The Legality of Anticipatory Self-Defence in International Law

Abstract: The Caroline Case with its principles of necessity, proportionality and immediacy is alleged to be part of customary international law consider anticipatory self-defence, but a closer examination views that it can not be, mostly because of States are not convinced that it is the correct behaviour. Even if Article 51 of the UN Charter has been expanded to include acts of terrorism as armed attacks, it still does not give the right for States to act in self-defence when there is a mere threat of force. This situation would not have appeared if there would have been an explanation of the notion ´armed attack`, but interpretation of Article 51 shows that there was no intention to include anticipatory self-defence. State practice, UN documents and decisions from the International Court of Justice can all be evidence of practice and if there is opinio juris, the behaviour becomes customary international law. The United States promote for pre-emptive and preventive self-defence. Compared to anticipatory self-defence the ´Bush-doctrine` is wider and includes self-defence against general or specific armed attack that State believes will occur. The UN is of the opinion that the Security Council can authorize anticipatory self-defence if a State puts the matter to them, but the principle of non-intervention is too great to accept the legality that States can act anticipatory on their own device. There must appear an imminent threat of armed attack and the use of force in self-defence still has to be proportionate. This is in correspondence with the objects and purpose of the UN Charter. Article 2(4) of the Charter prohibits the threat or use of force and if a situation is put to the Security Council it is up to them to decide what kind of action is required to maintain international peace and security. The ICJ confirmed the criteria of proportionality as being part of customary international law in the cases of Nicaragua, Nuclear Weapons Case and Oil Platforms Case. The Nicaragua Case also stated that the words ´an armed attack occurs` speak of the actual commencement of physical violence by armed forces and separated grave use of force and less grave use of force as in the General Assembly Resolution 3314. The prominent writers agree that it is not legal for States to act anticipatory, unless the Security Council authorizes it. There is a gap between the legality and the legitimacy when force may be used. If a State act in self-defence against a threat of force or aggression that does not reach the threshold of armed attack, it is illegal if not viewed to the Security Council and given authorization. But, it can still be legitimate in the eyes of the community who have the choice to condemn or omit to condemn. Kofi Annan suggested a resolution setting out principles relating to use of force and when Security Council would authorize or mandate the use of force, but the World Summit in 2005 did not adapt it.