An Appraisal of the Doctrine and Practice of Self-defence in International Law
CHAPTER ONE
Objectives of Study
The essence of this research is to examine and appraise the doctrine of self-defence in international law so that the rules governing the exercise of self-defence can be made clear as much as possible. Misconception of the rules of self-defence has led some states to use force even when there is no justification.
Therefore, the objective of this dissertation therefore is to discover the reasons for the deviation from the provisions of the U N Charter, and proffer solutions for an effective observance by reference to the following issues: (i) to examine certain concepts that bear resemblance with the doctrine of self-defence. (ii) to examine the development of the right of self-defence, nature and scope of Article 51 of the U N Charter, Self-defence as a means of protection, and the categories of self-defence (iii) to examine the role of the U N Security Council in regulating use of force in self-defence and (iv) finally, to highlight the practice of some states on the exercise of self-defence.
CHAPTER TWO
CONCEPTUAL CLARIFICATION OF KEY TERMS
Introduction
The impact of writers on the corpus of international law is never capable of scientific analysis.1 Thus, fewer areas attract comments from international scholars and jurists than the area of use of force in self-defence.2 It is believed that much of the debates surrounding this area are influenced by the inadequate definition (or lack) of the various legal terms related to self defence.
More so, the proliferation of comments on the concept of self-defence has contributed to the controversy and confusion surrounding the doctrine of self-defence. Therefore, the objective of this chapter is to clarify certain concepts that are connected or related to the concept of self defence and determine their legality in international law.
The Meaning and Nature of Self-defence
There is generally no accepted definition of self-defence in international law. Thus, there are many definitions advanced by international instruments, scholars and institutions. The Dictionary of International Law of Armed Conflict defines self-defence thus; “the United Nations Charter authorizes any state member of the United Nations reflects the provisions of Article 51 of the U N Charter. However, this definition omits the element of “armed attack” which fulfillment is a condition precedent to the exercise of self-defence under the current legal framework of the UN Charter. Thus, this definition is defective for the purpose of this work.
The Nuremberg International Tribunal defined the right of self-defence as the right of a state threatened with an impending attack to judge for itself in the first instance whether it is justified in resorting to force.4 However, as relevant as this definition may be, it has the defect of being only an expression of the right of self-defence under customary international law, for it emphasizes „impending attack‟, not an „actual attack‟.5 Moreover, this definition leans towards the conception of self-defence within the exclusive prerogative of a state which decides whether or not to resort to force in self-defence.
Bowett views self-defence as a privilege or liberty which justifies a conduct otherwise illegal, and which is necessary for the protection of certain rights.6 There are some odds against this definition. This definition compares self-defence with reprisals in the sense of a „conduct otherwise illegal‟. It is submitted that Self-defence is a legal conduct provided it meets the conditions of proportionality and necessity.
Umozurike, rather than define the concept of self-defence, restated the provisions of Article 51 as a definition of self-defence.7 Unfortunately, the learned author did not explain the various parts of the provisions. The definition did not also consider the rules of proportionality and necessity governing self-defence. Similarly, Shaw gave the traditional definition of self-defence in Customary International Law.8 This definition is inadequate because it does not consider the new legal regime of the UN Charter encapsulated in Article 51.
CHAPTER THREE
THE DOCTRINE OF SELF-DEFENCE IN INTERNATIONAL LAW
Introduction
The concept of self-defence is perhaps one of the areas of international law that has attracted more comments from international scholars and jurists than any other aspect of the law. The debates among scholars over the doctrine of self defence remind the writer of the story about the blind men and the elephant – each of them touched only one part of their subject and generalized from it. Thus, the controversies and issues surrounding the doctrine have created the impression in some quarters that the concept of self-defence defies legal analysis.
In view of the prevailing circumstances, therefore, this Chapter aims at discussing the doctrine of self defence with particular reference to; development of the doctrine of self-defence in International law, the origin and scope of Article 51 of the Charter, the relationship between customary international law and Article 51 of the Charter, the categories of self-defence and the conditions governing the exercise of self-defence.
Development of the Doctrine of Self-defence in International Law
According to the historical school of thought, every law is rooted in the past and the legal norms are not the product of abstract reasoning.2Therefore, an examination of the development of the doctrine of self defence in international cannot be overemphasized having regard to the present state of international law on self defence.
The Just War Period
The earliest more serious attempts to put restrictions on the right to resort to force dates back to about 330BC which was the start of what is called the „just war period‟ 3 The doctrine of the just war arose as a consequence of the Christianization of the Roman Empire and the ensuing abandonment by Christians of pacifism.4 Shaw noted that force in this period could be used provided it complied with the divine will.5 The concept of just war embodied elements of Greek and Roman philosophy and was employed as the ultimate sanction for the maintenance of an ordered society.
CHAPTER FOUR
THE PRACTICE OF STATES ON SELF-DEFENCE IN INTERNATIONAL LAW
Introduction
The ingredients of state practice have been surveyed and attempts made to place them in a relevant context in Chapter Two of this work. It has been stated that it is how states act in practice that forms the basis of customary International law. But evidence of what a state does can be obtained from numerous sources. Examples of such sources include administrative acts, legislations, and decisions of court and activities of States on the international stage.
The State is not a living entity but consists of governmental departments and officials, and state practice is spread across a whole range of national organs. There are the state‟s legal officers, legislative institutions, courts, diplomatic agents and political leaders. Each of these engages in activities which relates to the international field and therefore one has to examine all such material sources and more in order to discover evidence of what states do. Thus, the obvious way to find out how countries are behaving in relation to the doctrine of self-defence is to read the newspapers, consult historical records, listen to what governmental authorities are saying and peruse official publication and treaties.
The purpose of this Chapter is to examine a few official documents of some UN member states with a view to discovering their position on the applicability of Article 51 of the UN Charter. This survey is to determine whether there is a pattern in the behavior of states and the tendency among states to resort to anticipatory or preemptive self-defence rather than wait for an armed attack as required by the provisions of the Article.
CHAPTER FIVE
SUMMARY AND CONCLUSION
Introduction
Article 51 of the UN Charter has generated controversy and comments among scholars of international law. These controversies have tended to obscure the scope and concept of self defence. Although this research work has attempted to appraise the doctrine and practice of self defence in international law, some of the debates on the doctrine of self defence are still ongoing, and it is difficult to exhaust all issues on self-defence.
However, the purpose of this chapter is to give a summary of this research work as well as give a statement of the findings based on the analysis of the issues in the previous chapters. To this end, appropriate suggestions will be proffered on how to address the problem that necessitated this research.
Summary
This dissertation starts with General Introduction. The General introduction comprises of the Introduction, Statement of the problem, Aim and Objectives, Scope of the research, Research Methodology, Justification, Literature Review, and Organizational Layout. It gives an overview of the doctrine of self-defence in International law.
This work also discusses concepts of self-defence, War, reprisal, customary international law, Terrorism, collective Self-defence, and Use of force. All these concepts are related to Self-defence as they are all forms of use of force of which Self defence is on exception. However, it has been stated that the doctrine of self-defence has long been accepted as one of the fundamental principles of international law.
The work also deals with the development, nature, and scope of the doctrine of self-defence, and the categories of self-defence in international law. The development of the doctrine of self-defence dates back to the just war period when just war was defined in terms of avenging of injuries suffered where the guilty party has refused to make amends. In the 17th Century, the concept of just war began to change. In 1842, after the Caroline incident, self defence developed into a legal doctrine, and the correspondence which followed the incident is regarded as a traditional formulation of self-defence in Customary International law. In the correspondence, Daniel Webster stated: „it will be for… (Her Majesty‟s) government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation‟. These rules have been accepted as the conditions governing self-defence.2These rules have been re-affirmed by the Nuremberg Military Tribunal that tried the German War Criminals and The International Court of Justice in Nicaragua case etc.
The provision of Article 51 has generated controversies and debates concerning the precise nature and scope of Article 51 of the Charter. Some of the issues generated by Article 51 include; the effect of Article 51 of the Charter on Customary International law, does Article 51 of the Charter allow use of preemptive or anticipatory self-defence? Whether or not self-defence can be exercised against non-state actors, what is the scope of “armed attack” in Article 51?, and the role of the principal organs of the UN, especially the Security Council in the exercise of self-defence. These issues are the cruxes for this research in this area. Based on these issues, it is clear that controversies surrounding Self-defence are not so much about its legality as the circumstances in which self-defence can be exercised.
Finally, the work highlights the policies of some states on self-defence in international Law. Although preemptive self-defence is not known to international law, state practices show that it is not restricted to the United States. Therefore, some states are also adopting the doctrine of preemptive self defence.
Findings
The following findings have been made based on the analysis of the doctrine of self defence and the problem of the research. First, States that have not signed and ratified the UN Charter are not bound by its terms. However, when the charter reflects customary international law then non-parties are bound, not because it is a treaty provision but because it reaffirms a rule of customary international law of self-defence.
Furthermore, it is now established that even where a treaty rule such as Article 51 of the UN Charter comes into being covering the same ground as a customary rule (the Webster formula of 1842), the latter will not simply be absorbed within the former but will maintain its separate existence. In the Nicaragua case, the court did not accept the argument of the United States that the norms of Customary International law concerned with self-defence have been „subsumed‟ and „supervened‟ by Article 51 of the United Nations Charter. It has been emphasized that „even if a treaty norms and a customary norm relevant to the area of self defence present dispute were to have exactly the same content, this would not be a reason for the court to hold that the incorporation of the customary norm into the charter must deprive the Caroline rule of its applicability as distinct from Article 51 of the UN Charter.
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