PREEMPTIVE SELF-DEFENCE IN PUBLIC INTERNATIONAL LAW: AN ANALYSIS THROUGH THE LENS OF INTERNATIONAL COURT OF JUSTICE JURISPRUDENCE

Abstract

Listen

Translate article

Background: The right to self-defence is one of the fundamental principles of international law, explicitly sanctioned by Article 51 of the Charter of the United Nations. However, the practice of this right, especially on anticipatory or preemptive force, continues to be a contentious issue. Thus, it is questionable to what extent and under what circumstances selfdefence can be applied when dealing with non-state actors and potential threats in the future. This paper seeks to address these worrying issues through primary historical references and legal systems focusing on the guidelines of necessity and proportionality measures. Methods: This study systematically analyses case law, international treaties, and the United Nations Charter 51 to explore how self-defence is perceived in different contexts. It also uses a comparative legal research method, informed by the International Court of Justice (ICJ) decision and subsequent literature. Cases like Nicaragua v. United States, the Iranian Oil Platforms case, and those involving Israel, the United States, and the United Kingdom were consulted to understand the issues of necessity, proportionality, and preventive self-defence. By adopting a case analysis method, this research explores the preliminary concept of self-defence in the legal system of public international law regarding the state practice and as interpreted by the International Court of Justice. The choice of examples, such as the conflict in Ukraine and the armed aggression of Russia and Turkey, Syria, and Iraq, was planned and chosen based on their significance in modern international law. Secondary data sourced from scholarly articles and legal publications complemented this study. Results and Conclusions: According to the data, the right to self-defence is the most significant and one of the most contentious issues in international law. For instance, events like the Six-Day War of 1967 demonstrate how states leverage self-defence purposes to carry out military actions. However, findings made by the International Court of Justice in cases such as Nicaragua v. United States emphasise and uphold the principle of proportionality and reasonability in self-defence arguments. Anticipatory self-defence is still debated, with the Caroline case for defining particular conditions under which anticipatory self-defence is permissible. However, preemptive self-defence continues to spark debate in public international law, with considerable theoretical and practical implications. Russia’s invasion of Ukraine and the tensions between Turkey, Syria, and Iraq contribute to the relativity of the issue in today’s politics and law. For example, the Russian-Ukraine War illustrates adjustments that come with embracing old self-defence theories when the global security environment is metamorphosing. It has brought to the foreground issues related to aggression, deterrence, and the legal use of force in dealing with threats that are perceived to be existential. This case allows for consideration of the role played by the ICJ in establishing the parameters of state conduct, as well as an analysis of the realities of legitimate force. Similarly, the conflicts involving Turkey, Syria, and Iraq show there is a modern trend of utilising anticipatory self-defence as a justification for military actions against non-state actors. They are significant in illustrating how states can maintain their security and simultaneously recognise and uphold the sovereignty of other nations. Additionally, the determination by the ICJ of any such claims assists in understanding the evolving legal regime for these processes. The analysis shows that Article 51 outlines the formal possibility of employing force in self-defence, but at the same time, the interpretation of the given article is often questionable. The international community still faces many challenges defining the differences between preemptive and preventive strikes. The proposal is that nations must be careful while employing self-defence and ensure that what they do is reasonable and necessary concerning the threat. In addition, the United Nations Security Council should actively resolve disputes to reduce the risk of the self-defence doctrine's misuse.