An Appraisal of The Doctrine And Practice of Self-Defence In International Law

An Appraisal of The Doctrine And Practice of Self-Defence In International Law.

ABSTRACT

This dissertation employs the doctrinal method of research to appraise the doctrine of Self defence as one of the fundamental principles of International law, and as one of the exceptions to the prohibition on the use of force.

To this end, this dissertation centers on Article 51 of the United Nations Charter which provides for the right of self defence in International law.

The dissertation contends that the provisions of Article 51 have generated some controversies among scholars of International law.

These controversies have tended to obscure the scope of self defence in International law. The major problem of this research is that it is not clear whether Article 51 has abrogated or preserved the doctrine of anticipatory Self defence in Customary International law.

This problem has been complicated by the use of the phrases ‘inherent right of individual or collective self defence’ and ‘armed attack’ in Article 51.

The question therefore is that ‘does international law expect a State to do nothing where it is a target of an imminent attack’?

The objective of this dissertation therefore is to examine the relationship between Article 51 and rules of customary International Law, and the circumstances in which the right of self defence can be exercised.

The dissertation makes some findings by submitting that the doctrine of preemptive Self defence is contrary to Articles 2(4) and 51 of the Charter which prohibits unilateral use of force.

Furthermore, both Article 51 and customary international law provide different rules for the exercise of the right of self defence .

The writer suggests that there is urgent need for an amendment of Article 51 to bring it in line with current global challenges to global security.

The phrase ‘armed attack’ should be well defined and the concept of collective self defence should be deleted from Article 51.

TABLE OF CONTENTS

Title page – – – – – – – – – –        i
Declaration – – – – – – – – – –    ii
Certification – – – – – – – – – –  iii
Acknowledgement – – – – – –  iv
Abstract – – – – – – – – – –           v
Dedication – – – – – – – – – –      vi
Table of Contents – – – – – – – vii
Table of Abbreviations – – – -xi
Table of Statutes – – – – – – –  xii
Table of Cases – – – – – – – – – xiii
Glossary – – – – – – – – – –        xiv

Chapter One: GENERAL INTRODUCTION

1.1 Background to the Study – – – – – – – 1
1.2 Statement of the Problem – – – – – – 4
1.3 Aim and Objectives – – – – – – – –       7
1.4 Scope of the Study – – – – – – – –         7
1.5 Research Methodology – – – – – – –   8
1.6 Justification – – – – – – – – –                 8
1.7 Literature Review – – – – – – – –          9
1.8 Organizational Layout – – – – – – –  30

Chapter Two: CONCEPTUAL CLARIFICATION

2.1 Introduction – – –    32
2.2 The Meaning and Nature of Self-defence – – –   32
2.3 The Meaning and Nature of War –   35
2.4 The Meaning and Nature of Terrorism – –      38
2.5 The Meaning and Nature of Customary International Law – – – 42
2.6 The Meaning and Nature of Collective Defence – –   45
2.7 The Meaning and Nature of Reprisals – – – –       49
2.8 The Meaning and Nature of Use of Force –   52

Chapter Three: THE DOCTRINE OF SELF-DEFENCE IN INTERNATIONAL LAW

3.1 Introduction –     57
3.2 The Development of the Doctrine of Self-defence –      57
3.2.1 The just war period – –         58
3.2.2 The positivist period – – – –     59
3.2.3 The Kellogg- Briand Pact period    61
3.2.4 The United Nations Charter period – –   63
3.3. Self-defence in Customary International law 64
3.4. Self-defence in the United Nations Charter – –   68
3.4.1 Origin of Article 51 of the United Nations Charter – –      68
3.4.2 Article 51 of the United Nations charter and some multilateral treaties – 70
3.4.3 Interpretations of article 51 of the United Nations Charter – – –                  73
3.5 Relationship between Article 51 of the United Nations Charter and
Customary International Law – – – – –    80
3.6 Self-defence as means of protection – – –        88
3.6.1 The right of territorial integrity – – – –  89
3.6.2 The right of political independence –          92
3.6.3 The right to protection of economic interest – –      94
3.6.4 The right to protection of nationalities abroad     97
3.7 Conditions for the Exercise of Self-defence     101
3.7.1 Immediacy – – – 101
3.7.2 Necessity – – – –    103
3.7.3 Proportionality – – –     106
3.8 New Categories of Self-defence in International Law – –  110
3.8.1 Interceptive self-Defence – – –   110
3.8.2 Anticipatory Self-Defence – – –      112
3.8.3 Preemptive Self –Defence 114

Chapter Four: THE PRACTICE OF STATES ON SELF-DEFENCE IN INTERNATIONAL LAW

4.1 Introduction -118
4.2 Policies of Some States on Self –Defence in International Law – – 119
4.2.1 United States – –    119
4.2.2 Australia – –        136
4.2.3 Russia-138
4.2.4 Japan- –   139
4.2.5 France – 142
4.2.6 China – – -143
4.2.7 United Kingdom – 145
4.2.8 Nigeria –    148
4.2.9 Israel – –       156

Chapter Five: SUMMARY, FINDINGS, AND CONCLUSION

5.1 Introduction – – – – – – – – – 164
5.2 Summary – – – – – – – – –      164
5.3 Findings – – – – – – – – – –     166
5.4 Suggestions- – – – – – – – – -172
Bibliography – – – – – – – – –       177

INTRODUCTION

Background to the Study
The doctrine of self-defence is one of the fundamental principles of International law. The doctrine of self defence is common to all systems of law, and generally, as a legal concept, the function and scope of Self-defence vary with the level of development of each legal system.

Thus, International law which is characterized by lack of specialized machinery for the enforcement of International law and protection of the rights of member states has vested the individual member states the right to use force for the protection of certain essential rights.

However, as International law advances, as its processes of enforcement and protection become more effective, the tendency is to allocate duty of protection to a centralized authority such as the United Nations Security Council, and to restrict the right of unilateral action by individual member states.

However, no matter how effective the means of protection afforded by the centralized authority is, it will be necessary, for the protection of certain essential rights, and interests of the state to invest the states with the right of self defence until the enforcement machinery of the United Nations (UN) comes to their aid.

It is difficult to envisage alegal system in which the prohibition of recourse to force has no exception in the form of the doctrine of self-defence. This is the justification of Self-defence in International law.

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