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| A word of caution to myself in everything I do. |
I would be very disconsolate if anyone, after reading this paper I only wrote to satisfy the requirements of my Defence Studies MSc, starts believing I even doubt the currency of the maxim; "might makes right."
by Kudakwashe Kanhutu
To what extent, if at all, has there emerged a customary legal rule permitting pre-emptive self-defence (as an exception to the prohibition on the use of force in international law)?
Introduction:
The idea that a customary legal rule permitting an action in international relations has emerged, requires us to take a closer look at how customary international law is formed. There are controversies as to how customary law forms, but these controversies do not overburden the subject of this paper as the law on the use of force is well developed. The major issue, with regards this branch of public international law, seems to be differences in the interpretation of what the letter of the law says. As the prohibition on the use of force is codified in the UN Charter’s Article 2 (4), the relationship between treaty law and custom will also yield some useful insights as to whether this Article, in conjunction with Article 51 of the same Charter, have altered or reinforced a pre-existing customary rule of pre-emptive self-defence. The Caroline case of 1837 is cited by most authors as definitive of what pre-emptive self-defence implies (Brownlie, 2008: 734; Sands, 2012: 352) and others actually use it to argue that the right to pre-emptive self-defence has thus always existed as customary international law (Van Den Hole, 2003: 95; Arend, 2003: 89; Franck, 2002: 97).
This paper takes the view that the Caroline case is a specious argument when used as an example of the existence of a customary rule permitting pre-emptive self-defence. Pre-emptive self-defence as articulated in the Bush Doctrine has no legal basis, while anticipatory self-defence which adheres to the imminency, necessity and proportionality criteria of the Caroline case may be defensible in law.
The Prohibition on the Use of Force:
The most important prohibition on the use of force is Article 2 (4) of the UN Charter, which was affirmed to have attained jus cogens status by the International Court of Justice (ICJ) in the Nicaragua case (Gray, 2010: 617). Article 2 (4) itself is not widely contested with regards self-defence, it reads that; “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations” (Gray, 2010: 617). Instead, it is the exception to this prohibition which raises disagreements among those who feel there is a long standing legal rule permitting pre-emption which was not modified by the coming into force of the UN Charter.
Article 51 of the UN Charter allows the right to use force in self-defence as an exception to Article 2 (4). It reads;
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 the 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 (Gray, 2010: 625)
The debate around whether pre-emptive self-defence is permitted after the Charter came into force revolves around the question whether Article 51 has reinforced or altered the customary right to self-defence. The protagonists in this debate look to the language of Article 51 and, depending on their interpretation, either argue that the right exists unaltered or it has been replaced by this treaty provision. I will turn to this debate after first having established how customary law is formed and its relationship to treaty law.
Customary International Law:
The definition of customary international law can be found in Article 38 (b) of the International Court of Justice Statute which refers to it as “international custom, as evidence of a general practice accepted as law” (International Court of Justice). Thus, customary law refers to how “the way things have always been done become the way things must be done” (Thirlway, 2010: 101). This only becomes law if it is seen to be done out of a sense of legal obligation rather than as a courtesy towards other bearers of rights (Thirlway, 2010: 102; Malanczuk, 1997: 39). So, for the formation of customary law, there is a requirement of the existence of these two elements: an established, widespread and consistent state practice accompanied by, opinio juris sive necessitatis – the belief that to do so is required by law (Thirlway, 2010: 102). Evidence of widespread and consistent practice can be found in actual state practice and statements of legal principles, while opinio juris can be found in such things as United Nations General Assembly Resolutions, compatible treaties and, statements made by state representatives (Dixon, 2007).
The first controversy in the formation of customary law arises with regards a paradox noted by Thirlway (2010: 102) that; “how can a practice ever develop into a customary rule if States have to believe the rule already exists before their acts of practice can be significant for the creation of the rule?” There are two ways out of this paradox which are significant for the subject of this paper. The first way articulates the likely origins of opinio juris, as well as, more importantly: the role of other States’ acquiescence or objection in the creation of customary law. The second way out of the paradox is useful for establishing what the rule is in cases such as that of pre-emptive self-defence where there is bound to be insufficient practice.
The first way out of this controversy is as advanced by Cassese (2005: 157) who wrote;
usually a practice evolves among certain states under the impulse of economic, political or military demands. At this stage the practice may thus be regarded as being imposed by social or economic or political needs (opinio necessitatis). If it does not encounter strong and consistent opposition from other states but is increasingly accepted, or acquiesced in, a customary rule gradually crystallizes.
For our subject at hand, a group of states may attempt to use force pre-emptively, compelled by military or political needs, if other states do not object persistently in various international fora available to them, or instead if they actually endorse this activity; a customary legal rule permitting pre-emptive self-defence will then emerge.
The second way out of the above stated paradox is whereby opinio juris is made the essential element and State practice merely evidence, this then would be useful in establishing what customary law is in instances where there is insufficient practice anyway (Thirlway, 2010: 103). Case in point: pre-emptive self-defence would not satisfy the test of widespread and consistent practice anyway because of the nature of the activity. So, by looking at General Assembly Resolutions on the matter, we would then be able to establish whether, although there is no widespread practice, if; opinio juris supports the existence of the rule. It is from this formula that we can argue that anticipatory self-defence (as formulated in the Caroline case and not the Bush Doctrine) is a crystallized customary rule, despite limited practice, because its affirmation in international multilateral fora such as the UN High-Level Panel is evidence of opinio juris. The same formula thus rejects the Bush Doctrine of pre-emptive self-defence as many states objected to it at the same UN High-Level Panel summit. Also, the 120 member countries of the Non Aligned Movement invariably issue statements objecting to this doctrine (Ruys, 2011: 342), so it could not possibly have emerged as a customary legal rule if there is such widespread and persistent objection to it.
The other significant controversy that attaches itself to the discussion of the formation of customary international law is; “regional or particular custom” whereby customary law can emerge because it is particular to either two states or a regional block such as in the early stages of the law concerning space (Klabbers, 2013: 28). These nuances do not apply to the subject of the use of force, because every state in the world is concerned by this branch of law.
The Relationship between Custom and Treaty Law:
Thirlway, (2010: 114) does not see any reference to a hierarchy of sources between custom and treaty in the text of Article 38 of the International Court of Justice Statute. The only possibility he sees of a hierarchy is in this formulation: lex specialis derogat generali: the special rule overrides the general rule (Thirlway, 2010: 113). In that regard, treaty law can be a higher source as “it will normally be the case that a treaty is lex specialis, and as such prevails over any inconsistent rules of customary law, or at least as existed at the time of the conclusion of the treaty” (Thirlway, 2010: 114; Dixon, 2007: 38). An example would be the modifications made to any pre-existing customs that were contrary to Article 2 (4) when the UN Charter came into force (Ruys, 2011: 18). Conversely, should a customary rule accepted as jus cogens emerge, then “any existing treaty which is in conflict with that norm becomes void and terminates” (Thirlway, 2010: 114; Dixon, 2007: 39). What this tells us about the relationship between the two sources is that, in theory, they are capable of replacing or modifying each other. With this in mind we can now turn to the debate about whether pre-emptive self-defence as customary law pre-dates the UN Charter, and if so, has it remained unaltered? This debate as noted above is, in essence, rooted in the different interpretations of what the text of Article 51 of the UN Charter implies.
Anticipatory or Pre-emptive Self-Defence in International Law:
Having looked at how customary law is formed and what that implies for this paper, it is important to now clarify the distinction this paper has made between anticipatory and pre-emptive self-defence. Anticipatory self-defence and pre-emptive self-defence are different in this author’s eyes, even though the existing literature tends to use the terms interchangeably.
Anticipatory self-defence, for this essay, is seen to be as was articulated by the United States Secretary of State Daniel Webster in his exchange of letters with his British counterpart – Lord Ashburton – over the Caroline incident (Franck, 2002: 97; Doyle, 2008: 12). In Webster’s formulation, justifiable anticipatory self-defence arises only when the defender can show the existence of “…necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Brownlie, 2008: 98). This formula then means anticipatory self-defence is permissible when the conditions of necessity, imminency, and proportionality are met. The majority of states are not opposed to use of force that meets this criteria as can be the discerned from Bowen’s logic that “no state can be expected to await an initial attack which, in the present state of armaments, may well destroy the state’s capacity for further resistance and jeopardise its very existence” (Franck, 2002: 98). As was shown above in the section discussing how customary international law forms – despite insufficient practice – states’ opinio juris can be argued to support the existence of this custom. Evidence of such opinio juris can be found in the UN High-Level Panel on Threats Challenges and Change which says that "a threatened State… can take military action as long as the threat is imminent, no other means would deflect it and the action is proportionate" (UK Parliament, 2013). What, on the other hand, is indefensible as customary law; is the so-called Bush Doctrine.
Pre-emptive self-defence, properly conceived, refers to the doctrine articulated post 9/11 by President George W. Bush in his 2002 National Security Strategy (NSS). The aspect that makes it necessary to distinguish this doctrine from the anticipatory self-defence as advanced by Webster in his Caroline incident communications with the British, is that the Bush Doctrine seeks to ignore all the criteria set by Webster and instead sets a new subjective standard. The 2002 NSS document pronounces that;
The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively (The White House, 2002: 15).
This pronouncement, insofar as it seeks to relax the rigour of imminency and necessity, finds no support among even the United States’ closest allies and, again, as was shown above in the section dealing with how customary law forms; objection by a majority of states to a practice or statement of intent will stop a customary legal rule from crystallizing.
To the above Bush Doctrine, the UK Parliament (2013) rejected it and said “it is difficult to find any legal justification for pre-emptive self-defence in international law.” Furthermore, international lawyers and scholars such as Brownlie (2010: 734; Sands, 2012: 352) also say that this doctrine lacks a legal basis. Brownlie (2010: 734) also, further notes that Operation Iraqi Freedom, which came in March 2003 after the doctrine had already been pronounced, was not justified on the basis of this doctrine but, instead on a “revived” Security Council Resolution (SCR) 678. This does not bode well for the existence of a customary rule if the chief proponents of it did not rely on it in a situation which arguably fitted their set criteria.
So, anticipatory self-defence as described above finds a basis in law but the Bush Doctrine of pre-emption does not. With regards to the question whether pre-emption is permitted under customary law today, we still have to look at the arguments advanced by the scholars who defend that position. Their arguments revolve around the proposition that the current technological advances in weaponry and, an expansive interpretation of Article 51 supports the legality of pre-emptive self-defence.
Article 51 and Pre-emptive Self-Defence:
The claim and counter claims as to what Article 51 means is between “restrictionists” and “counter-restrictions.” A “restrictionist” reading of Article 51 would require states to only act in self-defence after an armed attack has commenced or is so imminent that it satisfies the conditions of imminency, necessity and proportionality as set out in the Caroline incident (Doyle, 2008:). “Counter-restrictionists,” on the other hand, argue that there has always existed a legal rule permitting anticipatory self-defence and that this was not modified by Article 51 as the text still refers to the “inherent” right to self-defence (Arend, 2003: 92).
They further argue that the term “armed attack” was just one circumstance that invokes the right to self-defence among others, and to this end they cite Judge Stephen Schwebel’s dissenting opinion in the Nicaragua case that; “Article 51 does not say, if and only if an armed attack occurs” (Arend, 2003: 93). They then factor in technological advances in weapons delivery systems and increased destructiveness of modern weapons so as to allow the right of pre-emptive self-defence more or less as articulated in the Bush Doctrine (Doyle, 2008: 18; Arend, 2003: 97).
The restrictionist view seems to be the one that is supported by international law as it currently stands. The condemnation by both United Nations General Assembly and the Security Council of the Israeli pre-emptive attack on the Iraqi Nuclear Reactor at Osirak in 1981 is evidence that the expansive interpretation does not find support in international opinio juris (Gray, 2010: 628). With regards the concern that the current weapons of mass destruction and the changed environment since 9/11 require a different approach than the restrictionist view permits, this concern was dismissed too. Gray (2010: 631) observes that; “a UN High-level Panel of Experts was set up to respond to the new challenges to the collective security system after 9/11; in its Report of December 2004 it accepted the controversial right of anticipatory self-defence, but firmly rejected the doctrine of pre-emptive self-defence. It said that there is no right to self-defence if the attack is not imminent.” Thus, the counter-restrictionists’ arguments are not supported by existing law.
Conclusion:
This paper has attempted to answer the question whether a customary legal rule permitting pre-emptive self-defence has emerged as an exception to the prohibition to the use of force in international law. Proponents of the view that it has, claim that it has always existed as evinced by the Caroline case and, was not modified or replaced when the UN Charter came into force because Article 51 refers to the “inherent right” to self-defence. Further, they say it is urgent that this rule be recognized because the new threats from Weapons of Mass Destruction and the myriad threats from new actors demand that Article 51 be expansively interpreted. In this essay, such a position has been said to be disingenuous since the Caroline case which they cite actually set the strict criteria of imminency, necessity and proportionality. It also does not reflect customary law because there is neither widespread and consistent state practice nor opinio juris. Israel’s pre-emptive attack on Iraq in 1981 was rejected by the majority of states. The Bush Doctrine was also rejected by the UN and even the United States and its allies did not invoke this doctrine of pre-emptive self-defence when they invaded Iraq in 2003. Because customary law requires widespread state practice and acceptance, any multilateral forum that objects to this doctrine means it will not crystallize. This has been the case with pre-emptive self-defence. Those who are arguing that this rule exists are not arguing on the basis of law as it exists (lex lata) but perhaps with a view to either what the law ought to say (lex ferenda) or on the basis of military or political exigencies (opinio necessitatis).
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| This is not a good look: during an all nighter at the Durham University Library, this would be around 04:30 am |
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