restrictionist perspective emphasises other aspects of Article
51 in support of their thesis. Noteworthy also is that many of the restrictionists advocate the use of other
measures other than force instead of anticipatory self-defence. Such measures include economic sanctions,
and recourse to the Security Council.
39
Martinez, ‘September 11th, Iraq and the Doctrine of Anticipatory Self Defence’ , [2003] 72 UMKC 123
at 134.
40
Proponents of this style of reasoning include Arend and Beck, International Law and the Use of force:
Beyond the U.N. Charter Paradigm (Routledge, London, 1993), Cohan, ‘Formulation of a State's Response
to Terrorism and State Sponsored Terrorism' [2002] 14 PILR 77, Schachter, International Law: 'The Right
to Use Armed Force',(1984) MLR 1620.
41
The advocates of this doctrine argue that the use of the term inherent is an explicit reference to the
customary international law and as such it was the intention of the framers of the United Nations Charter to
permit anticipatory self-defence.
42
Supra n. 39
43
Ibid
44
Ibid
45
Case Concerning Military and Paramilitary Activities in and against Nicaragua(1986) ICJ Rep 347.
 are even more pressing in relation to anticipatory self-defence
than they are in other circumstances.46
In other words, it would be a misreading of the intention of Article 51 to interpret it as forbidding
forcible self-defence in resistance to an illegal use of force not constituting an armed attack.
Another writer argued with regards ‘Post-UN Charter States Practice’:
…international law is created through the consent of states.
Behind this understanding is the assumption that states are
sovereign and, accordingly, can be bound by no higher law
without their consent. As a consequence, states can lawfully do
as they please unless they have consented to a specific rule that
restricts their behavior.47
For this view, the writer relied on the Permanent Court of the International Court of Justice, the
predecessor of the current I.C.J. in the Lotus Case, where the Court noted:
International law governs relations between independent States.
The rules of law binding upon States therefore emanate from
their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and
established in order to regulate relations between these co-
existing independent communities or with a view to the
achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed.48
It is however suggested that these are very weak legal justifications for a right to
anticipatory self-defence, and that they have been crafted to legitimise the proponents’ desire to
have the right accepted at international law. Omoruyi is of the view that “anticipatory attack can
be seen as a form of license to super-power States to wipe out smaller vulnerable states” and asks:
how can one determine the proportionality to an attack that is being anticipated? 49In the same
stream of thought, Brownlie argues that the approach ignores the principle of effectiveness and
asks the important question: Why have treaty provisions at all?50 It is arguable that when referring
to the use of ‘inherent’, that Article 51 claims a declaratory and not a constitutive character.51 Van
den Hole, in addition referring to the drafting history of Article 51, believes that the wording of
the article ‘supports the position that the UN Charter preserves the customary international law
concept of self-defence’.52
This runs contrary to the self-evident fact that the Charter’s intention was to render
unilateral use of force subject to the control of the United Nations.53 Furthermore, within article
51, the Security Council is given a key role, which is that the right of self-defence only exists
‘until the Security Council has taken measures necessary to maintain international peace and
security’. Also, any member state that sought to invoke this right of self-defence must inform the
Security Council of such immediately. This is compelling evidence that Article 51 is constitutive
in nature.

46
Oppenheim’s International law (9th ed), 1991,pp.41-42, quoted in Bazuaye and Enabulele(supra) 2006.
47
Anthony Clark Arend, , ‘International Law and Preemptive Use of Military Force’, supra, 5
48
The S.S. Lotus, Permanent Court of International Justice (1927), P.C.I.J. Ser. A, no.10, reprinted in
Damrosch et al., International Law: Cases and Materials (2001), pp. 68–69.
49
International Law Class Lecture, Barr. I.O. Omoruyi, Lecturer, Department of Jurisprudence and
International Law, Faculty of Law, University of Benin, Benin-City, Edo State. September 21, 2011.
50
Ian Brownlie, International law and The Use of force by States, Oxford, Clarendon Press, 1963, p. 272.
51
Some writers argued that the UN Chater is merely a formal declaration of States’ right of self-defence as
recognized under customary law. Van den Hole, post.
52
Van den Hole, Leo, ‘Anticipatory Self-Defence under International Law’ (2003), American International
Law Review’, 69 at 78.
53
Supra n. 50 at 273
Moreover, the issue that has to be examined is: why the draftsmen of the Article would create a
regime if the article was intended to be merely a declaration of the customary law. The natural
and logical conclusion to be drawn is that a State has a right of self-defence if and only if an
armed attack occurs. To think that the occurrence of an armed attack is only one of the
circumstances in which self-defence can be invoked diminishes the Article 51 regime. It is also
repugnant to the general superiority of treaty law over custom when there is a conflict. A detailed
examination of the relationship between treaty and custom is outside the scope of this article. It is
sufficient to suggest that when a treaty is later than the customary rule, subject to the rule of jus
cogens, the treaty will prevail.54

Anticipatory self-defence as a rule of Jus cogens

An issue that must be examined is that of peremptory norms or rules of jus cogens. These
are rules of an elevated status which cannot be displaced by custom or treaty provision. If
anticipatory self-defence could be classed as a rule of jus cogens, then Article 51 or any
customary rule prohibiting it could not deny it of legally binding character. Article 53 of the
Vienna Convention on the Law of Treaties 196955 declares that a treaty is void if at the time of its
conclusion it conflicts with a peremptory norm of general international law that is, a norm
accepted as being part of a higher form of law. In the Nicaragua Case, the ICJ affirmed jus
cogens as an accepted doctrine in international law and declared that the prohibition on the use of
force was a ‘conspicuous example of a rule of international law having the character of jus
cogens’56. But despite this example of clarity, there is very little agreement as to what rules has
been elevated to this status and the problem is compounded by the lack of examples or criteria in
the Vienna Convention.
The notion that self-defence and, in particular, anticipatory self-defence, is a rule of jus
cogens has been suggested or at least implied by many scholars. Sofaer says that:
Properly applied, pre-emption is an aspect of a state’s legitimate
self defence authority. The power to act in self defence after an
attack is based on the need to prevent further attacks, not on any
right to exact revenge. Therefore, just as pre-emption was to
Grotius the first ground for the ‘just’ war, it is the key
justification for using force in the post-Charter era.57
Sofaer uses language that suggests self-defence and anticipatory self-defence form part of
higher law which has been recognised throughout the ages at least since the time of Hugo
Grotius, (1583-1645), Dutch jurist, humanist, and statesman, whose legal writings laid the
foundations for modern international law. According to Megennis, “the writings of Grotius,
especially, 'De Jure Bellium ad Pacum’ are an efficient focal point for the definition of ‘natural
rights’ in the international law context”.58 However, Sofaer attempts to blur the distinction
between self-defence and anticipatory self-defence by saying they both have the same motive, to
prevent attack; the former to prevent further attack and the latter to prevent attack in the first
place. This, however, must be dismissed as ignoring the clear and practical distinctions between
the two. Self- defence is to be used to repel the attackers and dismiss them from your territory as
opposed to being a means of preventing further attacks. Sofaer’s contention that ‘pre-emption was
to Grotius the first ground for just war’ has to be rejected for being incorrect. Self-defence was

54
Ibid.
55
United Nations: Vienna Convention on the Law of Treaties, Adopted 22 May 1969. Entered into Force on
the 27 January1980.
56
Nicaragua Case, supra, 100.
57
Sofaer, ‘On the Necessity of Pre-Emption’ (2003) European Journal of International Law, 209 at 225.
58
Magenis, S. D., ‘Natural Law as the Customary International Law of Self-Defence’ (2002) 20 Boston
University International Law Journal, 413 at 416.
for Grotius the first ground for just war. Sofaer may be using the term pre-emption to include all
forms of self-defence which must not be supported, as it is disingenuous and serves to hide the
obvious distinction that exists between a state using force to repel an aggressor and a state using
force against another because it suspects an attack. In fact, Grotius makes it clear in ‘On the Law
of War and Peace’ that an attack must have occurred or is imminent, which is the current position
in international law if understood to include the pre-Charter customary international law.
The danger … must be immediate and imminent in point of time.
But those who accept fear of any sort as justifying anticipatory
slaying are themselves greatly deceived… [I]f a man is not
planning an imminent attack, but it has been ascertained that he
has formed a plot, or is preparing an ambuscade, or that he is
putting poison in our way…I maintain that he cannot lawfully be
killed, either if the danger can in any other way be avoided, or if
it is not altogether certain that the danger cannot be otherwise
avoided.59
It is submitted that the conceptually distinct concepts of self-defence and anticipatory
self-defence are conflated. Additionally, within the anticipatory self-defence category, the clear
distinction between an imminent threat and a growing/emerging threat is not maintained. 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. While 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.
While the opinion of the international community seems diverged as to the status of
anticipatory self-defence, it must be acknowledged that there is not a consensus of opinion that
supports the doctrine. As such, it would seem unwise to disregard the arguments of the
restrictionists as they will certainly influence the development of the doctrine.
Preemptive self-defense not only undermines the restraint on when states may use force,
it also undermines the restraints on how states may use force. Today, states measure
proportionality against attacks that have occurred or are planned. What measure can be used to
assess proportionality against a possible attack? The state acting preemptively is making a
subjective determination about future events and will need to make a subjective determination
about how much force is needed for preemption. In order to effect the invasion of Iraq,60 the US
plan calls for massive force to take over the whole country and eliminate its government.
Presumably, most states claiming the right to use force preemptively will cite the Iraqi invasion to
argue they have the right to do the same. Only by eliminating an unfriendly foreign regime
entirely can a state defend itself from all possible future attacks. Even states responding to actual
armed attack could use this precedent to justify disproportionate responses that seek to overthrow
foreign regimes.
Regarding the requirement of necessity, it is maintained that the purpose of self-defence was
limited to repelling an attack in progress. It is in this writer’s view that the principle of necessity
means that only that use of force which is necessary in order to repel an attack constitutes lawful
self-defence and it is submitted that the principle of necessity implied that an action must at least
be appropriate to achieve the purpose of protecting the attacked State. If an armed attack is

59
Grotius, H., De Jure Belli Ac Pacis Libri Tres (Francis W. Lelsey translation, 1925) 173.
60
Available at www.un.org/Depts/unscom/Chronology/chronologyframe.htm. The United States appears to
consider such action to be justified on the basis of the right to carry out a pre-emptive strike in selfdefence,
the right to respond in self-defence against an armed attack, (in this case the attacks on 11 September 2001)
and on the fact of Saddam Hussein’s possession of nuclear weapons in 2003. See generally Luban, David,
‘Preventive War’ , [2004] 32 Philosophy & Public Affairs, 207
terminated, there is no further need to repel it. As Sir Arthur Watts has explained, with
considerable prescience:
Self-defence probably has to be an inherently relative concept –
relative to the times and circumstances in which it is involved.
Self-defence in the days of naval warfare, such as that at
Trafalgar, is a very different thing from self-defence in the days
of nuclear warfare, Exocet missiles, and the possibility of easy
transport to almost any destination in the world of small
packages of anthrax or nerve agents. All the same, there are
limits to the burden which the concept of self-defence can safely,
and legally, be called upon to bear. It is essentially a legal
concept, and its application to any particular circumstances
must be evaluated in accordance with international law. To
stretch the concept to such an extent that it departs from the
ordinary meaning of the term, as refined by judicial
pronouncements, serves not only to undermine this particular
branch of the law, but also to bring the law in general into
disrepute. 61
Thus, self- defence is to be used to repel the attackers and dismiss them from your
territory as opposed to being a means of preventing further attacks. It is limited to an ‘on-the-spot
reaction’, i.e., the necessary, immediate response to an armed attack.

Conclusion
In recent years, the use of force by states has produced a lively, sometimes impassioned,
debate in the United Nations, parliaments, universities and the media. The debate is vigorous
because much is at stake, not least the life of possibly thousands of people, military and civilian.
For any foreign ministry legal adviser, the legality of any proposed use of force is the most
important issue he or she ever has to face. The final decision to use force rests with the executive
or parliament. A state contemplating the use of force needs to be satisfied that it would be lawful,
not merely that a plausible or colourable case could be made to justify it. International law has
been developed to make it possible for states to live together in peace and reasonable harmony.
When a state decides to use force without either clear authorisation from the Security Council or a
firm basis in customary international law, and with serious doubts being expressed by other states
about its legality, it is possible that the policy itself may be wrong. However, it is apparent that
Article 51 of the Charter reserves States’ rights to self-defence. This right is additional to the
provisions of Article 42. A State does not require a Security Council resolution in order to defend
itself by force but even the right of self-defence is subject to action by the Security Council, as is
clear from the terms of Article 51. The Article evidently requires that any use of force in self-
defence must be reported immediately to the Council, and that the state must cease using force
once the Council has taken the measures ‘necessary’ to maintain international peace and security.
Therefore, no State has a right to invade another state because of speculative concerns about that
state's possible future actions. The current international order does not support a special status for
any State or a singular right to exempt itself from the law. To maintain a legal order that restrains
other states and to uphold the rule of law, all States should continue their conservative
commitment to limits on the unilateral use of force, and reject a reckless doctrine of
preemptive/anticipatory self-defense. It is irrefutable that global warfare has changed since 1945,
when the United Nations Charter was drafted. In this regard, American academic Abraham Sofaer
notes that globalisation and advances in technology are facilitating the capacities of terrorists to

61
Sir Arthur Watts, ‘The Importance of International Law’ in Michael Byers (ed.), The Role of Law in
International Politics (Oxford: Oxford University Press, 2000), p. 11.
travel, move money and cause damage with modern weapons.62 While it is generally accepted
that the nature of warfare has changed over the past six decades, it should not be forgotten that
the use of anticipatory self-defence is permissible under the Charter regime where the Security
Council gives its consent. One can reasonably conclude that the anticipatory self-defence doctrine
(without the Security Council’s consent) conflicts with the UN Charter. What Professor Henkin
wrote in 1987,63 remains the case today:
It is not in the interest of the United States to reconstrue the law
of the Charter so as to dilute and confuse its normative
prohibitions. In our decentralized international political system
with primitive institutions and underdeveloped law enforcement
machinery, it is important that Charter norms—which go to the
heart of international order and implicate war and peace in the
nuclear age—be clear, sharp, and comprehensive; as
independent as possible of judgments of degree and of issues of
fact; as invulnerable as can be to self-serving interpretations
and to temptations to conceal, distort, or mischaracterize events.
Extending the meaning of ‘armed attack’ and of ‘self-defense,’
multiplying exceptions to the prohibition on the use of force and
the occasions that would permit military intervention, would
undermine the law of the Charter and the international order
established in the wake of world war.

62
A. Sofaer. ‘On the Necessity of Pre-Emption’, (2003) European Journal of International Law,209
63
Louis Henkin, Use of Force: Law and U.S. Policy, in M. Right: International Law and the Use of Force
(Louis Henkin et al. eds., 1989), 69.