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A Legal Proposition Supporting the Coexistence of Anticipatory Self

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A Legal Proposition Supporting the Coexistence of Anticipatory Self 1 Does anticipatory self-defence coexist with the Charter of the United Nations 1945? Murray Colin Alder LLM This thesis is presented for the degree of Doctor of Philosophy Murdoch University 2011 2 I declare that this thesis is my own account of my own research and contains as its main content work which has not previously been submitted for a degree at any tertiary education institution _____________________ Murray Colin Alder 3 ABSTRACT An important question of public international law unresolved by the existing scholarly debate is whether anticipatory self-defence coexists with the Charter of the United Nations 1945. The debated issue can be simply stated. In 1945, Article 51 of the Charter recognised a state‟s inherent right of self- defence and protected this right against impairment by the treaty‟s operation. However, the article simultaneously preconditioned the exercise of this right on the occurrence of an „armed attack‟. Scholars remain divided as to whether a state may exercise this right after it has suffered such an attack, or whether a state may exercise this right at some time before such an attack. The debate has almost exclusively focussed on an interpretation of Article 51. My thesis shifts the focus from Article 51. I have adopted an historical methodology to focus on the legal nature of the inherent right of self-defence and of the international customary law principles of immediacy and necessity (principles which historically have restricted the exercise of this right). My focus demonstrates how these elements of international law enabled Article 51 in 1945 to authorise a state to exercise its inherent right of self-defence against an imminent threat of armed force. Absent from the existing scholarly debate (and from international law) is a definition of the legal commencement of an armed attack for the purpose of Article 51. Without this definition, the beginning of the very conduct to which the precondition in Article 51 relates remains illusory. This, in turn, continues the 4 uncertainty over the earliest point in time at which the inherent right of self- defence may be exercised under that article. Identifying this point in time is, in my opinion, the underlying legal question debated by scholars. The resolution of this question will consequently answer the question posed by my thesis. 5 TABLE OF CONTENTS Chapter 1 1.1 Introduction 8 1.2 Purpose 14 1.3 Central question of law and supporting questions of law 14 1.4 Methodology 17 1.5 Literature review 19 1.6 Structure 27 Chapter 2 The use of force between states before 1815 – the sovereign right to use war 2.1 Introduction 32 2.2 The rationale for the sovereign right to use war 34 2.3 The division of war into offensive and defensive war 41 2.4 The theory of „just war‟ 44 2.4.1 The limitations of „just war‟ 2.4.2 The legal scope of the sovereign right to use war defensively 2.4.3 The early references to considerations of immediacy, necessity and proportionality 2.4.4 The legal commencement of an armed attack between sovereign states 2.5 Conclusion 65 Chapter 3 The use of force between states – 1815 to 1914 3.1 Introduction 69 3.2 International customary law 70 3.2.1 Instances of the use of war, or force 3.2.2 Peaceful settlement of disputes 3.2.3 Caroline 3.2.3.1 Immediacy 3.2.3.2 Necessity 3.2.3.3 Proportionality 3.3 The legal scope of defensive war 93 3.4 The legal commencement of an armed attack between sovereign states 94 3.5 Conclusion 94 Chapter 4 The use force between states – 1919 to 1939 4.1 Introduction 98 4.2 International customary law – an overview 101 4.2.1 Instances of the use of war, or force 4.2.2 Treaties restricting the use of war 4.2.1.1 Covenant of the League of Nations 1919 4.2.1.2 Geneva Protocol 1924 4.2.1.3 Locarno Treaties 1925 4.2.1.4 General Treaty for the Renunciation of War 1928 4.3 The corollary legal right created by the General Treaty 124 4.4 The inherent right of self-defence 126 4.4.1 The legal scope of the inherent right of self-defence 4.4.2 The legal commencement of an armed attack between sovereign states 4.5 Conclusion 132 6 Chapter 5 The use of force between states – 1945 to the present 5.1 Introduction 138 5.2 The Charter of the United Nations 1945 139 5.2.1 The prohibition of the use, or threat, of force 5.2.1.1 Article 2(4) 5.2.1.2 A new legal right derived from Article 2(4) 5.2.1.3 Chapter VII 5.2.2 The recognition of the inherent right of self-defence and its protection against impairment in 1945 5.2.2.1 Article 51 5.2.2.2 The travaux preparatoires of Article 51 5.2.2.3 The precondition of the occurrence of an armed attack in Article 51 5.3 A legal basis in 1945 for the coexistence of anticipatory self-defence and the Charter 166 5.4 Conclusion 168 Chapter 6 The existing scholarly debate and judicial developments in self-defence after 1945 6.1 Introduction 172 6.2 Scholarly developments 174 6.2.1 On the rationale for the inherent right of self-defence 6.2.2 On the rationale for anticipatory self-defence 6.2.3 On the coexistence of anticipatory self-defence and the Charter 6.2.3.1 The positivist philosophy 6.2.3.2 The realist philosophy 6.2.3.3 The neutralist philosophy 6.2.4 On the definition of an armed attack 6.2.5 Can the views scholarly philosophies be reconciled? 6.3 Judgments of the International Court of Justice 209 6.3.1 The inherent right of self-defence 6.3.2 International customary law principles 6.3.3 Article 51 6.4 Conclusion 217 Chapter 7 State practice in self-defence since 1945 7.1 Introduction 221 7.2 The post-Charter period to 1962 222 7.3 Controversial instances of the use of force after 1962 sought to be justified by Article 51 and the inherent right of self-defence 227 7.3.1 1962-1986 7.3.1.1 Conclusion 7.3.2 1986-the present 7.3.2.1 Conclusion 7.4 Conclusion 291 Chapter 8 Conclusion 296 7 Bibliography Scholarly Texts 304 Journal Articles 312 Cases 318 Treaties 320 Documents 324 Security Council Resolutions General Assembly Resolutions United Nations documents Other documents Domestic Statutes 350 8 Chapter 1 1.1 Introduction A contentious question in international law is whether anticipatory self-defence1 coexists with the Charter of the United Nations 1945. The existing scholarly debate over this question of law is primarily divided into two apparently competing philosophies. Generally, one philosophy asserts that anticipatory self-defence was impliedly extinguished in 1945 because Article 51 of the Charter preconditioned an exercise of the inherent right of self-defence on the occurrence of an armed attack. The other philosophy rejects this literal interpretation of Article 51 because it erodes the concept of self-defence by condemning a state to suffer the physical consequences of an armed attack before exercising its inherent right of self- defence. Article 51 states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.2 The question posed by my thesis is deliberately couched in the same terms as that hitherto debated. However, I suspect this question has not been authoritatively answered because the true question of law which underlies it has not been recognised. This true question is to define the legal scope of the inherent right of self-defence under the Charter in 1945. By „legal scope‟ I mean when and against 1 The term „anticipatory self-defence‟ when used in my thesis describes the legal basis in international law which authorises a state to use armed force against a threat of such force. 2 Charter of the United Nations 1945, opened for signature 26 June 1945, 59 Stat 1031 (entered into force 24 October 1945) hereafter termed „Charter‟. 9 which conduct the inherent right of self-defence could lawfully be exercised at that time. Answering this underlying question of law will answer the question posed by my thesis. The debate shows the reverse not to be the case. I have formed my suspicion because neither philosophy expressly asserts that Article 51 required a state in 1945 to suffer the physical commencement of an armed attack before exercising its inherent right of self-defence. This being so, the debate actually concerns itself with ascertaining the earliest point in time at which international law in 1945 authorised a state to exercise its inherent right of self-defence before being physically attacked. Three things are necessary to answer this underlying question of law. The first is an understanding of the rationale in international law for the inherent right of self- defence3 and for anticipatory self-defence.
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