Academic journal article Canadian Social Science

Self-Defense Right and Anticipatory Self-Defense under the Rules of Contemporaneous International Law and International Practice

Academic journal article Canadian Social Science

Self-Defense Right and Anticipatory Self-Defense under the Rules of Contemporaneous International Law and International Practice

Article excerpt

Abstract

The right of self-defense is one of the most controversial recognized rights in the intentional law. So, there is wide split in the international law concerning the extent of this right. Where we can see the article (51) and what has stated from legal and political problematic issues, concerning the rule of legitimate defense. Also, in the international jurisprudence two primary streams appeared concerning the field of interpreting the text of article (51) from the charter of the United Nations and its relation with article (2). The first steam was expanded in the interpretation for the concept of self-defense to include the preventive self-defense. As for the second stream, it supported the narrow interpretation and it holds the view that the right of self-defense is limited to the case of being exposed to an armed attack. As the people of the supporting orientation hold the view that the international practices ensure the existence of preventive Self-defense right as a fixed right in the rules of customary international law. As for the second stream, it holds the view that the UN charter after its acknowledgment has made a radical change in the use of power in international relations and the use of power became an illegitimate act unless in the case of legitimate self-defense which occurs in the case of being subjected to an actual attack. This research aims study the self-defense and anticipatory self-defense in light of UN charter and international precedents.

Key words: Self-defense; Legitimate preventive defense; The use of armed force

INTRODUCTION

The UN chart involved a unique leap in the field of using power in the international relations. So, according to its item 4 from the second article, it prohibited resorting to using power or threat in a way that contradicts the aims of UN chart.1 It also made the use of power restricted and linked to the exceptions mentioned in chapter 7 which is related to measures of social security and self-defense. It also made the use of power in cases other than the mentioned cases to be considered as an illegitimate act which can be described as an international crime in which international responsibility is a consequence of it if it was classified as aggression. That means that the customary legal rule that was acknowledged by item 4 of article 2 is characterized with a description for the commanding rule "Jus cogans" which can't be violated. This rule represents a binding force in facing all the members of the international community (Erga Omnes). Although that the articles of UN chart that concerns power aimed to prohibit the use of power and the threat of using it in international laws. It also encourages countries to settle their dispute through peaceful means. However, it did not prohibit the use of power completely. In article (51), we can see that the chart included a judgment that enables the use of power without any authorization or license from the Security Council in the case of legitimate self-defense.2

The contemporary international law has acknowledged the principle of prohibiting resorting to war and launching aggression. It also considered the wars in all its kinds and forms to be illegitimate and it formed an international crime, unless in one case which is the case of legitimate defense which was specified by article (51) of the UN charter.

This charter imposed -as a correspondence with the international ideology- conditions that authorized to use power as an exceptional temporary procedure. Whereas, article (51) included a right that authorized the use of power as a self-defense an authorization from the Security Council and that's to happen through regulations and constraints under the aims and principles of the international law. This the situation that was insured by the International Court states in the case of Alavtaúa opinion in 1996 when it concluded that resorting to power should be analyzed through the provisions of the UN chart which article (51) is one of, which ensured the normal right of individual and collective legitimate defense. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.