The Concept of Anticipatory Self-Defense in International Law After the Bush Doctrine

Abstract

The Estonian version of this paper can be found at: http://ssrn.com/abstract=1956681.

According to the Article 51 of the Charter of the United Nations, states have the right of self-defense in case of an armed attack. In interpreting this article, some states have sometimes taken the position that this includes also a limited right to anticipatory self-defense. I explain here what action constitutes anticipatory self-defense and whether a state can appeal to the right of anticipatory self-defense under international law. While doing that I draw distinctions between the following five concepts used in the literature regarding the use of military force in anticipation of an armed attack: precautionary self-defense, preventive self-defense, preemptive self-defense, interceptive self-defense, and anticipatory self-defense. The analysis of international conventions, custom, judicial decisions, and scholarly writings shows that currently, the right of self-defense must still be interpreted in a narrow sense – states are limited in using force in self-defense only to cases where the armed attack has already occurred. This is consistent with the objectives of the Charter of the United Nations, which is the primary source of the states’ right of self-defense to this day. The objectives that states have adopted by joining the United Nations are to maintain international peace and to ensure to the greatest possible extent that armed force is not used in international relations (Article 1 and 2(4)).

Keywords: use of force, preemptive self-defense, anticipatory self-defense, war