THE LEGALITY OF ANTICIPATORY SELF-DEFENCE IN THE 21ST CENTURY WORLD ORDER: A RE-APPRAISAL

By Abdul Ghafur Hamid @ Khin Maung Sein Associate Professor Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia

Netherlands International Law Review (NILR) Vol. 54, Issue 3 (2007), 441-190 The Hague, the Netherlands

THE LEGALITY OF ANTICIPATORY SELF-DEFENCE IN THE 21ST CENTURY WORLD ORDER: A RE-APPRAISAL By Abdul Ghafur Hamid
While the overwhelming majority of states do not practice anticipatory self-defence, believing that it would create a dangerous precedent, it is ironic that many writers support the idea. After September 11, there have been louder voices that advocate the legality of anticipatory self-defence. What makes the matter worst is the pronouncement of a preventive style of self-defence in the National Security Strategy of the United States, which goes far beyond the traditional concept of anticipatory self-defence. The old doctrinal debate has resurfaced with stronger vigour. The present paper is an attempt to reappraise the debate and test the legality of anticipatory self-defence. The paper objectively interprets Article 51 of the Charter in light of canons of treaty interpretation and explores customary international law of the time. It reexamines the Caroline formula and affirms that it had not been established as customary international law before September 11 due to lack of widespread and consistent state practice and opinio juris. The paper concludes that although state practice after September 11 tends to condone the use of force against imminent terrorists attacks, Article 51 of the UN Charter is still a good law to cope with the normal inter-state use of force and that despite the flaws of the United Nations, the Charter-based system of world order can very well serve the international community even in the context of the 21st century world order.

1.

INTRODUCTION

The right of self-defence of States is in fact a sacred principle, meant for the protection of countries that are small and weak from the aggression of powerful countries. Nevertheless, what is ironic in the extreme is that throughout the period of over sixty years after 1945, only the Big Powers or militarily strong countries dearly invoked this right of self-defence as justification for their uses of force against other countries.1 To
Abdul Ghafur Hamid & Khin Maung Sein, LL.B., LL.M. in International Law (Yangon), Ph.D. (IIUM), Associate Professor of Law and Member of the WTO and Globalization Unit, International Islamic University Malaysia. 1 The following are the major incidents in which self-defence was claimed: (1) The Anglo-French Invasion of Suez (1956); (2) The Cuban Quarantine (1962); (3) The Vietnam War (1964-1973); (4) The Six Day War (1967); (5) The Entebbe Raid (1976); (6) The Soviet Intervention of Afghanistan (1979); (7) The US rescue mission in Tehran Hostage case (1980); (8) The Iran-Iraq War (1980-1988); (9) The Israeli Destruction of Iraqs Nuclear Reactor (1981); (10) The Falkland Islands War (1982); (11) The US Intervention of Grenada (1983); (12) The Nicaragua Case (1986); (13) The US Air Raid on Libya (1986); (14) The US Intervention of Panama (1989); (15) The Iraqi Invasion of Kuwait (1990); (16) The US Missile Strike on Iraq (1993); (17) The US missiles strikes against Sudan and Afghanistan (1998); (18) The US use of force in Afghanistan (2001); and (19) The US invasion of Iraq (2003). Out of the 19 incidents, the US is the one that most frequently used force and claimed self-defence. Israel ranks second and involved in 4, the UK and Iraq 2 each and the Soviet Union, France, Iran and Argentina 1 each.

3 justify their uses (or rather abuses) of force, the powerful countries invariably referred to Article 51 of the Charter of the United Nations. If we look at the situation before September 11, even though states rarely practiced anticipatory self-defence, believing that it would create a dangerous precedent, many writers supported the idea. On the other hand, there were weighty arguments against such a notion. The opinions of writers at that time were deeply divided. State practice nevertheless was not in favour of such a right to be well established as customary international law of the time. However, after the September 11, there have been louder voices that advocate the legality of anticipatory self-defence. What makes the matter worst is the pronouncement of the doctrine of preventive (according to some writers, preemptive) self-defence articulated in the National Security Strategy of the United States of America, which goes far beyond the traditional concept of anticipatory self-defence. The main objective of the present article is to reappraise the legality under international law of anticipatory self-defence. The article first of all tests the legality of anticipatory self-defence on the basis of the two primary sources of international law: treaty law (the Charter of the United Nations2) and customary international law. It reexamines the Caroline formula and finds that it had not been established as customary international law before September 11 due to lack of widespread state practice and opinio juris. The article concludes that although state practice after September 11 tends to condone the use of force against imminent terrorists attacks, Article 51 of the Charter is still a good law to cope with the normal inter-state use of force and that despite the flaws of the United Nations, the Charter-based system of world order can very well serve the international community even in the context of the 21st century world order. The scope of the present article is limited to the well-established and traditional concept of the right of self-defence of states, i.e., self-defence by a state against the use of force of another state. The article will not examine the issues of whether the right of selfdefence of states can be extended to the situation of attacks by non-state actors (terrorists) and whether a state can attack or invade another state in self-defence on the ground that the latter harbours terrorists

2.

TESTING THE LEGALITY OF ANTICIPATORY SELF-DEFENCE ON THE BASIS OF THE PRIMARY SOURCES OF INTERNATIONAL LAW Clarification of terminology

2.1

Before turning to the discussion of legal issues, it would be more convenient to clarify terminology first. It is to be noted at the outset that there is no consensus as to the use of terminology in this field.3 The widely accepted meaning of the term anticipatory selfdefence is the use of force in self-defence against an imminent attack4 (in accordance
Charter of the United Nations, 1945, 9 International Legislation p. 327, at p. 346. See Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, AlQaida, and Iraq, 4 San Diego Intl L.J. (2003) p. 7, at p. 9. 4 Sean D. Murphy, The Doctrine of Preemptive Self-Defence, 50 Vill L. Rev. (2005) p. 699, at p. 703.
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4 with the Caroline formula). However, since anticipatory self-defence is also preemptive in nature, the two terms are often used interchangeably. What makes the situation more confusing is the pronouncement of the National Security Strategy of the United States of America, which clearly intends to expand the traditional concept of anticipatory self-defence to include the use of force against threats which are not yet imminent or even not yet fully formed.5 Taking the actual words used in the NSS itself, many commentators describe the situation in the NSS as preemptive self-defence (or sometimes Bush doctrine).6 On the other hand, others are of the view that the NSS can best be interpreted as promoting the doctrine of preventive selfdefence7 and the present writer agrees with them. The Secretary-Generals High-Level Panel also uses the term preventive to describe a use of force against a non-imminent threat.8 In a nutshell, there can be only two possible situations that do not fall under the Article 51 requirement of the actual armed attack: an imminent attack and a nonimminent threat. The present writer believes that the term anticipatory self-defence is well established and has been used for a long time to describe the Caroline concept of self-defence against imminent attack and thus it should be maintained in that position.9 And there is no harm to address such a situation as preemptive self-defence. Nevertheless, the only term that can be used to describe a use of force against a nonimminent threat is preventive self-defence (although it is believed that the term selfdefence should not be used for such a preventive war against remote threats). For the purposes of this article, therefore, the term anticipatory self-defence refers to the use of armed force by a State to stop an imminent attack by another State and the term preventive self defence refers to the use of force by a state to prevent another state from pursuing a threat which is not imminent and more remote in time such as is articulated in the National Security Strategy of the US.10 The essence of anticipatory self-defence is the imminence of armed attack by another state. This idea seems to be based on military necessity, according to which the best defence is to attack first and break up the enemy forces before they have time to move. The rationale behind the doctrine of anticipatory self-defence, stressed by all those who advocate it, is a strong meta-legal argument: in an era of nuclear weapons and

White House, The National Security Strategy of the USA, 15 (Sept. 17, 2002), available at http://www.whitehouse.gov/nsc/nss.pdf 6 See, for example, Chris Bordelon, The Illegality of the US Policy of Preemptive Self-Defence under International Law, 9 Chap. L. Rev. (2005) p. 111, at pp. 111-114; Sean D. Murphy 2005, loc. Cit. n. 4, p. 700. 7 Miriam Sapiro, The Shifting Sands of Preemptive Self-Defence, 97 AJIL (2003) p. 599, at 600. 8 The SGs High-Level Panel takes anticipatory self-defence as a comprehensive term which covers the right to act not just preemptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one). See A More Secure World: Our Shared Responsibility, Report of the Secretary-Generals High-Level Panel on Threats, Challenges and Change, United Nations (2004), Part 3, para, 189, available at <http://www.un.org/secureworld>. 9 D.W. Bowett, Self-Defence in International Law (Manchester University Press 1958) pp. 188-92; McDougal, The Soviet-Cuban Quarantine and Self-Defence, 57 AJIL (1963) p. 587. 10 In the present article, the situation in the NSS is described as the Bush doctrine or preventive (preemptive) self-defence in order that there can be no confusion for those who refer to it as preemptive self-defence.

5 sophisticated missile systems, it would be foolish and self-defeating to await the attack by another state. McDougal, a leading advocate of this doctrine, wrote: The conditions of necessity required to be shown by the target State have never been restricted to actual armed attack; imminence of attack has always been regarded as sufficient justification States faced with a perceived danger of immediate attack cannot be expected to await the attack like sitting duck. 11 Advocates of anticipatory self-defence12 appear to have given this non-legal argument a legal foundation by claiming that Article 51, in allowing an inherent right of selfdefence, wished to preserve the pre-existing customary law, which undoubtedly - so they say - allowed for anticipatory self-defence as well. Bowett, for example, advocates anticipatory self-defence in these terms: The history of Article 51 suggests that the article should safeguard the right of self-defence, not restrict it. No State can be expected to await an initial attack which, in the present state of armaments, may well destroy the States capacity for further resistance and so jeopardize its very existence.13

2.2

Methodology

The best way to test the legality of anticipatory self-defence is to examine it in the light of the sources of international law as enshrined in Article 38(1) of the Statute of the International Court of Justice, in particular, the two primary sources of international law, namely, treaty law (the Charter of the United Nations) and customary international law. The relevant provisions of the Charter will be interpreted in accordance with canons of treaty interpretation. When exploring customary international law, the paper will go to the roots and critically examine the Caroline incident, which has been taken for granted by many as classic formulation of anticipatory self-defence. Decisions of the International Court of Justice will also be considered as supplementary means for the determination of law. Juristic writings can hardly help in this respect in view of the wide divides among writers and the differences in the use of methodology.14

M. S. McDougal, loc. cit. n. 9, at p. 597. D. W. Bowett, op. cit. n. 9, at pp. 188-92; McDougal and Reisman, eds., International Law in Contemporary Perspective: The Public Order of the World Community, Cases and Materials (New York, The Foundation Press Inc. 1981) pp. 983-984. See also C. H. M. Waldock, The Regulation of the Use of Force by Individual States in International Law, 81 Hague Recueil (1952 II) p. 451, at p. 496; Schwebel, Aggression, Intervention and Self-Defence, 136 Hague Recueil (1972-II) p. 480. 13 Bowett, op. cit. n. 9, at pp. 188-92. 14 See Sean D. Murphy 2005, loc. Cit. n. 4, at pp. 706-20 (identifying the four different schools on the right of self-defence, namely: the strict constructionist, the imminent threat, the qualitative threat and the Charter-is-dead schools); see ibid. at pp. 721-31 (highlighting the problem of clarifying methodology).
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6 3. ANTICIPATORY SELF-DEFENCE IS CONTRARY TO ARTICLES 2(4) AND 51 OF THE CHARTER AND THUS WITHOUT ANY LEGAL EFFECT

It is not necessary to elaborate the pivotal role of the Charter of the United Nations as the most important multilateral law-making treaty of the present day, binding on 192 member states, that is virtually the entire international community. The Charter, in Article 2(4), enshrines the principle of prohibition of the use of force as the cornerstone of peaceful relations among States: All members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. There are two different views on the interpretation of Article 2(4) of the Charter: the permissive and the restrictive. According to the permissive view, Article 2(4) does not lay down an absolute prohibition on the use of force and States are still permitted to use force in quite a number of situations.15 They argue that a total ban on the use of force would be particularly foolish in an international society that has no police force and no effective machinery for the vindication of rights illegally denied. According to the restrictive view, the Charter brought about a radical alteration in States right to use force, so that Article 2(4) lays down a total ban on the unilateral use of force save only where explicit exceptions are made in the Charter itself. The restrictive school sees the permissive view as favouring powerful States and only encouraging abuse. An analysis of authorities on this point reveals that the overwhelming majority of jurists accept the restrictive view that Article 2(4) of the Charter contains a total prohibition of the use of force.16 State practice also favours this view. Although there have been several examples of the use of force by States in the last 60 years, only Israel after the Entebbe raid has relied primarily on the permissive view of Article 2(4).17 In all other cases, the States resorting to force have relied on alleged exceptions to the general principle (for example, self-defence) rather than interpreting it narrowly.18 We may,
The permissive view is held, for example, by Bowett, op. cit. n. 9, p. 152; Julius Stone, Aggression and World Order (London, Stevens & Sons 1958) p. 43; McDougal , loc. Cit. n. 9, p. 597; See also M. Reisman, Criteria for the Lawful Use of Force in International Law 10 Yale JIL (1985) pp. 279-85. 16 The authorities in support of this view include: H. Lauterpacht, ed., Oppenheims International Law: Dispute, War and Neutrality, Vol. 2, 7th edn. (London, Longman 1965) p. 154; Ian Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press 1963, Reprint 1991) p. 267; Louis Henkin, Force, Intervention and Neutrality in Contemporary International Law, ASIL Proceedings (1963) p. 147; Quincy Wright, US Intervention in Lebanon, 53 AJIL (1959) p. 116; Kunz, Individual and Collective Self-Defence in Article 51 of the Charter of the United Nations, 41 AJIL (1947) p. 877 ; P. C. Jessup, A Modern Law of Nations (New York, Macmillan Co. 1952) pp. 158-162; Y. Dinstein, War, Aggression and Self-Defence, 4th edn. (Cambridge, Cambridge University Press 2005) pp. 182-187; M. Akehurst, A Modern Introduction to International Law, 6th edn. (London, Routledge 1987) p. 262; Jimenez de Arechaga, General Course in Public International Law, 159 Hague Recueil (1978) p. 9 ; D. W. Greig, International Law, 2nd edn. (London, Butterworths 1976) p. 371; L. B. Sohn, Remarks, ASIL Proceedings (1963) p. 171; Roberto Ago, Addendum to the Eighth Report on State Responsibility, Yearbook of the International Law Commission, Vol 2, No. 1 (1980) pp. 66-67; Oscar Schachter, The Right of States to Use Armed Force, 82 Mich L.R. (1984) p. 1620; D.J. Harris, Cases and Materials on International Law, 6th edn. (London, Sweet & Maxwell 2004) pp. 891-893; B. Simma, ed., The Charter of the United Nations: A Commentary, Vol. 1, 2nd edn. (Oxford, Oxford University Press 2002) pp. 135-136; Antonio Cassese, International Law, 2nd edn. (Oxford, Oxford University Press 2005) p. 323. 17 See 15 ILM (1976), 1224. 18 M. Dixon, Textbook on International Law, 5th edn. (Oxford University Press 2005) pp. 294-295.
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7 therefore, conclude that the correct interpretation of Article 2(4) is that any use of force by a State for whatever reason is banned unless explicitly allowed by the Charter and that the Charter allows only two exceptions, namely: (1) the right of self-defence under Article 51; and (2) enforcement action by the Security Council under Chapter VII.19 Prohibition of the use of force is a rule having the character of jus cogens. The International Law Commission in its commentary on the Vienna Convention on the Law of Treaties expressed the view that the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule of international law having the character of jus cogens.20 The Commissions stand was quoted with approval by the International Court of Justice in the Nicaragua case.21 In his Separate Opinion, the President of the Court Judge Nagendra Singh pronounced that the principle of the prohibition of the use of force belongs to the realm of jus cogens.22 Judge Sette-Camara firmly believed that the non-use of force rule is a peremptory norm.23 A rule of jus cogens is a peremptory norm of general international law, a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. Since there can be no derogation from a rule of jus cogens All international treaties24 and rules of customary international law25 that are contrary to a rule of jus cogens are null and void and without any legal effect. The doctrine of anticipatory self-defence, as alleged to be formulated in The Caroline incident, does not fulfill the requirement of an armed attack under Article 51, the only exception (in respect of the unilateral use of force) to Article 2(4) of the Charter. Since anticipatory self-defence is contrary to a rule having the character of jus cogens, it is null and void and without any legal effect.

4.

INTERPRETATION OF ARTICLE 51 IN ACCORDANCE WITH THE CANONS OF TREATY INTERPRETATION

The right of self-defence of states is enshrined in Article 51 of the Charter in these terms: 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-defense shall be immediately reported to the Security Council
Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. 2, The Law of Armed Conflict, (London: Stevens & Sons 1976) p. 51; Oscar Schachter, loc. cit. n. 9, p. 1620; Oppenheims International Law, Vol. 2, op. cit. n. 16, p. 154; Y. Dinstein, op. cit. n. 16, p. 86; M. Dixon, op. cit. n. 18, pp. 294-295. 20 Yearbook of the International Law Commission, Vol. 2, (1966) at p. 247. 21 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. USA) Merits, 1986 ICJ Rep. p. 14, at p. 100 (hereinafter Nicaragua case). 22 Ibid., at p. 153. 23 Ibid., at p. 199. 24 Article 53, Vienna Convention on the Law of Treaties, May 22, 1969, 1155 U.N.T.S. 331 (hereinafter Vienna Convention). 25 Antonio Cassese, op. cit. n. 16, at p. 143.
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8 and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. It is accepted by states as well as publicists that Article 51 of the Charter is the most authoritative statement of the right of self-defence of states. States relying on self-defence always and invariably refer to Article 51. Therefore, the decisive answer to the question of the legality of anticipatory self-defence can be found by perusing the Article carefully and interpreting it in accordance with the canons of treaty interpretation as enshrined in the Vienna Convention on the Law of Treaties, 1969. The Vienna Convention in Articles 31 (1) enunciates the general rule of interpretation: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.26 Together with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and any relevant rules of international law applicable in the relations between the parties shall also be taken into account.27 Article 31(1) contains several elements: First, a treaty must be interpreted in good faith. Secondly, the terms of a treaty are to be given their natural and ordinary meaning because it is reasonable to assume that the ordinary meaning is most likely to reflect what the parties intended.28 Thirdly, the determination of the ordinary meaning cannot be done in the abstract, only in the context29 of the treaty and in the light of its object and purpose. The context for the purpose of the interpretation of a treaty comprises its preamble.30 4.1 A selective construction relying entirely on the term inherent right and ignoring the term if an armed attack occurs

The advocates of anticipatory self-defence primarily rely on the Caroline incident as the classic formulation of the right to use preemptive force and maintain that it represents customary international law on self-defence. What is ironic is that they also invoke Article 51 of the UN Charter with a belief that it would make their stand stronger and more authoritative. However, their problem with Article 51 is that in it there is a very clear phrase if an armed attack occurs, the ordinary meaning of which definitely rejects any anticipatory nature of self-defence. To counter this, they try to rely on the phrase nothing in the present Charter shall impair the inherent right ofself-defence.
Article 31 (1), Vienna Convention. Article 31(3), ibid. 28 See Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 1950 ICJ Rep. p. 8 (Mar. 3). As McNair put it, the task of interpretation is the duty of giving effect to the expressed intention of the parties, that is their intention as expressed in the words used by them in the light of the surrounding circumstances. See McNair, The Law of Treaties (Oxford, Clarendon Press 1961) p. 365. 29 The context is the treaty as a whole, not merely the sub-paragraph, article or section of the treaty in which the unclear term appears, unless the part of the treaty under consideration is self-contained. See Competence of the ILO with respect to the Agricultural Labour, 1922 PCIJ Series B, No. 2, p. 23. 30 Article 31 (2), Vienna Convention.
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9 (1) The first and the primary argument made by the advocates of anticipatory selfdefence is that the term inherent right in Article 51 must be interpreted to mean the preCharter customary law right, which allowed anticipatory self-defence, and that this customary law right must not be impaired by nothing in the present Charter.31 According to Bowett, The travaux preparatoires suggests that the Article should safeguard the right of self-defence, not restrict it. Committee 1/1 stressed in its report that the use of arms in legitimate self-defence remains admitted and unimpaired.32 Unfortunately, however, this argument is seriously flawed. First, travaux preparatoires (drafting history) is merely a supplementary means and relying on it is unwarranted in a situation where the terms of the treaty are clear and unambiguous.33 It is a rule of thumb of the grammatical construction that if an armed attack occurs qualifies the term inherent right. Second, even though we accept the validity of the alleged travaux preparatoires, what it does mean is that States have the inherent right of selfdefence which is of customary law origin and that the Charter does not reject or renounce that inherent right. What the Charter does not impair is the existence of the inherent right of self-defence but not the contents of such a right. The Charter clearly and effectively imposes two important conditions on the right of self-defence of states: a state can exercise the right of self-defence (a) if an armed attack occurs; and (b) until the Security Council has taken measures necessary to maintain international peace and security.34 Third, the argument is based on a selective construction taking only the term inherent right from the entire article, and neglecting and ignoring all the other important words of limitation in the context. Such a selective interpretation obviously lacks good faith because it fails to comply with an important canon of treaty interpretation: to interpret the terms of a treaty in their context. The succeeding phrase if an armed attack occurs very clearly qualifies the preceding phrase the inherent right of self-defence. The phrase if an armed attack occurs is not only an obvious term of Article 51 but also its primary theme. To totally ignore such an important term of a treaty or even to degrade it amounts to a serious infringement of the canons of treaty interpretation. In this respect, Brownlie emphatically writes: ...When the Charter has a specific provision relating to a particular legal category, to assert that this does not restrict the wider ambit of the customary law relating to that category or problem is to go beyond the bounds of logic. Why have treaty provisions at all?35 (2) Secondly, advocates of anticipatory self-defence cite historic arguments, for example, the fact that the term of Article 51 did not appear in the Dumbarton Oaks Proposals and it was added later for the sole purpose of coordinating the security system of the United Nations and the regional organizations.36 It is true that the Article was added for the purpose of coordinating the security systems of the United Nations and of
See McDougal, op. cit. n. 9, p. 597; Schwebel, op. cit. n. 12, p. 480. Bowett, op. cit. n. 9, pp. 185-6, 188-92. 33 See Article 32, Vienna Convention, (providing that preparatory work is only a supplementary means that can be used only when interpretation according to Article 31 leaves the meaning ambiguous or obscure); see also Kunz, loc. cit. n. 16, at p. 873. 34 See for example, Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (New York, Frederick A. Praeger 1950) p. 147. 35 I. Brownlie 1963, op. cit. n. 16, at p. 273. 36 Bowett, op. cit. n. 9, at pp. 182-4; McDougal and Feliciano, Law and Minimum World Public Order (New Haven, Yale University Press 1961) p. 235.
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10 the regional organizations. If it is true we must also accept the original idea expressed by the Latin American States that self-defence can be exercised if there is an armed attack or an act of aggression.37 Furthermore, even though it was added for the purpose of reconciling the security systems of the general organization and the regional organizations, it has, at any rate, become an article of the United Nations Charter and we have to apply and interpret it as a provision of a multilateral law-making treaty. The allegation that the words if an armed attack occurs are redundant or superfluous cannot, therefore, be accepted because it is not in line with the intention of the drafters of the Charter. The link with the Chapultepec Treaty provides a very strong reason for the inclusion of the words if an armed attack occurs.38 It is also significant that the North Atlantic Treaty and similar collective self-defence treaties based on Article 51 provides only for self-defence against armed attacks, and not for defence against imminent danger of armed attacks.39 (3) Thirdly, they maintain that Article 51 only highlights one form of self-defence (namely, response to an armed attack), and that it does not negate other patterns of legitimate action in self-defence granted by customary international law.40 This style of interpretation is unwarranted and clearly contrary to logic. It is also a violation of the maxim of interpretation expressio unius est exclusio alterius. It does not make sense to state the obvious (that self-defence can be exercised if an armed attack occurs) and to omit a reference to the ambiguous circumstance (that self-defence can be exercised in anticipation of an armed attack). Anticipatory self-defence (if lawful under Article 51) would call for more acute regulation by the article than a response to an armed attack because chances for abuse are greater. It would also require closer supervision by the Security Council. (4) Fourthly, they incidentally allege that Article 51 appears to be inept piece of draftsmanship.41 In fact, there is nothing wrong with the draftsmanship. The expression if an armed attack occurs is a very obvious proclamation.42 The drafters of the Charter
See the Declarations of the Latin American States to that effect, 12 UNICO Documents, p. 687. See Oscar Schachter, loc. cit. n. 16, at p. 1634. Article 3 of the Rio Treaty, 1947 provides: The Contracting Parties agree that an armed attack by any State against an American State shall be considered as an armed attack against all the American states and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations. In 1948, the Charter of Bogota came into being, establishing the Organization of American States (OAS). It in effect incorporates the Rio Treaty. Article 3 of the Rio Treaty stands as the collective self-defence provision of the OAS. See Kunz, The Inter-American Treaty of Reciprocal Assistance, 42 AJIL (1948) p. 117. 39 See Article 5 of the North Atlantic Treaty of April 4, 1949, which provides: if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the parties so attacked.. For the text of the treaty, see <http://www.nato.int/docu/basictxt/treaty.htm> (last visited 19-05-07). 40 See Bowett, op. cit. n. 9, at pp. 187-92; Julius Stone, op. cit. n. 15, at p. 44. 41 See McDougal and Feliciano, op. cit. n. 36, p. 234. 42 Hellen Duffy has this to say: The clause if an armed attack occurs was inserted at the initiative of the US delegation at San Francisco Conference. During the debate on Article 51, the US representative made clear that the insertion of such caveat was intentional and sound. We did not want exercised the right of self-defence before an armed attack occurred. And that preparatory acts (such as the fact that a State sends its fleet to attack another state) do not justify use of force in self-defence but only in preparatory acts necessary to be ready in the case an armed attack came. See Hellen Duffy, The War on Terror and the Framework of International Law, (Cambridg University Press 2005) p. 155, n. 53.
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11 were great statesmen of the time and they would not insert a very obvious expression like this without any clear purpose or objective. The leading opinion of scholars is in harmony with this view.43 4.2 Interpretation of Article 51 in good faith in accordance with the ordinary meaning of its terms in their context

The meaning of inherent right: The authoritative interpretation of the term inherent right can be found in the judgment of the International Court of Justice in the Nicaragua case: [T]he Court observes that the United Nations Charter itself refers to preexisting customary international law; this reference to customary international law is contained in the actual text of Article 51, which mentions the inherent right (in the French text droit naturel) of individual and collective self-defence, which nothing in the present Charter shall impair and which applies in the event of an armed attack.44 It is clear that the World Court construed the expression inherent right as a reference to a pre-existing right of a customary nature. We can also rightly infer from the judgment that the expression nothing in the present Charter shall impair means not to impair the fact that States have the inherent right of self-defence, and that it does not refer to the content or the ingredients of the right. The Court refers to the expression if an armed attack occurs as an essential content or ingredient which qualifies the expression the inherent right. This is a sensible interpretation of Article 51, rationalizing the employment of the adjective inherent without ascribing to it far-fetched and unsupportable consequences as claimed by the advocates of anticipatory self-defence. The meaning of if an armed attack occurs: The natural and ordinary meaning of the phrase if an armed attack occurs can be nothing less than restriction of the right of selfdefence to an actual armed attack. An armed attack is an event capable of being perceived and identified as such, and like any other event, occurs when it take[s] place or happen[s] or exist[s]45 and not before. As rightly put by Quigley, the phrase that appears in the four authentic texts of the Charter, other than English, more clearly confirms the meaning that an armed attack must have been commenced or on-going.46 The meaning, therefore, is clear and unambiguous. Most publicists support this view. Kelsen, for example, emphatically states that: The Charter restricts the right of selfdefence by stipulating that the rule applies only against an armed attack, and only as
See Ago, op cit. n. 16, pp. 64-7; Beckett, The North Atlantic Treaty, The Brussels treaty and the Charter of the United Nations (London, Stevens & Sons 1950) p. 13; Kelsen, op. cit. n. 34, pp. 797-8. 44 Nicaragua case, op. cit. n. 19, at p. 94, para. p. 176 (emphasis added). 45 Jonathan Crowther, ed., Oxford Advanced Learners Dictionary of Current English, 5th edn. (Oxford University Press, 1995) p. 800. 46 John Quigley, The Afghanistan War and Self-Defence, 37 Valparaiso Uni. L.R. (2003) p. 541, at p. 544; see also Quincy Wright, The Prevention of Aggression, 50 AJIL (1956) p. 514, at p. 529; Sean Murphy, Terrorism and the Concept of Armed Attack in Article 51 of the UN Charter, 43 Harv. Intl L. J. (2002) p. 41, at p. 44.
43

12 long as the Security Council has not taken the measures necessary to maintain international peace and security.47 According to Jessup, Article 51 of the Charter suggests a further limitation on the right of self-defence: it may be exercised only if an armed attack occurs. This restriction in Article 51 very definitely narrows the freedom of action which States had under traditional international law.48 In connection with Cuban quarantine, Quincy Wright expressed his view: It appears that the Charter intended to limit the traditional right of self-defence by States to actual armed attack self-defence against threats was excluded in Article 51.49 Goodrich, Hambro and Simons, famous commentators of the Charter of the United Nations, made the following comment: The exercise of the right of self-defence is explicitly recognized as legitimate in the case of an armed attack against a Member the restraint shown by the United States government in the Cuban missile crisis, and its use of Article 52 of the Charter to justify quarantine measures instead of invoking the right of self-defence under Article 51, are evidence of recognition of the dangers inherent in relying upon a claim to the right of self-defence going beyond the Charter text.50 Therefore, under the law of the Charter, armed attack is an essential requirement for the exercise of the right of self-defence, that the phrase if an armed attack occurs ordinarily means that there must have been an actual armed attack or an on-going one, and that anticipatory self-defence is contrary to the natural and ordinary meaning of the terms of Article 51. Jurisprudence of the International Court of Justice as to the requirement of armed attack: Although the International Court of Justice has not had before it any concrete case for it to once and for all determine the legality or otherwise of anticipatory selfdefence, in all the four landmark cases involving issues of self-defence (Nicaragua, Oil Platforms, Palestinian Wall, Armed activities in Congo cases) it implicitly affirms the requirement of an armed attack as a pre-requisite for a lawful self-defence. The jurisprudence of the Court appears to be in favour of a right of self-defence in the event of an armed attack and not in favour of the so-called right of anticipatory self-defence. In the Nicaragua case, for example, the Court did not explicitly address the issue of anticipatory self-defence because it found that the parties relied only on the right of selfdefence in the case of an armed attack which had already occurred, and since the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised the Court expresses no view on that issue.51 Nevertheless, the Court very clearly stated, even though obiter, that: In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence of course does not remove the need for this.52 In the same case, the World Court observes: in the language of Article 51 of the United Nations Charter,
47 48

Kelsen,op. cit. n. 34, at p. 497. Jessup, op. cit. n. 16, p. 166. 49 Quincy Wright, loc. cit. n. 16, at p. 560. See to the same effect, Kunz, loc. cit. n. 16,at pp. 876-7. 50 Goodrich, Hambro and Simons, Charter of the United Nations: Commentary and Documents, 3rd rev. edn. (New York, Columbia University press, 1969) p. 345. 51 Nicaragua case, op. cit. n. 19, at p. 103. para 194. 52 Ibid. para. 195 (Italics added).

13 the inherent right (or droit naturel) which any state possesses in the event of an armed attack, covers both collective and individual self-defence.53 In the Case Concerning Oil Platforms (Iran v US) case, the Court ruled that the burden of proof of the facts showing the existence of an armed attack rests on the state justifying its own use of force as self-defence.54 In the advisory opinion on the Palestinian Wall,55 the Court was even stricter in interpreting Article 51 and concluded that Article 51 of the Charter recognizes the existence of an inherent right of self-defence in the case of armed attack by one state against another state.56 This is a recent ruling (made after September 11 terrorist attacks) of the overwhelming majority of the World Court.57 Out of the fourteen concurring judges, all the thirteen Judges of the World Court (that is, excluding Judge Higgins) concur on this point.58 Although Higgins in her Separate Opinion expresses her reservation in this respect,59 the learned judge admitted that this statement of the Court must be regarded as a statement of the law as it now stands.60 The International Court of Justice in the Case Concerning Armed Activities on the Territory of the Congo first referred to Nicaragua case and followed it by stating that since the parties did not raise any issue on the lawfulness of an anticipatory style of selfdefence, the Court was not obliged to give any opinion on that issue.61 The Court nevertheless noted that while Uganda claimed to have acted in self-defence, it did not claim that it had been subjected to an armed attack by the armed forces of the DRC.62 The beginning of an armed attack: It is of major importance to pinpoint the exact moment at which an armed attack begins to take place; this is also the moment when selfdefence measures become legitimate. Indeed, verification of the precise instant at which an armed attack commences is equivalent to an identification of the aggressor and the victim State respectively.

See ibid. at p. 102, para. 193. Case Concerning Oil Platforms (Iran v US), 2003 ICJ Rep. 161 (6 Nov. 2003). 55 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136 (9 July 2004). 56 Ibid. at p. 194, para. 139. But see Separate Opinion of Judge Higgins, para. 33. 57 The judgment was made by 14 votes to 1; In favour: President Shi, Vice-President Ranjeva, Judges Guillaume, Koroma, Vereshchetin, Higgins, Para-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma. Tomka; Against: Judge Buergenthal. 58 Judge Kooijmans agrees with the Judgment and states that the statement (that Article 51 recognizes the existence of an inherent right of self-defence in the case of an armed attack by one state against another state) is undoubtedly correct and that it has been the generally accepted interpretation for more than 50 years. However, the learned judge makes a reservation and states that Resolutions 1268 and 1373 created a new element and that the Court should not by-pass this new element; see Construction of a Wall, above note 36, Separate Opinion of Judge Kooijmans, paras. 35-36. 59 Ibid., Separate Opinion of Judge Higgins, para. 33. 60 Ibid. 61 Case Concerning Armed Activities on the Territory of the Congo (Congo v Uganda), Judgment of the International Court of Justice of 19 December 2005), para. 143. 62 Ibid. para. 146.
54

53

14 The 1974 General Assembly Definition of Aggression refers to the first use of armed force as prima facie evidence of aggression.63 The most elementary example of an armed attack is a full-scale invasion of one country by another. An invasion constitutes the foremost case of aggression enumerated in the 1974 Definition of Aggression.64 When large armed formations of State A cross an international frontier of State B, without the consent of the Government of the latter, they must be deemed to have unleashed an armed attack. On the other hand, a State may resort to force in self-defence even before its territory is penetrated by another State. Since this is the nuclear age, pressing a button or pulling a trigger to launch Inter-Continental Ballistic Missiles (ICBMs), or taking off of bombers with a clear intent to bomb the target state, may be treated as the beginning of an armed attack and the other State can certainly exercise measures of self-defence even before the missiles have hit its territory or the bombers have dropped bombs.65 In this regard, Nagendra Singh correctly writes:

If the provisions of Article 51 are carefully examined, it would appear that what is necessary to invoke the right of self-defence is an armed attack and not the actual, physical violation of the territories of the State As long as it can be proved that the aggressor State with the definite intention of launching an armed attack on a victim State has pulled the trigger and thereby taken the proximate act on its side which is necessary for the commission of the offence of an armed attack, the requirements of Article 51 may be said to have been fulfilled even though physical violation of the territories by the armed forces may as yet have not taken place.66

4.3

The overriding authority of the Security Council

According to the Charter system of maintaining international peace and security, prohibition of the use of force is the general rule whereas self-defence is merely an exception. The right to use of force is centralized and empowered to the Security Council and unilateral use of force by states is strictly prohibited. Self-defence is a narrow
See the first part of Article 2, the General Assembly Resolution on Definition of Aggression, which reads: The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression, GA Res. 3314(29), 1974. 64 See Art. 3(a), the General Assembly Resolution on the Definition of Aggression, which reads: Any of the following acts qualify as an act of aggression: (a) the invasion or attack by the armed forces of a State of the territory of another State, ibid. 65 Dinstein is of the view that the imminence of an armed attack (provided that it is no longer a mere threat) does indeed justify an early response by way of interceptive self-defence. He goes on to say that interceptive self-defence is lawful, even under Article 51 of the Charter, for it takes place after the other side has committed itself to an armed attack in an ostensibly irrevocable way. Whereas a preventive strike anticipates a latent armed attack that is merely foreseeable (or even just conceivable), an interceptive strike counters an armed attack which is in progress, even if it still is incipient: the blow is imminent and practically unavoidable. See Dinstein, op. cit. n. 16, pp. 182, 191. 66 Nagendra Singh, The Right of Self-Defence in Relation to the Use of Nuclear Weapons, 5 Indian YBIL (1956) p. 3.
63

15 exception that can be exercised only in a compelling and emergency situation. The natural and ordinary meaning of Article 51 clearly demonstrates that it allows the right of self-defence only until the Security Council acts. If indeed there is time for an approach to the Security Council, there is no need to use force unilaterally, and hence no right to use force in self-defence. The so-called right of anticipatory self-defence is built upon the notion that a state at its own discretion can determine that it is in danger of attack by another state and use force in self-defence. As the attack has not yet commenced or materialized, the decision to use force could be extremely subjective and open to abuse and fabrication. In fact, according to the Charter, if a situation is merely likely to endanger international peace and security, states have to rely on peaceful means only67 or seek the assistance of the Security Council.68 Only the Security Council has the authority to determine whether there is a threat69 and if a state unilaterally decides that there is an imminent threat and uses force, it is a usurpation of the authority of the Security Council and violates Article 51 as well as other important provisions of the Charter. 4.4 Interpretation of Article 51 in the context of the Charter and in the light of its object and purpose

According to the general rule of interpretation, an interpretation of a provision of a treaty is to be made in its context in the light of the object and purpose of the treaty. In terms of Article 51, in its context means (i) to interpret the article not selectively but comprehensively taking into consideration whatever is written in the article itself; and (ii) to interpret the article in the context of the entire Charter including its Preamble. Therefore, a good faith interpretation of Article 51 must include a comprehensive construction of the entire article plus the construction of other relevant and important provisions of the Charter like the Preamble, Articles 1(1), 2(3) and (4), 24, and the entire Chapter VII of the Charter in which Article 51 itself includes. Relevant in the context is the Preamble of the Charter in which member states (1) determine to save succeeding generations from the scourge of war, and (2) ensure that armed force shall not be used save in common interest. In Article 1(1), the Charter proclaims its dominant purpose as: to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. Whenever there is a dispute or differences between states, their primary and overriding obligation under Article 2(3) of the Charter is to settle it by peaceful means in such a manner that international peace and security, and justice, are not endangered. The Charter affirmatively requires UN members to rely on alternatives to force to resolve their disputes, and suggests a number of peaceful means by which this obligation may be discharged.70 The most crucial factor in the context of the Charter is Article 51s interaction with Article 2(4), which prohibits the use of force. The right of self-defence as laid down in
67 68 69 70

Article 33, Charter of the United Nations. Articles 35, 37 (1), ibid Articles 34, 37 (2), and 39, ibid. Article 33, ibid.

16 Article 51 is merely an exception to the general prohibition on the use of force, which is regarded as a rule having the character of jus cogens. Furthermore, under Chapter VII of the Charter, the Security Council is entrusted with the authority to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to decide what enforcement measures should be taken.71 If there is a situation that may likely to endanger peace and security, a state has no right to use force but to settle it by peaceful means, including submitting it to the Security Council.72 Due to this overriding authority of the Security Council, Article 51 limits the right of selfdefence to an armed attack which is a specie of aggression but a more severe type. Only when there is an armed attack or a severe type of aggression by another state, the victim state may use force in self-defence. Even then that state must immediately report the situation to the Security Council and once the Council has taken measures, the victim state must cease its use of force.73 Anticipatory self-defence is simply not consistent with this Charter system of maintaining international peace and security, according to which a state cannot use force in anticipation of a future attack (even though it may be imminent) and a state facing with a threat or danger of attack has still the obligation to use alternatives to force and seek the assistance of the Security Council to take measures against the potential aggressor. Therefore, the central theme of the entire UN Charter system is to avoid war, maintain peace, give the highest value to collective measures under the authority of the Security Council to remove threats to the peace and acts of aggression, and keep unilateral use of force by states to a minimum. It is crystal clear that according to the Charter scheme the right of self-defence or unilateral use of force is a narrow exception to the general prohibition of the use of force and should be construed and applied narrowly within strict limitations and restrictions. Therefore, the final conclusion is that anticipatory self-defence is entirely contrary to the concept of self-defence as enshrined in the UN Charter and in the light of its object and purpose. 4.5 Subsequent practice in the application of Article 51

According to Article 31 (3) of the Vienna Convention, together with the context, account shall be taken of any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. Subsequent practice of the parties is a very important element in treaty interpretation74 and reference to practice is well established in the jurisprudence of international tribunals.75 However precise the text appears to be the way in which it is actually applied by the parties is usually a good indication of what they understand it to mean, provided the practice is consistent, and is common to, or accepted by, all the parties.76
Article 39, ibid. Chapter VI, ibid. 73 Article 51, ibid. 74 See J. Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points, 33 BYIL (1957) p. 203, at p. 210. 75 The International Court of Justice, in the Competence of the ILO with respect to Agricultural Labour case, (1922) PCIJ Series B, No. 2, 39-40, stated that: If there were any ambiguity, the Court might, for the purpose of arriving at the true meaning, consider the action which has been taken under the treaty. 76 See, for example, US-France Air Services Arbitration 54 ILR (1963) p. 303.
72 71

17 The background history of Article 51 indicates that the phrase if an armed attack occurs, reflects the State practice of the time, that is, it represents the widespread practice of States by the year 1945.77 Although the requirement of an armed attack may not arguably be consistent with the old customary law (the so-called Caroline formula) it is in accord with the existing State practice; in other words, it is in line with the customary law of the time. A number of General Assembly Declarations and Resolutions on the use of force by States and the contemporary State practice based on these authoritative instruments can very well lead to the development of customary international law on the use of force as well as self-defence. The 1970 General Assembly Declaration on Principles of International Law has been regarded as an authoritative interpretation of the principles enshrined in Article 2 of the Charter. As far as the use of force is concerned, the Declaration proclaims that Every state has the duty to refrain from the threat or use of force to violate the existing international boundaries of another state or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. A war of aggression constitutes a crime against the peace, for which there is responsibility under international law.78 It is difficult to reconcile a system in which all parties earnestly endeavor to peacefully settle a dispute with the unilateral use of force in anticipation of a mere threat of attack by another disputant. Further, anticipatory self-defence clearly runs counter to the General Assembly Resolution on the Definition of Aggression, which provides that the first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression.79 In respect of the actual practice of states, advocates of anticipatory self-defence normally refer to the three incidents as precedents of preemptive use of force: the Cuban Quarantine, the Six Day War, and the Israeli bombing of Iraqi nuclear reactor. These will be examined in detail when analyzing customary international law on this issue. A brief analysis for the time being is that only in the last incident, the responsible state officially invoked anticipatory self-defence. However, even in that incident, the responsible state was unanimously condemned by the Security Council for the destruction of the reactor as a blatant violation of the Charter of the United Nations and international norms. The conclusion, therefore, is that very few states invoked anticipatory self-defence in interstate uses of force after 1945 and that post-UN Charter state practice has never supported such a claim of self-defence which is wider than the armed attack requirement of the UN Charter. 4.6 Any relevant rules of international law: customary principles of necessity and proportionality

Article 31(3)(c) of the Vienna Convention provides for any relevant rules of international law applicable in relations between the parties to be taken into account,
Roberto Ago firmly maintains that the principles that were current in general international law at the time when the Charter was drafted in no way differed, as to substance, from those laid down in Article 51; see Ago, op. cit. n. 16, p. 66. 78 Ibid. 79 Definition of Aggression, GA Res. 3314 (XXIX), Art. 2, UN Doc. A/3314 (Dec. 14, 1974).
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18 together with the context. necessity and proportionality are the essential elements of a lawful self-defence as required by customary international law.80 The concept of necessity limits the use of force to situations in which forcible measures are necessary to respond to the armed attack81 or to otherwise repel aggression. Peaceful alternatives must not have been available to the state invoking self-defence. The proportionality requirement, on the other hand, limits the amount and scope of the force that may be used to fulfill the need to defend. The force used in self-defence must be proportionate to the offence in its extent, manner and goal. The defence must not be unreasonable or excessive. These customary doctrines cannot properly be applied when anticipatory force is used.82 Determinations of necessity and proportionality after all, are dependent on the facts of the particular case. The facts of a case cannot be meaningfully analyzed before they actually exist; an analysis before that time is merely speculation. Thus, one who engages in anticipatory self-defence may thwart the application of these rules because the need for force and the necessary amount cannot be ascertained.83

5.

REAPPRAISAL OF THE CAROLINE INCIDENT AND CUSTOMARY INTERNATIONAL LAW BEFORE SEPTEMBER 11

Many writers are of the view that the Caroline incident84 is a classic precedent of anticipatory self-defence and a rule of customary international law has been formed through subsequent State practice. However, a close and careful analysis of the incident reveals that there are some misconceptions, which do not reflect the correct understanding of it. It is submitted that too much emphasis has been given to the incident as a precedent of anticipatory self-defence between states, which is not actually the case. 5.1 The Caroline incident: not a precedent for anticipatory self-defence for interstate use of force

The incident arose out of the Canadian Rebellion of 1837 against the British colonial rule. Sympathetic American volunteers on the New York side of the Niagara River joined with the Canadian insurgents. On December 13, armed American nationals invaded and seized Navy Island in Upper Canada in violation of British sovereignty. The leader of the American insurgents established a provisional revolutionary government there for the purpose of overthrowing British rule. The Americans repeatedly fired on British ships passing the island from December 13 through December 29. Within a few days, additional supplies and more American insurgents were ferried to the island on board ships, including the Caroline, a steamer flying a US flag. Eventually, over 1,000 wellarmed Americans were encamped on British territory. Although the US Government
80 81 82 83 84

Nicaragua case, op. cit. n. 19, at p. 103. Ibid. Brownlie, op. cit. n. 16, p. 257. Ibid., p. 259. 29 British and Foreign States Papers, pp. 1137-1138.

19 assigned the US Marshall to take control of the situation, he was unable to prevent the continuing armed attack on British territory and navy vessels. On December 29, 1837, insurgents camped on the US side of the Niagara River fired at British troops stationed on the Canadian side. That same day the Caroline landed at Navy Island with additional men and supplies including a large cannon and ammunition. That night, in response to the armed invasion and occupation of British territory, the repeated attacks by US insurgents stationed on both sides of the River, and the ongoing shipments of armed men and ammunition from the US to Canada, British troops boarded the Caroline while it was moored on the US side of the River. The British burned the vessel and sent her over Niagara Falls.85 In response to this incident, the US Secretary of State Webster complained to the British Foreign Secretary, who sent Lord Ashburton to Washington as a Minister Plenipotentiary with instructions to resolve the dispute. On July 27, 1842, Webster sent a note to Lord Ashburton, also enclosing a copy of the letter of April 24, 1841, which had originally addressed to Fox, stating that: It will be for [Her Majestys] Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that local authorities of Canada, did nothing unreasonable or excessive; since the act justified by the necessity of selfdefence, must be limited by that necessity, and kept clearly within it.86 Many writes regard the Caroline incident as a precedent for the right of anticipatory self-defence.87 However, if we examine carefully the facts of the case, the American rebels had established themselves on Navy Island in Canadian waters from which they raided the Canadian shore and attacked passing British ships. The Caroline was engaged in ferrying recruits, supplies and arms to the rebels. It is clear that the rebels had already attacked the Canadian shore and passing British ships quite a number of times. Only after that the British force from Canada attacked the Caroline and destroyed it. It was obviously intended to cut the blood vein of the rebels by destroying the supporting ship. Although it can be argued that the act was intended to prevent further attacks from the rebels, the Caroline incident cannot, taking into consideration previous immediate attacks by the rebels against the British and occupation of the British territory, be said as a genuine case of anticipatory self-defence.88 Furthermore, it is interesting to note that the Caroline incident was not that of armed hostilities between two sovereign States. It was just an incident of an armed band (rebels) attacking the territory of a State, relying on the support from the territory of another State, and the former State intruding the territory of the latter, to attack the ship that was supporting the rebels. The Caroline incident can hardly be classified as a precedent
See R.Y. Jennings, The Caroline and McLeod Cases, 32 AJIL (1938) p. 82, at pp. 82-84. 29 British and Foreign States Papers, p. 1129. 87 See, for example, Bowett, op. cit. n. 9, pp. 108-9; Schwebel, loc. cit. n. 12, pp. 479-81. 88 See Dinstein, op. cit. n. 16, at p. 184 (stressing that reliance on the Caroline incident in the context of anticipatory self-defence is misplaced and that there was nothing anticipatory about the British action against the Caroline).
86 85

20 indicating the exercise of the right of self-defence of a State against an attack or imminent attack by another State, inasmuch as in that incident there was neither actual use of force nor even a threat of force against the British by the United States.89 Therefore, it is against logic to take the Caroline incident as a precedent of the right of anticipatory self-defence of one sovereign state against another on the ground of imminence of attack by the latter.90 This analysis clearly demonstrates that the significance of the Caroline incident, and of the statement of principle of the United States Secretary of State Webster, has been widely exaggerated.91 Since there had been no other formulation or definition of the right of self-defence throughout the years, it is not surprising that the Caroline incident was raised to be a classic formulation of customary law. The striking words: instant, overwhelming, having no choice of means, and no moment for deliberation, borrowed from American criminal law, perhaps attracted the writers who were searching for a convincing explanation of the right of self-defence under international law. This is the reason why Jimenez de Arechega rightly put: The so-called customary law of self-defence supposedly pre-existing the Charter simply did not exist. Before 1945, self-defence was not a legal concept but merely a political excuse for the use of force. For the concept of legitimate defence to come into existence, it is necessary that a corresponding notion of illegitimate use of force already exists. It is only with the United Nations Charter that the prohibition of force and consequently the legitimacy of self-defence become established as symmetrical legal concepts. It follows that to exercise self-defence legitimately, a State must comply with all the requirements established in Article 51 of the Charter and not with some loose conditions mentioned in a diplomatic incident between the United States and the United Kingdom some 140 years ago; as was the case of the Caroline.92 From the foregoing analysis, the following conclusions can be drawn: (1) At the time of the Caroline incident (that is 1837), there were no definitive legal rules justifying the use of force and states were using various terms like necessity, selfpreservation or self-defence as nothing more than political excuses. At that time use of force was not yet prohibited by international law. A state had a right to use force against another state for whatever reason and for no reason at all.
Roberto Ago emphatically affirmed that: The writers mostly from the English-speaking world, speak of self-defence to indicate an act that is designed to ward off a danger, a threat emanating, in many cases, not from the State against which the act is directed but from individuals or groups that are private. This school of thought treats as a typical example of self-defence the celebrated case of the steamer Caroline... No distinction is drawn as to the fundamental issue whether the threat comes from the foreign State itself, or from mere private individuals, or even insurgents. See Ago, loc. cit. n. 16, p. 61, n. 253. 90 Dinstein, op. cit. n. 16, at p. 185, states that The question was not whether Britain had a right to go to war against the US in the exercise of self-defence (since any state then had a right to go to war against another state for any reason). The question, rather, was whether Britain could use forcible measures of selfdefence within US territory without plunging into war. 91 See Grieg, op. cit. n. 16, p. 884. 92 Jimenez de Arechega, loc. cit. n. 16, p. 9.
89

21 (2) As armed attacks by the rebels against the British had already been in progress, and the rebels occupation of the British territory also amounted to an on-going armed attack, the inference that the Caroline incident is a classic precedent for the anticipatory self-defence is fundamentally flawed. (3) In the Caroline incident, the attacks were made by the rebels (private individuals) against the British. There were no attacks by the US as a sovereign state against Britain, another sovereign state. Therefore, the most that can be inferred from the Caroline incident is that a State can use preventive force against an armed band or rebels.93 The incident by no means can be treated as a precedent which allows a right of anticipatory self-defence by one sovereign state against another. (4) Even if one accepted that the Caroline incident actually formulated the right of anticipatory self-defence between sovereign states, it would merely be a practice between two states, the US and Britain (merely an Anglo-American practice). To be established as a rule of general customary international law, it must be supported by subsequent widespread and consistent state practice accompanied by opinio juris. (5) The burden of proving widespread and consistent state practice and opinio juris in support of the right of anticipatory self-defence lies on those who advocate it. 5.2 Doubtful status of anticipatory self-defence as customary law even before the UN Charter

It has been established beyond reasonable doubt that the Caroline incident cannot be a precedent of anticipatory self-defence between sovereign states. Still the permissive school regards it as the classic formulation of anticipatory self-defence. It is generally assumed by them that the customary law of the 19thcentury, as evidenced by the Caroline incident, permitted anticipatory action in face of imminent danger.94 Brownlie, however, had made a thorough and almost exhaustive research of state practice of the time and concluded that the advocates of anticipatory self-defence ignore the possibility that the customary right may have received some more precise delimitation in the period between 1920 and 1945.95 According to the learned writer, contrary to the Caroline formula, the State practice in the period between 1920 and 1939 indicated that self-defence was mainly a resistance to an act of aggression which was defined as an invasion or an attack by armed forces.96 During the Second World War, Germany attacked the Soviet Union. The defence counsel argued before the Nuremberg Tribunal that the German attack on the Soviet Union had merely anticipated a Soviet attack.97 The Tribunal would seem to have implicitly accepted the legality of anticipatory action since it dismissed this argument in relation to the facts.98 The Tokyo Tribunal considered a similar argument. The
Anticipatory action was taken on several occasions against armed bands operating from neighbouring territory; see Brownlie, The Use of Force in Self-Defence, 37 BYIL, (1961) p. 226. 94 Bowett, op. cit. n. 9, pp. 31, 58, 256, 269; Waldock, loc. cit. n. 12, at p. 463; Julius Stone, Legal Control of International Conflicts (London, Stevens & Sons, 1954) p. 244. 95 Brownlie 1963, op. cit. n. 16, p. 274. 96 Ibid. Brownlie believed that the State practice at that time was clearly reflected by the Convention for the Definition of Aggression of 1933, the Balkan Entente of 1934, and the Saadabad Pact of 1937. 97 Trial of Major German War criminals, (Her Majestys Stationery Office), Part 18, p. 160. 98 Nuremberg Judgment, United Kingdom, Command Papers, 6964, p. 35.
93

22 Netherlands had declared war on Japan on 8 December 1941, before any attack had occurred against the Netherlands East Indies. However, Japan had, as a matter of fact, laid plans to attack the Netherlands East Indies on that date; it had made its war aims, including the seizure of those territories, known and which had been decided upon at the Imperial Conference of 5 November 1941.99 As a result the Tribunal rejected the view that the Netherlands action was unlawful and held that the declaration could not change the war from a war of aggression on the part of Japan into something other than that.100 An important point to be highlighted here is that although the Nuremberg and the Tokyo Tribunals were established after the Second World War, the applicable law was not the Charter of the United Nations. In accordance with the inter-temporal rule, they essentially applied the Kellogg-Briand Pact and the pre-UN Charter customary law as the existing law at the time of the Second World War. It is clear that both Tribunals just accepted the Caroline formula as customary law, without taking into account subsequent State practice. In any event, we can conclude that with the possible exception of Netherlands action against Japan in 1941, state practice in the period between 1920 and 1945 contained few instances of anticipatory action in self-defence. It generally restricted the legitimate right of self-defence to an armed attack or an act of aggression.101 Therefore it is not true to say that the right of anticipatory self-defence was established as customary international law before the UN Charter. 5.3 Anticipatory self-defence, even if accepted as pre-Charter customary law, could not survive the UN Charter

The use of force is prohibited by Article 2(4) of the Charter of the United Nations as one of its fundamental principles. This prohibition of the use of force is universally accepted as a rule of jus cogens, a peremptory norm of general international law from which no derogation is permitted. Any treaty or customary law that is contrary to a rule of jus cogens is null and void and without any legal effect. By virtue of the prohibition made by a rule having the character of jus cogens, all the so-called pre-Charter customary rights, such as, anticipatory self-defence, right to use force to rescue nationals abroad, have become null and void. Under the UN Charter, all uses of force are unlawful and prohibited, apart from the two exceptions expressly allowed in the Charter itself: self-defence and enforcement action.102 As far as the right of self-defence of states is concerned, the Charter emphatically and vividly provides in Article 51 that it is to be exercised if an armed attack occurs against a Member of the United Nations. This provision has, it is submitted, once and for all abolished the possibility of preventative action in selfPeter Malanczuk, ed., Akehursts Modern Introduction to International Law, 7th rev. edn. (London, Routledge 1997) p. 314. 100 Judgment of the International Military Tribunal for the Far-East (Tokyo, 1948) pp. 994-995. 101 The background history of Article 51 indicates that the phrase if an armed attack occurs, reflects the State practice of the time, that is, it represents the widespread practice of States by the year 1945. Roberto Ago firmly maintains that the principles that were current in general international law at the time when the Charter was drafted in no way differed, as to substance, from those laid down in Article 51; see Ago, op. cit. n. 16, p. 66. 102 See the authorities referred to in op. cit. n, 19.
99

23 defence. Actual armed attack is an essential requirement for legitimate self-defence under the law of the Charter. It can, therefore, be concluded that the so-called right of anticipatory self-defence, even if accepted as pre-Charter customary law, could not survive the Charter and have been abolished once and for all with the entry into force of the Charter. 5.4 No widespread and consistent state practice and opinio juris in support of anticipatory self defence before September 11

It has already been proven beyond reasonable doubt that the so-called right of anticipatory self-defence, alleged to have established in the Caroline incident, was not supported by subsequent state practice so as to become a rule of customary international law, that even though it represented pre- Charter customary international law it could not survive the UN Charter, and that since it is contrary to Article 2(4) (a rule prohibiting the use of force and having the character of jus cogens) and Article 51 (the authoritative statement of the Charter requiring an armed attack for a lawful self-defence), it is null and void and without any legal effect. The final question that needs to be tackled here is whether the contemporary state practice (that is state practice after 1945), accompanied by opinio juris, makes anticipatory self-defence the customary law of the time, as claimed by its advocates. Article 38 (1)(b) of the Statute of the International Court of Justice refers to international custom, as evidence of a general practice accepted as law. This provision makes it clear that there are two essential elements of international custom: (1) State practice; and (2) opinio juris.103 With this in mind, let us now examine state practice and opinio juris after the entry into force of the UN Charter. Some writers argue that there were very few incidents invoking the right of anticipatory self-defence by states because situations to exercise such a practice very rarely occurred. This is not actually the case. After 1945 until now, there were numerous cases of border clashes and trans-border cross-firings between neighbouring countries, and troops maneuvers and suspicious preparations of arms and weapons systems throughout the world. If states believed that anticipatory self-defence were allowed by international law, they would definitely have used this legal justification to attack rival countries and there would have been a number of incidents of anticipatory self-defence. The truth is that (although some writers are arguing very enthusiastically for such a dangerous excuse to go to war) states actually believe that the law is Article 51 of the UN Charter which very clearly prohibits anticipatory form of self-defence and that according to this law whoever attacks first will be the aggressor. Fear of creating a dangerous precedent is the main reason why States seldom invoke anticipatory self-defence in practice. Advocates of anticipatory self-defence normally refer to the three incidents (Cuban missile crisis, the Six day War and the Israel destruction of Iraqs nuclear reactor) and claim that they are incidents justifying anticipatory self-defence and by virtue of these

North Sea Continental Shelf cases (FRG v Denmark) (FRG v Netherlands), 1969 ICJ Rep. p. 3; Continental Shelf (Libya v Malta), 1985 ICJ Rep. p. 29.

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24 (only three) incidents the notion has become established as customary international law.104 With respect, it is submitted that this is not the case. (1) Cuban missile crisis: The United States imposed a quarantine on Cuba in 1962 during the Cuban missiles crisis. Some writers say that this is a good precedent of an anticipatory self-defence.105 It is not correct. Even the Government of the United States did not officially invoke anticipatory self-defence to justify the quarantine. The US Deputy Legal Advisor justified the US action as a measure adopted by a regional organization (OAS) under Article 52 of the Charter.106 It is clear that The US Government itself at that time did not appear to believe that anticipatory self-defence was legal. Further, they knew very well that it would have created a precedent which the Soviet Union could have used against United States missile sites in Europe; indeed on the same reasoning, virtually every State in the world could have claimed to be threatened by a build-up of arms in a neighbouring State and could have resorted to preventive war. (2) The Six-Day War: The writers who support the right of anticipatory self-defence regard the attack by Israel of the United Arab Republic in June 1967 as an instance of anticipatory self-defence. They pointed out that in that incident Israel appeared initially to have attacked Egypt and that the United Nations rejected both in the Security Council and the General Assembly, the most vigorous efforts to condemn Israel as the aggressor, in circumstances which suggest that many Members saw Israels action as an exercise of legitimate, anticipatory self-defence.107 However, it is submitted that the above view is not correct. The reluctance of the Security Council and the General Assembly to condemn Israel as an aggressor in this war108 can never be construed as acknowledging the right of anticipatory self-defence. It was due to a false and fabricated story told by Israel to the Security Council and the overwhelming propagation of the media. In reality, the Six Day War can be seen as a well-arranged strategy of Israel that systematically planned not only to wage an aggressive war but also to make a false and fabricated story to the United Nations as well as to the whole of the international community.109 The facts are well established. Israel started the aggressive war on the early morning of 5 June 1967, with waves and waves of Israeli bombers destroying Egyptian airfields and almost the entire Egyptian air force on the ground. Then within half an hour of the beginning of the Israeli air-strikes, Israeli ground forces launched a massive offensive against Egyptian positions in the Gaza Strip and the Sinai Peninsular and reached the eastern bank of the Suez Canal. Concurrently with her attack on Egypt, Israel fabricated a charge of aggression against her victim and her Permanent
See generally T. M. Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press 2002) pp. 99-107; Christine Gray, International law and the Use of Force (Oxford: Oxford University Press 2000) pp. 112-115. 105 See McDougal, loc. Cit. n. 9, pp. 597-604. 106 See Harris, op. cit. n. 16, p. 930. For a detailed analysis of the Cuban quarantine, see Quincy Wright, The Cuban Quarantine, 57 AJIL (1963) p. 546, at pp. 560-562. 107 See for example, Schewebel, loc. Cit. n. 12, at p. 481; see also, Greig, op. cit. n. 16, p. 893. 108 4 United Nations Chronicle, July 1967, p. 3, at p. 8. 109 See Henry Cattan, Palestien and International Law: The Legal Aspect of the Arab-Israeli Conflict, 2nd edn. (London, Longman, 1976) pp. 167-169.
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25 Representative at the United Nations Headquarters presented it in a dramatic manner to the Security Council110. The following are the details of the statement of the Permanent Representative of Israel made before the Security Council in the morning of 5 June 1967: In the early hours of this morning, Egyptian armored columns moved in an offensive thrust against Israels borders. At the same time Egyptian planes took off from airfields in Sinai and struck out towards Israel. Egyptian artillery in the Gaza Strip shelled the Israel villages. Netania and Kefar Javetz have also been bombed. Israeli forces engaged the Egyptians in the air and on land and fighting is still going on. In accordance with Article 51 of the Charter, I bring this development to the immediate attention of the Security Council.111 On the following day, Abba Eban, Israels Foreign Minister repeated this fabricated story to the Security Council. Most radio stations and newspapers spread the fabricated story of an Egyptian aggression against Israel and the whole world sympathized with the supposed victim. When the war was over in six days, after defeating the Egyptian, Syrian and Jordanian armies and occupying the Old City of Jerusalem, the West Bank, the Gaza Strip, the Sinai Peninsular and the Golan Heights, the Israeli Representative at the Security Council Meeting declared triumphantly that in accordance with its right under Article 51 of the Charter, the victim defended itself, alone and successfully.112 Therefore, the official justification of Israel for the Six Day War before the United Nations organs was not that it acted in anticipatory self-defence, but that Egypt was the aggressor and Israel was the victim. Only after some time, when the false story of accusing aggression against the victim had become discredited, Israel changed her tactics. Nowadays the Israelis rely on the argument that, although not attacked by Egypt, they were in danger of being attacked, and hence they resorted to a pre-emptive strike. For these reasons, the failure of the United Nations organs to condemn Israel in the Six Day War by no means implied the acknowledgment of the international community of the legality of anticipatory self-defence. The Six Day War can never be a precedent of anticipatory self-defence. (3) Israeli Destruction of Iraqs Nuclear Reactor (1981): On 7 June 1981, Israeli warplanes raided Baghdad and destroyed the Iraq nuclear reactor, which was built for peaceful use of nuclear energy under strict IAEA supervision. Israel claimed that it was exercising its inherent right of self-defence as understood in general international law and as preserved in Article 51 of the United Nations Charter.113 Nevertheless, the Security Council unanimously decided against Israel and strongly condemned the military attack as a clear violation of the Charter of the United Nations and the norms of international conduct:114 A large number of States from all parts of the world affirmed that such a preemptive strike was contrary to international law.115
110 111 112 113 114 115

UN Document S/PV 1347, 5 June 1967, 4. Ibid.; 4 United Nations Chronicle, July 1967, p. 4. Security Council Official Records, 1358th Meeting, 13 June 1967, S/PV 1358, at 20. 18 United Nations Chronicle, No. 8 (1981) p. 5. SC Res. 487 (June 19, 1981). 18 United Nations Chronicle, No. 8, (1981) pp. 5-9, 61-74; 20 ILM (1981) pp. 965-97.

26 What is amazing is that even this incident has been cited by some writers as a precedent of states recognition of anticipatory self-defence. Greenwood referring to Franck, for example, stated that although international reaction was generally condemnatory of Israel, in most cases that reaction was based on a conclusion that Israel had failed to demonstrate that there was an imminent threat from Iraq and had thus failed to satisfy the Caroline requirements for anticipatory self-defense, rather than on any rejection of anticipatory self-defense as such.116 It is submitted that this is not the case. A closer examination of the statements made by states during the Security Council debate will once and for all clear the air in this regard. From the Security Council resolution and the debates before and after the resolution, the following facts are established: (i) Out of the many representatives of states participated in the Security Council debate, none of them specifically argued that anticipatory self-defence was legal or that the condemnation of Israel was due to the fact that its use of force did not satisfy the Caroline requirements for anticipatory self-defense (not even the US representative).117 Only the UK representative (only one among the sixty delegates which participated in the debate) very generally referred to the phrase instant or overwhelming necessity of selfdefence without more, but even such a general reference was made after admitting the requirement of an armed attack.118 (ii) In the Security Council debate, Mexico,119 Guyana,120 and Syria121 specifically rejected the concept of anticipatory self-defence by referring to the requirement of an armed attack under Article 51. (iii) A close scrutiny of the Iraqs nuclear reactor incident reveals the fact that it was in fact not a case of anticipatory self-defence and was only a case of preventive strike against unforeseeable future threat. It seems to be the reason why many states did not specifically name it as anticipatory self-defence and reject it as such. The other reason may be the confusion and the imprecise usage of the terms anticipatory, preemptive and preventive and many states might have thought that preemptive or preventive strike
See, Christopher Greenwood, loc. Cit. n. 3, at p. 13; id. at 14, referring to T.M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge University Press 2002) pp. 105-107. 117 Mrs. Kirkpatrick (United States of America) first stated: We were shocked by the Israeli air strike on the Iraq nuclear facility and promptly condemned this action and later expressed a few consolatory words like Israel might have sincerely believed it was a defensive war and Israel is an important and valued ally. Nowhere in her statement can be found any argument for anticipatory self-defence. See 20 ILM (1981) p. 985. 118 Sir Anthony Parsons (United Kingdom) said, It has been argued that the Israeli attack was an act of self-defence. But it was not a response to an armed attack on Israel by Iraq. There was no instant or overwhelming necessity for self-defence. See 20 ILM (1981) p. 977. 119 Mexico maintained that it is inadmissible to invoke the right to self-defence when no armed attack has taken place. The concept of preventive war was definitely abolished by the Charter of the United Nations, see 19 ILM (1981) pp. 991-2. 120 Mr. Sinclair (Guyana) stressed the point that while Article 51 of the Charter confers upon member states the right of individual self-defence if an armed attack occurs against them, no where did it provide for the use of preemptive strike, see 18 United Nations Chronicle, No. 8, (1981) at p. 69. 121 Syria contended that Article 51 of the Charter clearly defines self-defence as an inherent right only if an armed attack occurs and that the notion of preemptive strike was unacceptable. Statement of Mr. El-fattal, 36 SCOR, 2284 mtg. (June 16, 1981), at 6.
116

27 meant to express anticipatory self-defence (as we understand today). It does not, therefore, mean that many states were reluctant to reject anticipatory self-defence. A number of states including Soviet Union,122 Brazil,123 Egypt,124 Spain, Pakistan, and Yugoslavia, in very strong words, condemned the attack by using the terms preemptive or preventive strike. Many states affirmed that the attack was an act of aggression to be taken enforcement action under Chapter VII of the Charter. (iv) The Israeli representative defended his case entirely relying on the right of anticipatory self-defence, referring to authorities like Waldock and Bowett.125 Iraq countered that self-defence was permissible only against an armed attack.126 Therefore, the unanimous condemnation of Israel by the Security Council impliedly indicates the rejection of the notion of anticipatory self-defence by the international community. Or at the minimum it can be regarded as a strong precedent of the rejection of the international community of the notion of preventive war. (v) As the incident itself is not a use of force against an imminent attack, what is established without any doubt is that it can never ever be construed as a precedent supporting anticipatory self-defence. A careful analysis of the three incidents, relied on by advocates of anticipatory selfdefence, clearly shows that they are not really precedents for anticipatory self-defence. Out of the three incidents, in the first two, the incumbent states never officially invoked, or justified their conduct before the UN Security Council by reference to the so-called right of anticipatory self-defence. State practice includes both what states say and what they do. However, as far as the element of opinio juris is concerned, the official pronouncement or legal justification of its action by a state before the UN Body is the most conspicuous example of it. Therefore, the fact that the incumbent state itself had refrained from officially invoking anticipatory self-defence before the authoritative body means that it did not believe that such a practice was lawful and this is a clear demonstration of absence of opinio juris even on the part of the incumbent state, let alone the international community.
Soviet Union stated: Indeed, the raid of the Israeli Air Force on the nuclear research center represents an attempt to strengthen its criminal practice of carrying out so-called pre-emptive strikes to replace international law with the law of the jungle the representative of Israel has cited even legal arguments to support the doctrine of preventive war. These arguments are familiar to us from the 1930s and 1940s when another State carried out pre-emptive strikes right and left until it collapsed under the weight of its own crimes, UN Doc. S/PV 2283, 22-23, (15 June 1981). 123 The Brazilian representative stated: My country joined other Member States in a clear condemnation of the aggression suffered by Iraq. The notion of preventive aggression was unacceptable under the legal system which bound all nations. Toleration of that nation would lead to the destruction of the United Nations, Sweeney, Oliver, and Leech, Cases and Materials on the International Legal System, 3rd edn. (New York, The Foundation Press Inc. 1988) p. 1468. 124 19 ILM (1981) p. 980. 125 Statement of Mr. Blum, UN Doc. S/PV.2280, 52-55 (June 12, 1981). Mr. Blum stated that Israel was exercising its inherent and natural right of self-defence, as understood in general international law and well within the meaning of Article 51 of the UN Charter, ibid. at p. 52, and that the notion of anticipatory self-defence is permissible under international law, ibid. at pp. 53-55. 126 Repertoire of the Practice of the Security Council, (1981-1984) pp. 202-04 ; see also 18 United Nations Chronicle, No. 8, (1981) at p. 7.
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28 Apart form these three major incidents, there are three further examples of the United States relying partially on anticipatory self-defence to justify the unilateral use of force against terrorists and their sponsoring states. The first was the US air strike on April 14 1986 on Libyan targets allegedly used as bases for terrorists in response to the terrorist bombing of a discotheque in Berlin. The US argued that the use of force was meant to prevent future terrorist attacks. The air strike was questioned by the international community. A proposed resolution in the Security Council to condemn the US action was vetoed by the US, the UK and France. However, the General Assembly adopted a resolution censuring the US.127 The second was the US attack of June 26, 1993 by tomahawk missiles on Iraqi intelligence forces in response to an unsuccessful Iraqi plot to assassinate former President George Bush, sr. The action was again criticized by the international community but the criticism was less strident.128 Thirdly, in 1998, trucks loaded with bombs blew up outside the US embassies in Kenya and Tanzania killing more than 200 people. The US attacked by Tomahawk missiles on 20 August 1998 on the alleged terrorist outposts in Afghanistan and a Sudanese pharmaceutical plant. International reaction was mixed, with the most intense criticism focused on the Sudan attack.129 Apart from a few Western governments which approved or kept quiet, most states condemned the Air strikes. They did not accept them as legitimate self-defence under the UN Charter.130 The conclusion is that from 1945 until 2001, only a single state, Israel, expressly invoked anticipatory self-defence in an inter-state use of force in relation to its destruction of Iraqs nuclear reactor in 1981. The Security Council, however, unanimously decided that it was a violation of international law and most states in the international community condemned and reprimanded Israel. Apart from Israel, the US used force in three situations to prevent terrorist attacks. Although these uses of force were supported by its allies and some Western countries, they were opposed by others. It is, therefore, unequivocal that the right of anticipatory self-defence, as claimed to be formulated in the Caroline incident, was not supported by post-UN Charter State practice and was never established as customary international law before September 11. 6. STATE PRACTICE AFTER SEPTEMBER 11 AND ITS NORMATIVE IMPACT IN THE 21ST CENTURY WORLD ORDER

The Cold War period ended with the collapse of the Soviet Union. Many international lawyers were optimistic about the situation and expected a new productive world order
G.A. Res. 41/38, 41st Sess., 78th plen. mtg. (1986) (stating that the General Assembly was gravely concerned at the aerial and naval military attack perpetrated against the cities of Tripoli and Bengazi and condemned the attack on Libya as a violation of the Charter of the United Nations and of international law. See also Michael Byers, Terrorism, the Use of Force and International Law after 11 September, 51 ICLQ (2002) p. 401, at p. 407. 128 Most of the Arab world expressed regret regarding the attack; Arab Governments Critical, New York Times, 28 June 1993, at A7. 129 Phil Reeves, Outraged Yeltsin Denounces Indecent US Behaviour, Independent (London), 22 August 1998, p. 2. 130 Jackson Nyamuya Maogoto, Battling Terrorism: Legal Perspectives on the Use of force and the War on Terror, (Aldershot, Ashgate 2005) p. 127.
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29 free from bitter rivalry between the two super powers. Nevertheless, their expectations were frustrated when the 21st century was ushered in with the terrorist attacks on the World Trade Centre and the Pentagon on September 11, 2001. The United States reactions to these attacks were far-reaching. First, the US and its allies used military force in Afghanistan (2001), alleging that the de facto Government of Afghanistan (the Taliban) harboured and gave safe havens to Al Qaeda terrorists. Secondly, the US with the support of like-minded States invaded and occupied Iraq (2003), and deposed Saddam Hussein, alleging that Iraq had links with Al Qaeda and that Saddam Hussein, with stockpiles of weapons of mass destructions, was a dangerous threat to the US and its allies. The incidents of September 11 and the US military responses raise several important issues under international law regarding the use of force and demonstrate attempts to widen the scope of self-defence. We have seen earlier that the pre- September 11 state practice was clearly not in favour of anticipatory self-defence and its status as customary international law. The main focus of this section is to examine the postSeptember 11 state practice to see whether international law on self-defence has changed in view of the practice of the sole super power of the world. The United States use of force in Afghanistan (2001) On October 7, 2001, the US informed the UN Security Council that it was exercising its inherent right of individual and collective self-defence by attacking Al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan. The US main justification, therefore, in respect of its use of force against Afghanistan was selfdefence against armed attacks by the terrorists. Commentators have raised three main questions: (1) the meaning of armed attack in Article 51 of the Charter; (2) the law of state responsibility, in particular whether and under what circumstances a state is responsible for actions undertaken by non-state actors; and (3) the customary international law requirements of necessity and proportionality.131 Since the present paper is limited only to the question of the legality of anticipatory self-defence, the space does not permit to touch upon these important issues and the focus will be more on the normative impact of the US use of force in Afghanistan. The legality of the use of force in Afghanistan by the US and its allies was hotly debated among commentators and they were deeply divided again. Some argued for while others argued against the US use of force. What is ironic is that arguments of almost all commentators (even those who strongly supported anticipatory self-defence and rejected the requirement of armed attack) premised on the requirement of armed attack under Article 51 as if it was unanimously accepted element of self-defence. Those who opposed the US use of force against Afghanistan argued that the September 11 attacks were not armed attacks under Article 51.132 Some argued that the
131

Steven R. Ratner, Jus ad Bellum and Jus in Bello After September 11, 96 AJIL (2002) pp. 905-

21. John Quigley, loc. Cit. n. 46, at pp. 543-46; Giorgio Gaja, In What Sense was There an Armed attack?, EJIL Discussion Forum, The Attack on World Trade Centre: Legal Responses, http://www.ejil.org/forum_WTC/ny-gaja.html. Carsten Stahn, Security Council Resolutions 1368(2001) and 1373(2001): What They Say and What They Do not Say, EJIL Discussion Forum, The Attack on the World Trade Center: Legal Responses, http://www.ejil.org/forum_WTC/ny-stahn.html. Frederic Megret, War? Legal Semantics and the Move to Violence 13 (2) EJIL (2002) pp. 361-400.
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30 perpetrators were terrorists (non-state actors), not organs or agents of Afghanistan, and Afghanistan was not directly imputable for their acts. They rejected the harbouring theory and stated that the use of military force against a state that merely harboured terrorists or was unable to control misuse of its territory, in the absence of direct involvement in the attack, would be impermissible.133 Some commentators expressed the view that although the initial use of force by the US and its allies were not unlawful because the attacks were attributable to Afghanistan but later acts of use of force after the Taliban fell in December 2001 violated the law of necessity and proportionality.134 On the other hand, there were commentators who believe that September 11 terrorist attacks could be regarded as an armed attack135 and that it was lawful for the victim State to use force against the State which harboured the terrorists.136 Many of these commentators concluded that the existing international law on the use of force could be taken to have been changed and the notion of the right of self-defence broadened.137 Their main contention is the possible emergence of a new rule of international law by virtue of a precedent-creating practice of the sole superpower, supported138 by or abstained from criticism of most of the States.139 It is true that most States did not oppose or openly condemn the use of force against Afghanistan.140 There are several reasons for this. First, the September 11 incident was a tragedy not only for the US but also for the international community and therefore the use of force to attack Al Qaeda terrorists who were allegedly responsible for the attacks had a just cause and could even be said as a just war (absent regime change motive and absent injuring innocent Afghan people). Second, most States did not recognize the Taliban regime and had no diplomatic ties with it; due to gross violations of human and women rights and destruction of cultural heritage, most States disliked the Taliban. If the use of
Jordan J. Paust, Use of Force against Terrorists in Afghanistan, Iraq and Beyond, 35 Cornell Intl. L.J. (2002) p. 533, at p. 540. See also Michael Byers, loc. Cit. n. 127, at p. 408. 134 See Mary Ellen OConnell, Lawful Self-Defence to Terrorism, 63 U. Pitt.L. Rev. (2002) p. 889, at p. 904. 135 Christopher Greenwood, loc. Cit. n. 3, at p. 17; Sean D. Murphy 2002, loc. Cit. n, 46, at pp. 45-48. 136 Thomas M. Franck, Terrorism and the Right of Self-Defence, 95 AJIL (2001) p. 839, at pp. 84041. 137 See, for example, Antonio Cassese, Terrorism is also Disrupting Some Crucial Legal Categories of International Law 12 (5) EJIL (2001) 993-1001, (stating: The events of 11 September have dramatically altered this legal framework in a matter of a few days, practically all States (all members of the Security Council plus members of NATO other than those sitting on the SC, plus all States that have not objected to resort to Art. 51) have come to assimilate a terrorist attack by a terrorist organization to an armed aggression by a state, entitling the victim state to resort to self-defence). 138 NATO Council regarded the attacks as an armed attack under Article 5 of the NATO Treaty, opening the way for collective self-defence; see Statement by the NATO Council, Press Release (2001) 124, (Sept. 12, 2001), reprinted in (2001) 40 ILM 1268. 139 States here means official circles in States. Various private actors, from political parties to student groups to journalists to academics, protested the US action. See S.R. Ratner, (2002) 96 AJIL 905, at 909. 140 Nevertheless, strong condemnations were made by Iraq, Sudan, and North Korea, stating that an attack on the people of Afghanistan for the acts of terrorists was unjustified. Condemnations were also made by Iran, Cuba, and Malaysia. Vietnam voiced concerns over the attacks. See Steven R. Ratner, Jus ad Bellum and Jus in Bello After September 11, 96 AJIL (2002) pp. 905-21, at pp. 909-10. In April 2002, the OICs Foreign ministers, issued a Declaration rejecting any unilateral action taken against any Islamic country under the pretext of combating international terrorism, Kuala Lumpur Declaration on International Terrorism, April 3, 2002, para. 15, available at <http://www.oic-oci.org/english/fm/11_extraordinary/declaration.htm>.
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31 force were not against the Taliban, but against another sovereign State, the reaction of the international community would certainly be different. Third, the United States appeared to have been given leeway with respect to its initial reaction to September 11 because of the gravity of the attack.141 Fourth, in the face of a challenge of the sole superpower that if you are not with us, you are against us,142 no country in the world would risk its own national interest to openly oppose it. Therefore, the absence of protest against the use of force in Afghanistan could not constitute acquiescence by States (in the absence of the required opinio juris). It could not create a normative precedent, which might evolve into a new rule of customary international law. Thus, as stated earlier, international law is intact in this respect and to be a legitimate self-defence under Article 51 of the Charter, armed attack is an essential requirement. Even though it were accepted as a precedent creating normative impact, the most it could create would be that a terrorists attack, depending on its scale and effect, could arguably be regarded as an armed attack that could trigger the right of selfdefence. One commentator argued that the US use of force was also preemptive because in its letter to the Security Council143 the US said that its action was in response to the attack on the World Trade Centre and the aim was to deter further attacks on the US.144 However, the letter did not even specify information about any particular anticipated attacks and thus further attacks appeared to be mere speculations.145 Since the armed attack had already completed, the use of force at a later time would definitely amount to an unlawful reprisal. To avoid such a situation, the letter mentioned about the ongoing threats. Where a significant armed attack has already occurred but is not on-going, the defending state can use force if it can show by clear and convincing evidence that future attacks are planned.146 This is a lawful self-defence against an armed attack and not an anticipatory self-defence. The Afghanistan incident, therefore, cannot be a precedent legitimizing anticipatory self-defence because the US main justification for its use of force was the actual armed attack against the World Trade Centre. Even if it were taken as a precedent for anticipatory self-defence, it would do so only in the context of international terrorism147 and in very limited circumstances which include: (1) a prior
Abdul Ghafur Hamid & Khin Maung Sein, Public International Law: A Practical Approach, 2nd edn. (Kuala Lumpur, Pearson-Prentice Hall 2007) p. 471. 142 See the State of the Union Speech by the United States President, 20 September 2001: Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbour or support terrorism will be regarded by the United States as a hostile regime, available at <http://www.whitehouse.gov/news/releases/2001/09/200109208.html>, (last visited September 25, 2007). 143 Letter dated 7 October 2001 from the Permanent Representative of the USA to the United Nations Addressed to the President of the Security Council, UN Doc. S/2001/946 (2001). 144 Christine Gray, The Use of Force and the International Legal Order, in Malcolm D. Evans, ed., International Law (Oxford University Press 2003) pp. 589-620, at p. 604. 145 John Quigley, loc. Cit. n. 46, at p. 544. 146 Mary Ellen OConnell, The Myth of Pre-Emptive Self-Defence, The American Society of International Law Presidential Task Force on Terrorism, (August 2002) pp. 8-10, available at http://www.asil.org (last visited Oct. 3, 2007). See also Mary Ellen OConnell, Lawful Self-Defence to Terrorism, loc. cit. n. 134, at p. 893. 147 Christine Gray, in Malcolm Evans, loc. cit. n. 144, at p. 604, where the writer said that: many states in the past rejected the legality of preemptive self-defence, but they have now accepted this wide right to self-defence by the US. However, this may be only in response to terrorism, not a general acceptance of anticipatory or preemptive use of force.
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32 [significant] attack; (2) an expressed intention to carry out future attacks; and arguably (3) an indication by the Security Council that the requirements of self-defence have been satisfied.148 Moreover, an analysis of the impact of international law on this issue must be assessed in context, in particular in light of the controversy over the subsequent assertions of anticipatory self-defence in Iraq and elsewhere. The Bush Doctrine or preventive (preemptive) self-defence articulated in the National Security Strategy of the United States About six months after defeating Al-Qaida fighters and toppling the Taliban from power, the US government released its formal policy statement, The National Security Strategy of the United States of America (NSS), on 17 September 2002, which states:
For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat - most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction weapons that can be easily concealed, delivered covertly, and used without warning. The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction - and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.149

The US governments policy statement (or Bush doctrine) calls for the use of force even beyond the scope of the controversial anticipatory self-defense. It premises self-defence neither on an existing attack, nor (as required under the Caroline formula) an imminent attack. The US National Security Strategy allows military action against emerging threats (of terrorists and tyrants) before they are fully formed.150 According to Sapiro, the new concept created by the Strategy is better to be termed preventive self-defence and that there is no basis in international law of such a doctrine because it goes even beyond the imminent threat requirement of the doctrine of anticipatory self-defence.151 Falk is of the same view: The highly abstract and vague phrasing of the NSS of the USA would be more accurately formulated as a preventive war doctrine.152

Helen Duffy, op. cit. n. 42, at. P. 205. White House, The National Security Strategy of the USA, 15 (Sept. 17, 2002), available at http://www.whitehouse.gov/nsc/nss.pdf (last visited Oct. 2, 2007). 150 Helen Duffy, op. cit. n. 42, at p. 209. 151 Miriam Sapiro, loc. cit. n. 7, at p. 600. 152 Richard A. Falk, What Future for the UN Charter System of War Prevention, 97 AJIL (2003) p. 590 at p. 598.
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33 The document very briefly mentions the legality of the new U.S. strategy and provides an incomplete analysis of the relevant norms. It takes the wider interpretation of self-defense as a matter of settled law although this is not the case. The document also fails to fully consider the application of two customary international law principles: necessity and proportionality. 153 The Bush Doctrine or preventive (preemptive) selfdefence is not universally shared.154 Even US close allies like Britain, Australia, and Spain supported for military action against Iraq not on the basis of the preventive (preemptive) self defence but only on the enforcement of UN Security Council Resolutions on Iraqi disarmament dating back to 1991.155 The doctrine was squarely rejected from the very outset by most of the international lawyers (even by those who advocate anticipatory self-defence).156 The United States Invasion of Iraq (2003) In March 2003, the United States and its allies invaded Iraq (Operation Iraqi freedom) despite the overwhelming opposition by most States forming the international community. As regards the legal justifications for the invasion of Iraq, the US Government in the beginning appeared to rely on the Bush Doctrine or the so-called doctrine of preventive (preemptive) self-defence as pronounced in the National Security Strategy. Ultimately, however, the United States did not assert that its invasion of Iraq was justified under international law on the ground of the preventive (preemptive) selfdefence.157 Rather the United States argued that the invasion was lawful because the Security Council by virtue of its earlier resolutions authorized it. This assertion is based on a creative reading of three Security Council resolutions - 678, 687 and 1441 - and of their legislative history. It is the view of the overwhelming majority of international lawyers that the text of Resolution 678 and those resolutions that followed, together with the negotiating history and subsequent practice, clearly demonstrate that the United States and its allies did not have Security Council authorization in March 2003 to invade Iraq.158 The conclusion then is that the legal justifications invoked by the US and its allies to invade Iraq are unfounded in international law. The total rejection by the international community of the Iraq war is a clear indication of its abhorrence of the preemptive style of use of force and unilateralism.
See Chris Bordelon, loc. cit. n. 6, p. 111, (concluding that the US Strategy does not comply with international law, at p. 146); Major Joshua E. Kastenberg, The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principles of Anticipatory Self-Defense and Preemption, 55 AFL Review (2004) p. 87, at p. 88. 154 David P. Fidler, International Law and Weapons of Mass Destruction: End of the Arms Control Approach? 14 Duke J. of Comp. & Intl. L (2004) p. 39, at p. 72. 155 Sean D. Murphy, Use of Military Force to Disarm Iraq, 97 AJIL (2003) p. 419, at pp. 427-28. 156 Thomas M. Franck, What Happens Now? The United Nations After Iraq, 97 AJIL (2003)p. 607, at p. 619; Joel R. Paul, The Bush Doctrine: Making or Breaking Customary International Law?, 27 Hastings Intl. & Comp. L. Rev. (2004) p. 457, at p. 466; Miriam Sapiro, loc. cit. n. 7, at p. 604. 157 See, Sean D. Murphy, Assessing the Legality of Invading Iraq, 92 Geo. L.J. (2004) p. 173, at p. 174. 158 See ibid. at p. 177; Thomas M. Franck 2003, loc. cit. n. 156, at pp. 611-14; Carsten Stahn, Enforcement of the Collective Will after Iraq, 97 AJIL (2003) p. 804, at p. 806; Rainer Hofmann, International Law and the Use of Military Force Against Iraq, Ger.Y.B. Intl L. (2002) p. 33.
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34 Violation of law by the sole super-power is merely a breach of the law and does not create a new law What is the impact of September 11 incidents and the United States uses of force in Afghanistan and Iraq on international law? Is international law still intact or has it been modified by the practice of the sole superpower? The answer is simple and clear: international law on the use of force is still as it is and has by no means been modified or altered. In the case of the invasion of Iraq, we have seen that the legal justifications put forward by the United States are not persuasive. The overwhelming majority of States expressed their opposition to the invasion. Some writers have argued that the invasion of Iraq is state practice that provides evidence of a change in the customary law loosening the constraints of necessity and proportionality.159 Some scholars have gone further, arguing that the rule on the prohibition of the use of force has increasingly been eroded, and that the use of force in the form of preventive (preemptive) self-defence is no longer forbidden.160 These arguments are misplaced. The creation of a new customary rule requires a widespread and consistent state practice and opinio juris. The practice of justifying the use of force on grounds of anticipatory or preemptive self-defence is not consistent and widespread.161 Furthermore, the psychological element of opinio juris is not present. Most states apparently view the US justification of self-defence for the preventive (preemptive) use of force in Iraq as unjustifiable.162 Some even go so far as to declare that violation of the law prohibiting the use of force by the sole super power has effectively changed the law to the extent that there is now no more such a prohibition. About 35 years ago Franck wrote an article entitled Who killed Article 2(4)? and declared the death of Article 2(4) of the Charter due to unlawful uses of force by powerful states.163 Henkin effectively responded the accusation as follows: [I]t judges the vitality of the law by looking only at its failures. For me, Article 2(4) lives and can live. No government, no responsible official of government has been prepared or has wished to pronounce it dead. this law is indeed in the national interest of all nations.164 After September 11 and the Iraq war, Franck repeated the question Who killed Article 2(4) again? and stated: In international law, violators do sometimes turn out to be lawgivers. I have argued elsewhere that the Charter, as a quasi-constitutional instrument,
John Alan Cohan, The Bush Doctrine and the Emerging Norm of Anticipatory Self-Defence in Customary International Law, 15 Pace Intl L. Rev. (2003) p. 283, at pp. 292, 356. 160 Lucy Martinez, September 11th, Iraq and the Doctrine of Anticipatory Self-Defence, 72 UMKC L. Rev. (2003-2004) p. 123, at p. 164. Contra, Michael Byers, loc. cit. n. 127, at pp. 410-11. 161 Christine Gray 2000, op. cit. n. 104, at p.112. 162 David P. Fidler, loc. cit. n. 154, at pp. 72-73; see also Richard A. Falk, Future Implication of the Iraq Conflict: What Future for the UN Charter System of War Prevention? 97 AJIL (2003) p. 590, at p. 592 (stating that the claim of preemptive self-defence was essentially rejected by the Security Councils refusal to go along with US/UK demands for a direct endorsement of recourse to war). 163 Thomas M. Franck, Who Killed Article 2(4)? 64 AJIL (1970) p. 809. 164 Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL (1971) p. 544.
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35 is capable of evolving through the interpretive practice of its principal organs. In such circumstances, violation shades into revision165 It is true that the Charter can be evolved through the interpretative practice of its principal organs. Nevertheless, it is submitted that the interpretative practices like the one which has made the abstention by one of the permanent members not to constitute a veto and the initiation of the UN peacekeeping operations that are not mentioned anywhere in the Charter, can by no means be equated to violations of the substantive prohibitions of the Charter like Article 2(4). The interpretative practices are those that are not contrary to the purposes and principles of the Charter, that supplement the Charter by providing useful and constructive ways and means to implement it, and that are accepted or at least acquiesced by members of the respective organ and members of the United Nations in general. Article 2(4) of the Charter has presumably been killed many times since 1945. Despite all the violations, it is nevertheless still alive.166 The primary reason is the fact that the prohibition of the use of force embodied in the Charter is still considered by the international community as the highest achievement in international law after the catastrophe of the Second World War. It is difficult to deny the jus cogens character of the rule embodied in Article 2(4), with its exception recognized in Article 51. In order to make a change in the content of a peremptory norm of international law, one needs more than a simple absence of criticism with regard to some violations of the rule.167 Given the serious differences of opinion in the international community, it is also difficult to assert that a new peremptory norm recognizing an enlargement of the notion of self-defence has emerged.168 Another reason is that mere violations may not erode the law if violators themselves rely on different interpretations of the law or exceptions to the law because it means that violators still believe in the normative value of the law. In fact, as the sole superpower, the United States could have used force against Iraq without taking trouble of invoking international law norms. In this respect, the following ruling of the International Court of Justice in the Nicaragua case is very much relevant: If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the states conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.169

Thomas M. Franck 2003, loc. cit. n. 156, at p. 614, (The US no longer considers itself subordinated in any way to the treaty rules that lie at the heart of the UN Charter, at p. 617) 166 Marcelo G. Kohen, The Use of Force by the United States after the End of the Cold War, and Its Impact on International Law, in Michael Byers & Georg Nolte (eds.), United States Hegemony and the Foundations of International Law, (Cambridge University Press, 2003), pp. 197-231, at p. 228. 167 As stated in Article 53 of the Vienna Convention on the Law of Treaties, 1969, A peremptory norm of general international law is a norm accepted and recognized by the international community of sates as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 168 See Carsten Stahn, loc. cit. n. 158, at p. 814. 169 Nicaragua case (Merits), (1986) ICJ Rep. p. 14, at p. 98, para 186.

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36 Therefore, the United States uses of force in Afghanistan and Iraq should not be seen as the total rejection of the US of the normative constraints of international law or the authority of the Security Council.170 they by no means establish a norm-creating precedents as pointed out by some writers. Report of the SGs High-Level Panel and 2005 World Summit Outcome The Secretary General of the United Nations established a High Level Panel on Threats, Challenges, and Change to present its recommendations on how the United Nations can transform itself into a 21st Century organization. The panel is composed of 16 eminent persons. In its Report published in 2004, the High-Level Panel, after referring to Article 51 of the Charter, concluded: The language of this article is restrictive: However, a threatened state, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with alleged hostile intent, of nuclear weapons-making capability. Can a state, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defence, not just preemptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)?... The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it choose to. If it does not choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment and to visit again the military option. We do not favour the rewriting or reinterpretation of Article 51.171 The report is an impressive one in particular in respect of its recommendations on effective collective security.172 However, it is submitted with respect that its recommendations as to self-defence are questionable for several reasons. The Report without question accepts the right of anticipatory self-defence (against an imminent attack) as long established international law although it is the most controversial issue on which international lawyers are deeply divided and state practice is not in favour of such a sweeping conclusion. What is surprising is that the Report even appears to support a
See Sean D. Murphy, loc. cit. n. 157, p. 237; see also Carsten Stahn, loc. cit. n. 156, p. 804, (stating that the proclaimed loss of authority of the Charter rules as a normative framework is unfounded and that the normativity of the principle of non-use of force is still intact, at p. 822). 171 A More Secure World: Our Shared Responsibility, Report of the Secretary-Generals HighLevel Panel on Threats, Challenges and Change, United Nations (2004), Part 3, paras, 188-192 (emphasis added) available at <http://www.un.org/secureworld>. 172 Ibid., Part 3, Synopsis, and paras, 183-187.
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37 unilateral preventive military action against a non-imminent threat if the Security Council does not authorize it and persuasion, negotiation and containment are exhausted.173 This idea is in fact very much akin to the one supporting the US invasion of Iraq (2003), which most states and most international lawyers opposed. It is a firm belief of the present writer that unilateral preventive military action should never be allowed against a nonimminent threat if we want to maintain a strong and effective collective security system. The 60th Session of the UN General Assembly was unique because it was an extraordinary session marked with the High Level Plenary Meeting of the World Leaders (the World Summit 2005). The General Assembly Resolution 60/1, that adopted the 2005 World Summit Outcome, entirely ignores the above recommendations of the Panel and instead reaffirms the commitment of all the world leaders towards an effective and efficient collective security system.174 In the Resolution, the world leaders agree that: We reiterate the importance of promoting and strengthening the multilateral process and addressing international challenges and problems by strictly abiding by the Charter and the principles of international law, and further stress our commitment to multilateralism. We reaffirm that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security. We further reaffirm the authority of the Security Council to mandate coercive action to maintain international peace and security175

Concluding remarks The above quotation from the General Assembly Resolution is the voice and the commitment of world leaders in the historic World Summit. Despite the flaws of the United Nations, no one has proposed a better system for serving the interests of peace and security in the face of terrorism and nuclear weapons. The United Nations will stay and we must strengthen the United Nations collective security system and enhance multilateralism to face the various threats of the 21st century rather than encourage unilateral use of force. It is true that there were more voices by writers in favour of anticipatory self-defence in the aftermath of September 11 apparently due to fear of the mega-destructive capability of terrorism and weapons of mass destruction. New customary international law can, nevertheless, be created only by widespread and consistent state practice and opinio juris. In assessing the impact that State practice may have had on international law, the US use of force in Afghanistan should not be referred to in isolation but in the context of the events that followed later on, such as the US invasion of Iraq and the Israeli attacks on

Ibid., para. 190. General Assembly Resolution 60/1, 2005 World Summit Outcome, UN Doc. A/RES/60/1, 24 October 2005, para. 72. 175 Ibid. paras 78-79.
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38 Syria (2003).176 During the Security Council debate on the Israeli bombing of Syria in October 2003, many states expressed their deep concern about the attack. Spanish representative, for example, denounced the extreme gravity of the attack perpetrated against Syria, which was a patent violation of international law and worthy of condemnation.177 With time, and in particular in the wake of the US invasion of Iraq, states have given more emphasis on the collective security system as opposed to unilateral force and committed more to enhance the role of the United Nations.178 States tend to openly reject assertions of the unilateral right to use force preemptively.179 All in all, it can fairly be concluded that post-September 11 state practice also does not support the idea of unilateral use of force in anticipation of a threatened attack.

7.

POLICY CONSIDERATIONS

The above are the legal arguments against anticipatory self-defence. Its advocates very much rely on non-legal or policy arguments as well and the chief among them is that anticipatory self-defence is necessary because of nuclear and other weapons of mass destruction and the threat of international terrorism. Nevertheless, a close scrutiny of policy considerations also runs counter to the notion of anticipatory self-defence. 7.1 The issue of nuclear and other weapons of mass destruction

Most writers and Governments agree that it would be too dangerous for the world community to allow anticipatory self-defence simply because there were nuclear weapons with modern sophisticated devices. On the other hand, it is true that international law is not a suicide pact. To say that a State has to be a sitting duck and wait until the bombs are actually dropping on its soil cannot be right either. When attack is initiated and is under way, even though the fighter plane or the missile has not actually arrived in the victim State, defensive measures can be taken. As Nagendra Singh has rightly put: as long as the aggressor State with the definite intention of launching an armed attack on a

In the recent Israeli attack against Hezbollah in Lebanon in July and August 2006, Israel relied on self-defence under Article 51 of the Charter. The present paper will not discuss it because it was a case of self-defence against an armed attack by non-state-actors and anticipatory self-defence was not an issue. For the legality of the self-defence argument, see Victor Kattan, Israel, Hezbollah and the Conflict in Lebanon: An Act of Aggression or Self-defence, 14 Hum. Rts. Br. (2006) 26; Tom Ruys, Crossing the Thin Blue Line: An Inquiry into Israels Recourse to Self-Defence Against Hezbollah, 43 Stan. J. Intl L. (2007) 265. 177 See Security Council Meets in Emergency Session Following Israeli Air Strike against Syria Syria Asks Council to Condemn Attack; Israel Says Attack Response for Islamic Jihads Bombing of Haifa, UN Press Release, 5 October 2003, UN Doc. SC/7887. 178 Helen Duffy, op. cit. n. 42, at p. 214. 179 See, for example, the statement of the French President, Jacques Chirac, on 23 September 2003: The war launched without Security Council authorization shook the multilateral system No one should assign themselves the right to use force unilaterally and preemptively. No one may act alone. (Chirac Says Iraq War Caused UN Crisis, BBC.com, 23 September 2003, available at <http://news.bbc.uk/1/hi/world/americas/3130880.stm> , (last visited September 10, 2007).

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39 victim State has pulled the trigger, the requirement of Article 51 may be said to have been fulfilled.180 Intercontinental Ballistic Missiles (ICBMs) or even intermediate range missiles can be destroyed by an effective Anti-Ballistic Missile (ABM) system. An ICBM normally takes 25 to 30 minutes to hit the target. Different forms of interception can be used at different stages of the flight of the ICBM.181 Therefore, defensive measures are still possible even after a nuclear missile has been launched. In practice, however, the main nuclear policy of the nuclear power States is the doctrine of nuclear deterrence. They primarily rely on the second strike capability. In this way, both sides are able to inflict mutually assured destruction (MAD) on each other whichever side attacks first.182 In its advisory opinion on Legality of the Threat or Use of Nuclear Weapons, the ICJ unanimously held that a threat or use of force by means of nuclear weapons that is contrary to Article 2(4) of the UN Charter and that fails to meet all the requirements of Article 51 is unlawful.183 However, the Court could not conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.184 One point that is very clear is that nuclear weapons can never be used if the matter is not an extreme circumstance of self-defence, in which the very existence of a State would be at stake. It is equally clear by the use of the expression extreme circumstance that act of selfdefence with nuclear weapons needs greater degree of compliance with the requirements of necessity and proportionality than the same with conventional weapons. Indeed the nuclear weapons and the new terrors of war render it even more important that law should deter States from initiating force, which might escalate into total destruction. In other words, the existence of nuclear weapons makes it even more important for States to refrain from the use of force. Therefore, the claim that the nuclear weapons have made the anticipatory self-defence a necessity is obviously unfounded. 7.2 The issue of international terrorism

The present article is essentially limited to the issue of anticipatory self-defence in the context of inter-state use of force. Whether a state can exercise self-defence, in particlur anticipatory self-defence, against terrorists that are non-state-actors is a separate issue that calls for an in-depth study and it is not the concern of the present article. It may involve complicated legal issues of whether terrorist attacks can be regarded as armed attack under Article 51 of the Charter, whether a victim of terrorist attacks may use force against a state in whose territory the terrorist are found and whether the current law of

Nagendra Singh, loc. cit. n. 66, at p. 3. I. Cameron, Anti-Ballistic Missile Systems and International Law, in Nuclear Weapons and International Law, Istvan Pogany, ed. (Avebury, Aldershot 1987) p. 123. 182 Meredith, The Legality of a High-Technology Missile Defence System: The ABM and Outer Space Treaties, 78 AJIL (1984) p. 419. 183 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, The ICJ, (July 8, 1996) para. 105 (2) (c). 184 Ibid., para. 105 (2) (e).
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40 state responsibility is adequate to deal with issues of legal nexus between a state and terrorists. However, it is advisable to comment briefly on the argument that international terrorism makes anticipatory self-defence a necessity. Some governments and media, perhaps in furtherance of their own agenda, have raised the issue of terrorism to the highest level to the extent that there is no important matter in the present world other than terrorism. According to them, to combat terrorism is much more important than compliance with fundamental human rights and the sacred principles of international law. Everybody accepts that terrorists are enemies of mankind, and to combat terrorism is so important. However, what cannot be accepted is to use military force arbitrarily and unilaterally against a sovereign state on the ground of combating terrorism and in the name of self-defence, totally disregarding the well-established principles of international law,185 which is the very foundation of the contemporary world order. Once this foundation is destroyed, then the present world order will become hegemonic or anarchistic. Therefore, terrorism, even though so dangerous, cannot have any normative effect. Terrorism can be dealt with effectively without the necessity of breaking or bending the law. The truth is that terrorism cannot be successfully wiped out unilaterally or by means of unilateral use of force.186 It has international dimension and collectivity is the only answer to combat terrorism. The best way to combat terrorism is by means of collective will of states through the proper UN bodies, in particular the Security Council. 7.3 Hazards of anticipatory self-defence: subjective and mistake-prone, open to abuse and opening the Floodgates for unending armed conflicts

Anticipatory self-defence has certain inherent weaknesses. It involves a determination of certainty of attack, which is extremely difficult to make and necessitates an attempt to ascertain the intention of a government. This may lead to an unthinkable tragedy (especially when the use of force involves nuclear weapons) if there is a mistaken assessment of a situation.187 Compared to the actual armed attack, the imminence or threat of attack is difficult to prove, easy to fabricate, and open to abuses. Therefore, it is not surprising that throughout the history of the use of force, anticipatory self-defence was never resorted to by the genuine victim States, but served well the purpose of aggressor States. (Hitler, too, invoked anticipatory self-defence!). A good example of a mistaken assessment of a situation is the US invasion of Iraq in 2003. One of the initial justifications of the US to attack Iraq was its possession of Weapons of Mass Destruction and their potential danger to the US and its citizens. At that time, the intelligence reports were so positive and indicative that Iraq definitely had such destructive weapons, and only after the invasion it was proven to be untrue; a mistake done which cannot be undone. If a state like the US, with the most advanced
See Michael Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EJIL (2003) p. 227, at p. 233 (pointing out that: [a] usual procedure to modify customary law is to break it and to accompany the breach by a new legal claim). 186 See Jackson Nyamuya Maogoto, op. cit. n. 130, at p. 193 (stating that the modern terrorists function in loose-knit cells and the fight against terrorism cannot be purely by force). 187 Malanczuk (ed.) Akehursts, op. cit. n. 99, p. 313.
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41 technology and the most sophisticated intelligence system, could mistakenly decide to wage a preemptive war, one can imagine how subjective and mistake-prone it is to attack another state in anticipation of the potential danger or threat of attack of that state. The notion of anticipatory self-defence is also objectionable on the ground that it tends to expose the danger of opening the floodgates for unending armed conflicts.188 If anticipatory self-defence were legal, states would very easily think about attacking rival states to get the upper hand.189 India would attack Pakistan probably with nuclear weapons, if they believed that Pakistan was preparing to attack India with the same weapons. In the context of the recent North Koreas test-fire its long-range missile Taepodong-2190, if Japan believed that it were an imminent danger to its security, it would attack North Korea in anticipation. In accordance with the so-called right of anticipatory self-defence, every state in the world would have a license to attack any other state in the world on the ground of potential danger. The world would no longer be a safe place for us and for our future generations. 7.4 Peace, and not war, is the avowed aim of the international community and the peoples of the world

The avowed aim of the international community is peace and not war. Apart from a few warmongers, the peoples of the world love peace and hate war. Peace is regarded as the supreme value and whatever may imperil or jeopardize such value should be reined in as much as possible. If this is so, anticipatory self-defence or preemptive strikes should be banned since they may involve a huge degree of discretion and may have perilous consequences. However unrealistic the ban imposed by Article 2(4) may prove to be in the present circumstances of warfare, the overwhelming majority of states prefer to avoid risks of abuse. 8. CONCLUSION

The advocates of anticipatory self-defence primarily hold the view that the concept was formulated in the Caroline incident, which was established as the pre-Charter customary law, and that such anticipatory style of self-defence has been recognized by Article 51 of the Charter as an inherent right of states, which must not be impaired by anything in the Charter. The present article rejects the legality of anticipatory self-defence by invoking the two primary sources of international law: treaty law (the UN Charter) and customary international law. The methodology mainly used in analyzing Articles 2(4) and 51 of the UN Charter (treaty law) is to apply the general rule of treaty interpretation as enshrined in Article 31 of the Vienna Convention on the Law of Treaties, which is well established as customary law. In order to ascertain whether anticipatory self-defence is established as

Mark Drumbl, Victimhood in Our Neighbourhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 89 North Carolina Law Review (2002) p. 1, at pp. 32-33 (commenting on an elastic understanding of self-defence as a catalyst for chaos). 189 During the Cuban missile crisis, the US might have attacked Cuba or the USSR if they believed that anticipatory self-defence was legal. 190 Pressure to Stop Missile Test, New Straits Times, Tuesday, June 20, 2006, at p. 30.

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42 customary international law of the time, post UN Charter state practice has been thoroughly examined. The following are the results of the present study: (1) A close examination of the Caroline incident does not support the popular belief that it is a classic precedent of anticipatory self-defence. There is nothing anticipatory about the British action against the Caroline, because armed attacks by the rebels against the British had already been in progress, and the rebels occupation of the British territory also amounted to an on-going armed attack. (2) It is rather doubtful whether even pre-Charter state practice supported the notion of anticipatory self-defence so that it became pre-Charter customary law. (3) Even if anticipatory self-defence was established as pre-Charter customary law, it could not survive the Charter. This is because the prohibition of the use of force under Article 2(4) is an absolute prohibition and the only exception is self-defence under Article 51, which expressly makes armed attack as the essential element. This rule of non-use of force is a jus cogens norm and thus anticipatory self-defence, which is contrary to the combined effect of Articles 2(4) and 51, is null and void and without legal effect. (4) Proponents of anticipatory self-defence interpret the term inherent right in Article 51 to mean pre-Charter customary right allowing anticipatory action in selfdefence. Nevertheless, they entirely ignore or minimize the importance of the term if an armed attack occurs in the same article. Such a selective interpretation is devoid of good faith and also contrary to the rules of treaty interpretation under Article 31 of the Vienna Convention. (5) If one interprets Article 51 in good faith in accordance with the ordinary meaning of its terms in their context in the light of their purpose and object, taking into account subsequent practice of states and other relevant rules of international law, the meaning is clear and unequivocal: self-defence is exercisable only when there is an armed attack and anticipatory self-defence is incompatible with the UN Charter context. (6) Anticipatory self-defence had never been established as customary international law before September 11 due to lack of widespread and consistent state practice and opinio juris. After September 11, the US use of force in Afghanistan could arguably be regarded as the practice of a super power not opposed by most of the states of the international community. It is, however, doubtful whether it could create a new customary international law legalizing anticipatory self-defence in the context of general inter-state use of force (not in the context of use of force against terrorists) because it was a case of armed attacks already occurred and anticipation of future attacks was not the main issue. The overwhelming opposition of the international community against the war on Iraq and later developments cast more doubts on the customary international law position of anticipatory self-defence. Despite the flaws of the United Nations, no one has proposed a better system for the maintenance of international peace and security. The Charter-based system of world order can very well serve the international community even after the September 11 terrorist attacks and in the context of the 21st century world order. States, especially the United States and other Big Powers, should initiate a policy of strong adherence to the Charter and help make the Security Council central to the international communitys response to the threats to international peace and security, be they terrorists or failed

43 states. Only in this way can we save our succeeding generations from the scourge of war.