The Threat of Force as an Action in Self-Defense under International Law

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ABSTRACT

Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this concept under international law is assessed, and the criteria that may regulate it are analyzed. This Article is based on an analogy between traditional "forcible" self-defense and the notion of threats made in self-defense. However, one cannot automatically apply the well-established rules of self-defense to a defensive threat, largely because of the practical differences between a threatened response and a response involving actual force.

TABLE OF CONTENTS
  I. INTRODUCTION
 II. THE THREAT OF FORCE IN INTERNATIONAL LAW
     A. The Source of the Prohibition of the
        Threat of Force
     B. The Jurisprudence of the ICJ and the
        "Coupling" of Use and Threat
     C. Typology of Threats of Force
III. SELF-DEFENSE INVOLVING THE USE OF FORCE
     A. "Traditional" Self-Defense: The Use of
        Force in Response to the Use of Force
     B. Anticipatory and Preemptive Self-Defense:

        The Use of Force in Response to the
        Threat of Force
 IV. IS NON-FORCIBLE SELF-DEFENSE
     CONCEPTUALLY POSSIBLE?
  V. IS THE THREAT OF FORCE IN SELF-DEFENSE
     DESIRABLE?
 VI. THE CRITERIA FOR SELF-DEFENSE INVOLVING
     THE THREAT OF FORCE
     A. In Response to What?
     B. Necessity and Proportionality
     C. Note on Collective Self-Defense
VII. CONCLUSION

A bully is not reasonable.

He is persuaded only by threats.

--Marie de France, late twelfth century

I. INTRODUCTION

The prohibition of the threat of force stands directly alongside its loftier counterpart, the prohibition of the use of force, in Article 2(4) of the United Nations Charter. (1) Yet, although states continually reference the prohibition of the use of military force (even while breaking it), the scope and nature of the prohibition of the threat of force has found little articulation in state practice. This discrepancy is also apparent in the writings of scholars. As such, numerous questions remain unanswered with regard to the status of threats of force in international law. This Article considers one such issue: the relationship between the prohibition of the threat of force and the international law governing self-defense.

In contrast to the legal status of threats of force generally, the lawfulness of forcible self-defense taken in response to a threat of force has been exhaustively, and exhaustingly, discussed in the academic literature. This debate over the lawfulness of "anticipatory" and "preemptive" self-defense has raged all the more fiercely since the atrocities of September 11, 2001, and the subsequent "war on terror." (2) However, the literature has left the inverted question, whether self-defense can be manifested by way of a threat of force, almost entirely unasked. (3) Therefore, it is not our intention to examine the question of whether military force taken in self-defense may be lawful in response to a threat. Instead, we ask whether a threat of force (a prima facie unlawful action under Article 2(4) (4)) can gain the status of lawfulness if taken as a defensive response, and, assuming that it can, we ask what criteria may be used to determine the lawfulness of such a defensive threat. This Article thus examines the legality of threats made in self-defense, which may also be referred to as "countervailing threats. …