An Appraisal Of The Doctrine And Practice Of Self-Defence In International Law

An Appraisal Of The Doctrine And Practice Of Self-Defence In International Law

Abstract

This dissertation employs the doctrinal method of research to appraise the doctrine of Self defence as one of the fundamental principles of International law, and as one of the exceptions to the prohibition on the use of force. To this end, this dissertation centers on Article 51 of the United Nations Charter which provides for the right of self defence in International law. The dissertation contends that the provisions of Article 51 have generated some controversies among scholars of International law.

These controversies have tended to obscure the scope of self defence in International law. The major problem of this research is that it is not clear whether Article 51 has abrogated or preserved the doctrine of anticipatory Self defence in Customary International law. This problem has been complicated by the use of the phrases ‘inherent right of individual or collective self defence’ and ‘armed attack’ in Article 51. The question therefore is that ‘does international law expect a State to do nothing where it is a target of an imminent attack’? The objective of this dissertation therefore is to examine the relationship between Article 51 and rules of customary International Law, and the circumstances in which the right of self defence can be exercised.

The dissertation makes some findings by submitting that the doctrine of preemptive Self defence is contrary to Articles 2(4) and 51 of the Charter which prohibits unilateral use of force. Furthermore, both Article 51 and customary international law provide different rules for the exercise of the right of self defence .The writer suggests that there is urgent need for an amendment of Article 51 to bring it in line with current global challenges to global security. The phrase ‘armed attack’ should be well defined and the concept of collective self defence should be deleted from Article 51.

Table of Contents

• Title page
• Declaration
• Certification
• Acknowledgement
• Abstract
• Dedication
• Table of Contents
• Table of Abbreviations
• Table of Statutes
• Table of Cases
• Glossary

Chapter One:

General Introduction

• 1.1 Background to the Study
• 1.2 Statement of the Problem
• 1.3 Aim and Objectives
• 1.4 Scope of the Study
• 1.5 Research Methodology
• 1.6 Justification
• 1.7 Literature Review
• 1.8 Organizational Layout

Chapter Two:

Conceptual Clarification

• 2.1 Introduction
• 2.2 The Meaning and Nature of Self-defence
• 2.3 The Meaning and Nature of War
• 2.4 The Meaning and Nature of Terrorism
• 2.5 The Meaning and Nature of Customary International Law
• 2.6 The Meaning and Nature of Collective Defence
• 2.7 The Meaning and Nature of Reprisals
• 2.8 The Meaning and Nature of Use of Force

Chapter Three:

The Doctrine of Self-Defence in International Law

• 3.1 Introduction
• 3.2 The Development of the Doctrine of Self-defence
• 3.2.1 The just war period
• 3.2.2 The positivist period
• 3.2.3 The Kellogg- Briand Pact period
• 3.2.4 The United Nations Charter period
• 3.3. Self-defence in Customary International law
• 3.4. Self-defence in the United Nations Charter
• 3.4.1 Origin of Article 51 of the United Nations Charter
• 3.4.2 Article 51 of the United Nations charter and some multilateral treaties
• 3.4.3 Interpretations of article 51 of the United Nations Charter
• 3.5 Relationship between Article 51 of the United Nations Charter and Customary International Law
• 3.6 Self-defence as means of protection
• 3.6.1 The right of territorial integrity
• 3.6.2 The right of political independence
• 3.6.3 The right to protection of economic interest
• 3.6.4 The right to protection of nationalities abroad
• 3.7 Conditions for the Exercise of Self-defence
• 3.7.1 Immediacy
• 3.7.2 Necessity
• 3.7.3 Proportionality
• 3.8 New Categories of Self-defence in International Law
• 3.8.1 Interceptive self-Defence
• 3.8.2 Anticipatory Self-Defence
• 3.8.3 Preemptive Self –Defence

Chapter Four:

The Practice of States on Self-Defence in International Law

• 4.1 Introduction
• 4.2 Policies of Some States on Self –Defence in International Law
• 4.2.1 United States
• 4.2.2 Australia
• 4.2.3 Russia
• 4.2.4 Japan
• 4.2.5 France
• 4.2.6 China
• 4.2.7 United Kingdom
• 4.2.8 Nigeria
• 4.2.9 Israel

Chapter Five:

Summary, Findings and Conclusion

• 5.1 Introduction
• 5.2 Summary
• 5.3 Findings
• 5.4 Suggestions
• Bibliography

Table of Abbreviations

1. U.N – – – – United Nations
2. U.S – – – – United States
3. W.M.D – – – – Weapons of Mass Destruction
4. I.C.J. – – – – International Court of Justice
5. ECOWAS – – – Economic Community of West African States
6. P.M.A.D – – – – Protocol relating to Mutual Assistance on Defence
7. F.P.C. – – – – Foreign Policy Concept
8. A.U. – – – – African Union
9. P. – – – – Page
10. PP. – – – – pages
11. Vol. – – – – Volume
12. Ibid. – – – – Ibidem
13. Op. Cit. – – – – Opere Citato
14. Art. – – – – Article
15. O.A.S. – – – – Organisation of American States
16. P.C.I.J. – – – – Permanent Court of International Justice
17. R.U.F – – – – Revolutionary United Front
18. U.N.E.F – – – – United Nations Emergency Force
19. N.D – – – – No date

Table of Statutes

1. UN Charter,1945, – – – – – Articles2(4),51,52
2. North Atlantic Treaty– – – – – Article V
3. International Law Commission Draft Articles on State responsibility, 1996 – – – – – Articles 30, 47,48,49,50.
4. Additional protocols to the Hague Conventions,1977- Articles 48,50,51
5. The Ecowas Mechanism – – – – Article3(b),25
6. The I.C.J. Statute – – – – – article 38
7. The Japanese Constitution – – – – Section 9
8. Draft Code of Offences against the Peace and Security of mankind – – – – – – Article 2(4)(8)
9. Covenant of the League of Nations – – – Article 10
10. The Rome Statute – – – – – Articles 5,8

Local Legislation

1. The 1999 Constitution of the Federal Republic of Nigeria (as amended – – – – – – Section 19)
2. Penal Code law of Northern Nigeria – – – Section 59

Table of Cases

1. North Sea Continental Shelf Cases (1969)I.C.J. P.3 – – – 44
2. Lotus Case (1927) PCIJ, Series A, No.10,p.10 – – – 45
3. Armed Activities Case (2005),I.C.J. Report P. 186 – – – 108
4. Iran v. Unites States (2003) I.C.J. Report P. 161 – – – 76,86
5. Nicaragua v. United States (1986), I.C.J. Report, P.14 – – 126
6. Nuclear Weapons Case (1996) I.C.J Report, p.226 – – – 105,126
7. In The Construction of a Wall Case (1986)I.C.J Report,p543- – 126,159

Glossary

1. Opinio Juris …the psychological factor
2. Jus Cogens ….Peremptory Norm
3. Jus ad Bellum …..laws governing resort to force
4. Jus In Bellum …laws regulating conduct of hostilities
5. Travaus Preparatories …….Preparatory work
6. Prima facie …..on the face of it
7. Inter alia…..among other things
8. Strictu Sensu ….. in the strict sense
9. Boko Haram ……Jama at Ahlal- Sunna Lil- Da‟awah wal al-Jihad.

Chapter One

General Introduction

1.1 Background to the Study

The doctrine of self-defence is one of the fundamental principles of International law.1 The doctrine of self defence is common to all systems of law, and generally, as a legal concept, the function and scope of Self-defence vary with the level of development of each legal system. Thus, International law which is characterized by lack of specialized machinery for the enforcement of International law and protection of the rights of member states has vested the individual member states the right to use force for the protection of certain essential rights.

However, as International law advances, as its processes of enforcement and protection become more effective, the tendency is to allocate duty of protection to a centralized authority such as the United Nations Security Council, and to restrict the right of unilateral action by individual member states. However, no matter how effective the means of protection afforded by the centralized authority is, it will be necessary, for the protection of certain essential rights, and interests of the state to invest the states with the right of self defence until the enforcement machinery of the United Nations (UN) comes to their aid. It is difficult to envisage a legal system in which the prohibition of recourse to force has no exception in the form of the doctrine of self-defence. This is the justification of Self-defence in International law.

In the United Nations system characterized by a decentralized machinery of its legal system, the enforcement of International law and the protection of rights recognized by International law is, traditionally, a task delegated to the individual members, the sovereign states. Naturally, the right of self-defence in international law features as the basic and fundamental right of every member state. Within the last fifty years, international community has moved towards a degree of centralization hitherto unknown; and with that development the prohibition of individual use of force has come pari pasu. Thus, the need to define the right of self-defence with some precision arises from this development, for, as the main exception to the general prohibition of force, the right of self-defence if left undefined and unregulated could virtually deny the prohibition on the use of force any real meaning.

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