Zábranná (pre-emptive) sebeobrana jako mezinárodněprávní hádanka

Bc. Helena Joachimsthalerová

Master's thesis

A Pre-emptive Self-defence as an International Problem

Abstract:

"Pre-emptivní sebeobrana" v mezinárodním právu

Abstract:

This final thesis focuses on pre-emptive self-defense and its place in international public law. The basic question, this thesis is trying to answer, is, whether is possible to justify pre-emptive self-defense under current international law. At the beginning of this paper, the meaning of pre-emptive self-defense is explained. There has been variety of scholarly opinions, sometimes even opposing each other, as to what pre-emptive self-defense means. In current international law theory, there can not be find any broadly accepted and stable definition of pre-emptive self-defense. In this paper I understand pre-emptive self-defense as a subjective right, which allows states to use a force for the purpose of anticipation of future threats. Pre-emptive self-defense differs from right of preventive self-defense, which needs to fulfill the criterion of immediacy of armed attack. First I argue that the notion of pre-emptive self-defense is extremely wide and as a whole concept it can hardly be percepted as lawful. Terrorist attacks on the September 11 inspired considerable discussion in political and academic circles about legality of pre-emptive use of force in fight with the terrorist attacks and the rogue states. That is why this thesis primarily concentrates on the so-called new threats, which pose terrorists groups and rogue states. Next part of this thesis examines a development of the concept of self-defense in historical perspective. The purpose of this chapter is to provide the better understanding of the meaning of provisions of UN Charter as well as customary law. The most important part consists of analysis of current international law. First I examine customary law. In pre-charter law I mainly concentrate on well-known Caroline incident and make a conclusion that under customary law for the state was legal to respond forcefully in the case of immediate threat of armed attack. Adoption of UN Charter as well as subsequent practice did not bring to the end this right of preventive self-defense. But right of pre-emptive self-defense was clearly unlawful under customary international law. According to customary law, attack from an enemy has to be imminent for self-defense to be legal. But some authors support the opinion that imminence criterion is subjective and, in the light of current threats, is outdated. In the situation of the threats of terrorist attacks and the rogue states which possess weapons of mass destruction, it may be too late to prevent an armed attack. This thesis tries to examine, if it is possible to find criterions, which would enable legal use of force in the situation of terrorist threat or the threat of the rogue states. For better understanding of this issue it is necessary to analyze respective practice of states. I also used help of wide range of scholarly opinions from authoritative sources as well as judgments of International Court of Justice that provide valuable interpretation of this controversial question. This paper proceeds with analysis of the United Nation Charter framework and examines, weather pre-emptive self-defense fits into this framework. I based the analyze on precise interpretation of the Article 51 of the UN Charter, which sets out one clear exception from the general prohibition of the use of force. First of all, textual interpretation is used to analyze the meaning of relevant UN Charter provisions by closely examining their texts. Then the purpose and object test is applied to the said provisions. Because neither of these methods of interpretation provides clear and unambiguous conclusions, I also step to examine subsequent practice of states in post-charter period. At the end of this section I summarize, that pre-emptive self-defense does not fit into UN Charter framework and can not be considered legal under international treaty law. Armed action in self-defense under the treaty framework is permitted only when actual armed attack occurs. The concurrence of treaty and custom

Abstract:

ary norms must have been solved. According to Nicaragua case and theory of international law, there exist a complementarity of both rules of conduct. The rule lex specialis derogat generali speaks in favor of the provisions of UN Charter. Final part of this thesis examines the role of condition of proportionality and necessity in connection with pre-emptive self-defense. Customary law, interpretation of UN Charter provisions and the subsequent practice clearly show that pre-emptive self-defense is not permitted under current international law. In the situations of terrorist threats and the danger of weapons of mass destruction, only the collective action of Security Council can protect states from the subjective perception of future threats and the abusement of the right of self-defense.

Keywords

"Pre-emptivní, sebeobrana", v, mezinárodním, právu

Language used: Czech

Date on which the thesis was submitted / produced: 22. 8. 2007

Thesis defence

• Date of defence: 17. 9. 2007
• Supervisor: prof. JUDr. Dalibor Jílek, CSc.

Masaryk University

Faculty of Law

Master programme / field:
Law and Legal Science / Law