A question of determinacy: the legal status of anticipatory self-defense.

 
TABLE OF CONTENTS 
 
INTRODUCTION 
 
  I. CONTEXTUAL BACKGROUND 
     A. The Concept and Principles of Self-Defense 
     B. Classifying and Clarifying Self-Defense Terms 
     C. Customary International Law and Its Emergent Capacity 
 
 II. PRE-CHARTER CUSTOMARY. LAW, ARTICLE 51 OF THE CHARTER, 
     AND THEIR INTERPLAY 
     A. Pre-Charter Status of Anticipatory Self-Defense 
     B. Meaning and Implications of Article 51 of the U.N. Charter 
        1. Article 51 vis-a-vis Other Charter Provisions 
        2. Article 51 on its Own Terms 
           i. "Armed Attack". 
          ii. "Inherent Right" of Self-Defense 
         iii. Designated Role of the Security Council 
     C.   Reconciling Charter Text with Pre-Charter Customary Law 
        1. Restrictionist Arguments 
        2. Counter-restrictionist Arguments 
        3. Summary 
 
III. DEVELOPMENT AND STATUS OF THE CHARTER-ERA STANDARD 
     BASED ON STATE PRACTICE 
     A. Negotiations of Topically Relevant Agreements 
     B. Enunciated U.S. Doctrines and Policies 
     C. Frequency with Which States Exercise Anticipatory 
        Self-Defense 
     D. Anticipatory Self-Defense Cases: Actions, Justifications and 
        Reactions 
        1. 1962 Cuban Missile Crisis 
        2. 1967 Six-Day War 
        3. 1981 Osirak Nuclear Reactor Attack 
     E. Overall Evaluation 
 
 IV. VIEWS FROM THE INTERNATIONAL COURT OF JUSTICE 
     A. Nicaragua Case (1986) 
     B. Nuclear Weapons Advisory Opinion (1996) 
     C. Oil Platforms Case (2003) 
     D. Congo v. Uganda (2005) 
 
  V. BOTTOM LINE: CURRENT LEGAL STANDARD 
 
CONCLUSION 

INTRODUCTION

This article examines whether, under international law, a State is permitted unilaterally to launch a first strike in self-defense against another State and, if so, under what conditions. (1) Despite the significant government attention this issue has drawn and the extensive scholarship it has generated, the treatment of preemptive force in self-defense (2) is frequently colored by ideology, premised on policy-based reasoning, or characterized by cursory analysis. This article, in contrast, attempts to offer an independent, law-centric, and systematic review of the legal standard governing the use of defensive first strikes in inter-State conflicts. (3) The specific focus of this positive (versus normative) analysis is on "anticipatory" self-defense, which has long resided along the margins of lawfulness.

Part I of this article lays the contextual foundation for this inquiry, including by defining anticipatory self-defense within the overall typology of non-reactive self-defense. Part II explores the status of anticipatory self-defense under the customary international law predating the U.N. Charter (4) as well as the Charter text itself (Article 51 (5)), and then examines the extent to which Article 51 preserved or eclipsed preexisting norms. Part III reviews the development and standing of anticipatory self-defense as a function of post-Charter State practice by reference to a variety of indices and case studies. Part IV considers the views espoused by the International Court of Justice (ICJ), the global community's leading judicial body on matters pertaining to the use of force. Part V draws conclusions about the extent to which anticipatory self-defense between States is permissible today. As this article reveals, this is an area of law that--notwithstanding, or precisely because of, its importance to foreign relations and international security, let alone State survival--remains at its core indeterminate.

I. CONTEXTUAL BACKGROUND

Before exploring the substantive legal standard, one must consider its analytical context. To that end, this article will first examine the concept of and fundamental principles underlying self-defense generally, while distinguishing it from other closely related legal doctrines. Second, to ensure a common working vocabulary, the article will classify and define the various recognized forms of non-reactive self-defense. Third, because the role of customary international law is central to this analysis--it arguably provides the original source and ongoing authority for anticipatory self-defense--the article will briefly consider its principal elements, evidence of its formation, and its role as an agent of change.

A. The Concept and Principles of Self-Defense