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.

11       Background to the Study        -          1

12       Statement of the Problem       -          4

13       Aim and Objectives         7

14       Scope of the Study          7

15       Research Methodology          -          8

16       Justification    8

17       Literature Review            9

18       Organizational Layout           -          30

21       Introduction    32

22       The Meaning and Nature of Self-defence           32

23       The Meaning and Nature of War       35

24       The Meaning and Nature of Terrorism               38

25       The Meaning and Nature of   Customary International Law 42

26      The Meaning and Nature of Collective Defence        -          45

27 The Meaning and Nature of Reprisals - -          -          49

28

The  Meaning and Nature of Use of Force

-          -          52

31       Introduction    57

32       The Development of the Doctrine of Self-defence    -          57

321    The just war period         58

322    The positivist period       59

323    The Kellogg- Briand Pact period       61

324    The United Nations Charter period    63

33      Self-defence in Customary International law      64

34      Self-defence in the United Nations Charter        68

341    Origin of Article 51 of the United Nations Charter   -          68

342    Article 51 of the United Nations charter and some multilateral treaties        -          70

343    Interpretations of article 51 of the United Nations Charter   73

35       Relationship between   Article 51 of the United Nations Charter and

Customary International Law -          80

36       Self-defence as means of protection  88

361    The right of territorial integrity          89

362    The right of political independence   92

363    The right to protection of economic interest       94

364    The right to protection of nationalities abroad           -          97

37       Conditions for the Exercise of Self-defence       101

371    Immediacy     101

37 2    Necessity        103

373    Proportionality                106

38       New Categories of Self-defence in International Law           110

381    Interceptive self-Defence       -          110

382    Anticipatory  Self-Defence   -          112

383    Preemptive Self –Defence      -          114

41       Introduction    118

42       Policies of Some States on Self –Defence in International Law            119

421    United States  119

422    Australia         136

423    Russia-           138

424    Japan- -          139

425    France -          142

426    China  -          143

427    United Kingdom              145

428    Nigeria  -       148

429    Israel   -          156

51       Introduction    164

52       Summary        164

53       Findings -       166

54       Suggestions-   172

The doctrine of self-defence is one of the fundamental principles of International law1

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 pasu4Thus, 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

It is against this backdrop therefore that the writers interest to research in this field is generated noting the fact that the concept of self-defence in   international law   entails certain essentials such as necessity, proportionality,  and Immediacy5  Article 51 of the United

Nations Charter defines self-defence in the following terms:6

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  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

The inclusion of the above provisions in the UN Charter is significant in two main aspects In the first instance, it strongly states that forcible measures (other than self-defence)

which were lawful prior to the Charter do not survive its adoption and entry into force7 This is due to the fact that, unlike the right of self-defence, such forcible measures as reprisals, wars, etc are not affirmed by the provisions of the Charter Secondly, the general wording of Article 51 introduces a new normative dimension to the lawful exercise of the right of self- defence whereby treaties, alongside the established principles of customary international law may now be used to govern the lawful exercise of any self-defence actions

Therefore, by virtue of the foregoing, the objective of this dissertation is to appraise the concept of self defence in international law, and analyze the circumstances in which the right of self defence can be invoked Furthermore, this work articulates the fact that the right of self-defence arises in the event of a breach of a legal duty owed to state acting in self- defence This element is essential if self-defence is to be regarded as a legal concept9 It is this precondition of delictual conduct which distinguishes self-defence from the right of self preservation, right of necessity and other forms of use of force In essence, self-defence is a reaction against a delict (wrong) which violates     certain substantive and essential rights which include territorial integrity and political independence of a sovereign state

The right of self-defence is not absolute The measures of self-defence which may be permissible are subject to the conditions governing the right of self-defence, and these conditions  are necessity,  proportionality,  and  immediately10 These  condition,  are in addition to the conditions stipulated in Article 51 of the Charter Thus, Self defence is subject

to certain conditions against which the validity of any act of Self-defence is tested

Finally, the writer concludes this work by identifying the challenges of the present practice, and proffering viable measures to ensuring an effective understanding of the doctrine and practice of self-defence in international law

There is a wide range of disagreements on the circumstances in which states can resort to force in self-defence Thus, the problem of this research is the scope of self defence in Article 51 of the UN Charter Some of the issues connected to the scope of Article 51 include; the legality of anticipatory and preventive self-defence in contemporary international law, the extent to which self-defence can be exercised against non-state actors, and the legal consequences for the violation of Article 51 of the UN Charter It is intended here to highlight some of these issues

First of all, there are debates as to whether the UN Charter extinguishes the customary right of self-defence or simply preserves it On the one hand, it has been argued that the UN Charter  supplants  or  extinguishes  the  customary  rules  on  self-defence,  and  therefore terminates the right of anticipatory self-defence On the other hand, it has been argued that Article 51 has not subsumed the rules of customary law on self-defence Another aspect of the problems associated with Article 51  relates  to  the scope of armed  attack There is no consensus as to what constitutes armed attack It is this uncertainty around armed attack that gave room for the expansion of Article 51 to include:

1   Preemptive strikes in the face of alarming military preparation    so as to quell any possibility of future attack by another state, even where there is no reason to believe that an attack is planned, and where no prior attack has occurred (preemptive or preventive self-defence)11

2   The use of force against troops, planes, vessels or installations in the event of threats likely to result in imminent attacks, particularly when the state resorting to force has already suffered  an  armed  attack  and  fears  that  more  attacks  are  being  prepared (anticipatory self-defence)12

3   The use of force by a state whose territory or military assets are ostensibly the target

of an attack already launched by another state, in order to halt the attack (interceptive self-defence)13

Unfortunately, these few categories of self-defence have not been expressly captured by Article 51 of the UN Charter Thus, it is a problem in international law on use of force

Secondly, there is an issue as to whether self-defence can be exercised against terrorists (non-state actors)That is, whether terrorist act would constitute armed attack This question is pertinent given the spate of terrorists activities across the globe the implication of which was not contemplated by the drafters of the Charter Thus, in the event of armed attack by a terrorist group such as Boko Haram, how can the right be exercised without violating the rule of non-intervention?

Similarly, since September 11, 2001, the world has seen the emergence of new forms of self-defence that are not based on armed attack These measures of self-defence have

been justified as necessary means to combat terrorism and contain the risk of Weapons of Mass Destruction Since the possession of Weapons of Mass Destruction is not illegal in

International law,14 to what extent can it justify the resort to preemptive use of force?

Article 51 of the Charter has prescribed a role for the Security Council This is to ensure due process and transparency in any resort to use of force by an aggrieved state More also, the Security Council is the only organ of the UN which has the primary responsibility to maintain world peace and security15The state exercising self-defence is required to report to the Security Council Yet the role of the Council is not clear in the case of exercise of preemptive self-defence?

Another issue relates to  cases where international law rules and traditional practices do not clearly apply Terrorists may strike from areas where no governmental authority exists, or they will base themselves behind what they expect will be the sanctuary of an international border16 And they will design their attacks to take place in precisely those gray areas where the full facts cannot be known, where the challenge will not bring with it an obvious or clear- cut choice of response

Finally,  the concepts  of  necessity  and  proportionality are at  the heart  of  self- defence in international law17 However, what will be necessary and proportionate for the purpose of self-defence is not clear These conditions, especially proportionality are important

when the tendency of States to resort to preemptive force is considered

The essence of this research is to examine and appraise the doctrine of self-defence in international law so that the rules governing   the exercise of self-defence can be made clear as much as possible Misconception of the rules of self-defence has led some states to use force even when there is no justification

Therefore, the objective of this dissertation therefore is to discover the reasons for the deviation from the provisions of the U N Charter, and proffer solutions for an effective observance by reference to the following issues: (i) to examine certain concepts that bear resemblance with the doctrine of self-defence (ii) to examine the development of the right of self-defence, nature and scope of Article 51 of the U N Charter, Self-defence as a means of protection, and the categories of self-defence (iii) to examine the role of the U N Security Council in regulating use of force in self-defence and (iv) finally, to highlight the practice of some states on the exercise of self-defence

The scope of this research work is limited to the doctrine of self-defence in International law as well as the practice of states demonstrating the exercise of the right of self-defence

Territorially, the scope  cannot be defined because all the states of the world are concerned However, the scope of the appraisal of state practice will be based on the practice of some states that exert a significant amount of influence in world politics States such as United States, Israel, Russia, China, Britain, France, Australia, Japan, and Nigeria will be discussed for the purpose of analyzing the practice of these states with a view to finding out

whether or not the resort to force in self-defence by states is in conformity with Article 51 of the Charter and rules of Customary International Law

Although there are many methods of research that can be employed to gather facts and information, the dissertation is based doctrinal method of research18  The doctrinal method will involve the use of primary documents and secondary documents The primary documents include  the  Charter,  treaties  and  decisions  of  the  International  Court  of  Justice  and International  Military  Tribunal  whereas  secondary  documents  involve  the  use  of  books, articles and newspapers that have been published Thus, this method will be used to obtain the opinions of experts in international law This, it is believed, will put the discordant concept in a proper context

The significance of this work cannot be overstated considering the fact that the world is now facing new forms of threats to global peace and security Thus, this work on self- defence which is an exception to the prohibition on use of force will identify the boundaries of this doctrine and the circumstances in which it can be relied on to justify the use of force This will instill sanity in the atmosphere of tension and threats of use of Weapons of Mass Destruction

Accordingly, states, public international organization (eg United Nations, African

Union, ECOWAS), and diplomats will benefit from this work It will also benefit ministries of Defence, Foreign Affairs and Police as well as members of the Armed Forces  Legal pundits, academicians and students of international law and international relations will benefit as it will expose them to a very topical issue of international discourse Above all, it is a contribution to literature in this area

There is abundant literature in this field of self-defence in International law This may be due to the fact that fewer areas in international law have attracted the attention of international scholars and jurists than the area of use of force in self-defence

However, there is no better way of starting this review than first reviewing   the work of Bowett (1958),19 one of the early leading authorities in the area of self-defence in international law In this work, the author discusses the nature of self-defence in contradistinction to self- preservation, Necessity and Sanctions imposed by the Security Council, the competent organ of the international community The author noted that the essence of self-defence is that it is reaction against a delict20 In Chapters Two and Three, the author analyses the interests for the protection of which self-defence can be exercised On the basis of the action of the British authorities in the Caroline incident, the author submits that the action of British government was taken by virtue of the right of necessity, though the principles  governing  the  exercise  of  the  right  are  applicable  to  both  necessity and  self- defence21  In Chapter Four, the author discusses the circumstances that will justify an action

in self-defence on the High Seas as well as the protection of nationals Thus, the author

supports the use of force by a state for the protection of its Nationals within the territory of another22

Chapter Six deals with the concept of the defence of economic interest ie whether the right of self-defence can be exercised in respect of a states economic interest The learned author submits that there is logically no reason why such a position should not be admitted23

Thus, self-defence is available in defence of economic interest Chapter Seven deals with the

concepts of Self-defence and War which terms may be indistinguishable but are not entirely the same as far as their legal characters are concerned In this Chapter, the author traces the origin of the prohibition of war as an instrument of nefarious policy, and the emergence of Article 51 of the Charter as an exception   Chapter Eight deals with Neutrality and Self- defence; that is how the doctrine of Self-defence affects neutrality24 For example, it has been noted that neutral state has a duty to assist a state acting in self-defence Chapter Nine deals with the various parts of the provisions of Article 51 of the Charter This brings out the inconsistencies and ambiguities in the provisions of Article 51 of the Charter Finally, in Chapter Ten, collective self-defence is critically considered, its basis and relationship with

other regional arrangements

However, although this work of Bowett (1958) is based on the right of self-defence, there are some odds against it First, the author has justified anticipatory self-defence but he fails to give conditions    that govern its exercise to avoid abuse by more powerful states Secondly, the work has not considered recent challenges to global peace and security such as Terrorism and Weapons of Mass Destruction as they affect the doctrine of self defence

Thirdly,  the  author  refers  to  exercise  of  self-defence  against  imminent  or  actual  attack

Unfortunately, the author has not discussed the recent doctrine of preemption which seems to feature in the practice of states such as the United States since September 11, 2001 Finally, the author failed to consider the recent practice of states on self-defence

The work of Brownlie (1963) 25 is an essential material and a reference point as far as

self-defence in International law is concerned In Part One, the author traces the origin of the legal regulation of the use of force by states prior to 1815,1815-1914 to the period of the emergence of the United Nations Charter In Chapter Three, the work examines the doctrine of self-defence and the state practice of the period 1920 to 1929, the period of the Kellogg Briand Pact and the current period of the UN Charter emphasizing the recognition of self- defence and the reservations made to some of the treaties which were meant to regulate war as an instrument of national policy In Chapter Thirteen, the work examines the right of self- defence in the period after the Second World War Here, the author discusses self-defence in customary international law, especially anticipatory self-defence According to the author, it is generally assumed that customary international law permitted anticipatory action in the face of imminent danger; that Caroline doctrine permitted preventive action in a context in which self-defence was equated with self preservation

However, the author has raised some objections to the use of anticipatory self-defence one of which is that it involves the determination of the authenticity of attack which is very difficult to make26  The author submits that anticipatory self- defence is contrary to the

principle of proportionality27 Brownlie (1963) also disagrees with Bowett (1958) that the use

of force in self-defence is allowed in cases of threats to the political independence of a state constituted by subversion or economic measures28

Furthermore, Brownlie (1963) noted that the view that Article 51 of the Charter does not permit anticipatory action is correct and that the arguments to the contrary are incorrect Lastly, the author examines the various aspect of Article 51 of the Charter such as armed attack, relationship between Article 51 of the Charter and customary international law

This work of Brownlie (1963) is rich and relatively comprehensive and exhaustive given the period it was published However, the view of the author that anticipatory self- defence is not legal may no longer be tenable based on the current global challenges of Terrorism and Weapons of Mass Destruction More also, the author fails to consider the use of preemptive self-defence now used by many states like Israel, United States etc

The International court of Justice has made many pronouncements on the relationship of Article 51 and rules of Customary International law Unfortunately, the decisions are not reflected in Brownlies work Thus, it is believed that some of these decisions may have altered the views expressed in the book Consequently, there is an urgent need for a review of this work given its value and significance as a pacesetter in the gamut of literature on self- defence in International law

Shaw (2008), a contemporary scholar of International Law, is not left out in the review of the literature on self-defence in International law In this work29 of Twenty -Three Chapters,  the  author  designed  Chapter  Twenty to discuss  International  law  and  Use of Force In this chapter, the author highlights the meaning and concept of use of force, the history of use of force, and forms of use of force of which self-defence is one The author deals with the concept of self- defence under Customary International Law; the author highlights the ICJ judgment on the relationship between Article 51 and customary International law30

More also, the author has analyzed the various aspect of armed attack under Article

51  citing  various  decisions  of  the  ICJ  which  are  relevant  to  the  context  It  has  been submitted  that  it  will  be  unacceptable  if  one  concedes  to  the  view  that  self-defence  is restricted to responses to actual armed attacks, and that the concept of anticipatory self- defence is of particular relevance in the light of modern weaponry that can launch attack with tremendous  speed  which  will  allow  the  target  state  little  time  to  respond  to  the  armed

assault31 However, the concept of anticipatory self- defence is still controversial

Shaw noted the suggestions and arguments that have been made in favour of preemptive  self-defence  However,  it  has  been  submitted  by  the  learned  writer  that  the doctrine of preemption must be seen as going beyond what is currently acceptable in international law32 More also, the criteria for the exercise of self-defence are discussed by the author  in detail so as to make them less abstract given the practical significance of the right of self-defence

The author also noted the controversial issue of the exercise of self-defence for the protection of nationals abroad33  It is controversial since there is no armed attack and the

territorial integrity  of the target state is not violated However, State practice shows the

reliance on use of force in self-defence to protect nationals abroad For example, the United States has in recent years justified armed action in other states on the grounds partly of the protection of American citizens abroad

This  work  is  very  useful  and  current  as  it  has  dealt  with  the  contemporary controversial issues surrounding Article 51 of the Charter However, the work has not examined recent states practice to show the effect of the widespread adoption of preemptive self-defence The work merely focuses on a few states such as United States Consideration of state  practice  cutting  across  membership  of  the  UN  is  important  because  it  may be  an indication of the emergence of a new rule of customary international law

However,   the  author   appears  to   support   anticipatory  self-defence   but   rejects preemptive self-defence But this writer is tempted to ask what difference does it make? For practical purposes, no difference appears to exist between the two concepts The author also goes further to give criteria that will guide the exercise of anticipatory self-defence since the Caroline formula may no longer be enough in this Information age

The works of Rehman (2009) 34  and Ladan (2009)35  are replete with materials on

International Human  Rights  Law  and  International  Humanitarian  Law  Both  works  have explored human rights and the rules of engagement in armed conflict situations However, neither of the works discussed the concept of self-defence in International law Although the books provide materials for the rules of engagement in armed conflict, and the legal consequences  of  violation  of  such  rules,36   the  writers  do  not  provide  materials  for  this

controversial area of Self defence in International law 

The work of Harris (2010)37  contains decisions of the ICJ on issues related to self- defence such as Nicaragua v United States (1986), ICJ Report at p14, the Caroline case, Oil platforms case(2003), ICJ Report, at page 161 etc The learned author analyses the provisions of Article 2(4) of the Charter on the prohibition of the use of force, and Article 51 in relation to the judicial pronouncements of the ICJ The writer considers the meaning of

armed attack based on the Nicaragua case noting that not every use of force is an armed attack Even though the courts narrow interpretation of armed attack excludes assistance to rebels in form of provision of weapons or logistical or other support, the learned writer stated that state practice concerning 9/11 accepts that terrorist action on the scale and effect of 9/11 attack on the United States may be armed  attack justifying self-defence against the state

giving the terrorists a base or safe haven38

On the role of the Security Council, the writer    has submitted that the right of self- defence is temporary, existing only until the Security Council acts to restore international peace However, due to the problem of veto, the council may never act and the right of self- defence will be of unlimited duration39

This work    is one of the reference points for the use of self-defence in international

law It has included recent cases and practical illustrations to make the abstract concept much less abstract However, it has not considered the various practices of states on the exercise of self-defence, especially the use of anticipatory or preemptive self-defence More also, the author has not analyzed the decisions so that the principles can be better understood,

and wrong decisions brought to limelight The author relies on state practice to justify the

exercise   of   self-defence   against   state   harboring   terrorists   without   looking   at   some international instruments condemning terrorism as well as resolution of the organs of the UN and other regional organization

Agwu (2005)40  discusses the concepts of Force and self-defence in international law

In chapter Three, the abolition of use of force is discussed while in chapter Four the elements of Article 2(4) of the Charter are considered In chapter Five, the author analyses the components of self-defence under Article 51 of the Charter, and the various interpretations of Article 51 In chapter Six, the practice of state on the use of force are highlighted, and in chapter Eight, the juridical problems in state practice such as extra-territorial self-defence, anticipatory and preemptive self-defence are dealt with

The writer submitted that anticipatory self-defence has been abolished but that state practice still shows indifference to this rule reflecting a conception of the principles of Article 51 as a reservation rather than a grant41The author also gives instances such as in Afghanistan

where the US acted against an imminent attack while in the 1967 Arabs/Israel conflict, Israel acted with force to preempt what she anticipated to be impending Arab attack; thus, this work is commendable for such a tremendous contribution to the principles of self-defence

However, it is submitted that the discussion on anticipatory self-defence is rather terse Consequently, the discussion on the concept of anticipatory self-defence is inadequate More also,  the  authors submission  that  the  doctrine  of  anticipatory  self-defence  has  been abolished  is  misconceived  as  the  view  is  without  regard  to  the  rules  of  Customary

International Law on self-defence and current global challenges

The work of OConnell (1965)42 on International law is also resourceful In this book, the author said that a corollary of the right to independence is the right of self-defense, a right fundamental in every legal system The author     further submits that in the Renaissance period, the formulation of the right of self-defence was much less difficult than it has come to be today because the intrinsic connection with the concept of the Just war made its control relatively self-evident, or so the writers pretended However, the earlier writers, the author submits, failed to offer any guidance on the degree of injury necessary to justify resort to force in self-defence

The author stated further that self-defence is not a satisfactory juridical conception if it allows for anticipatory action on the part of a state which fears that its security is imperiled On self-defence as defined in Article 51 of the UN Charter, the author submits that the problem with Article 51 is whether or not it restricts the traditional right of self-defence to those occasions when an armed attack has actually occurred, and until the United Nations has taken  the  relevant  action  According to  the  author  the debate  is  relevant  because  of its implications with respect to acts of self-defence not amounting to repulse of an armed attack The author opines that there is no right of self-defence for states except that of Article 51, then even a well established doctrine such as that of the Caroline might be found to have been abrogated According to the author, in analyzing Articles 51of the Charter , it must be first noted that it acknowledges the inherency of the right to self-defence, and it seems   that proper interpretation must take into account a basic natural law right beyond the abrogating

power of the Charter

Finally, the author submitted that there is a link between the notion of self-defence and the right to territorial integrity and political independence of UN members, and the violations of these rights legitimize action in self-defence Furthermore, on the issue of extra-territorial jurisdiction in exercise of the right of self-defence, the author advanced a view that it is impracticable to expect a state to stand by and await attack which is obviously impending, and that the law cannot require it to do so Measures of self-defence are proportionate to the danger, and they may involve technical violation of the frontier across which attack is expected

However, one major loophole in this work of    OConnell is that the author  did not fully discuss  the doctrine of anticipatory self-defence  The     author  only alluded  to  the doctrine even though the author stated that the law cannot expect a state to stand by while there is an impending threat, not necessarily an armed attack More also, even though the author discusses the   argument for or against the strict interpretation of Article 51, the author did not give or maintain a position More importantly, this work having been written much earlier than the aftermath of September 11, 2001 attack, it has not taken some new development such as the doctrine of preemption (Bush doctrine) into account

A distinguished jurist of international law, Schwarzenberger (1968)43, wrote on the principles of self-defence In Chapter Two of the book, the writer discussed self-defence as one of the seven fundamental principles of international law In the light of judgments of the International Military Tribunals of Nuremberg (1946) and Tokyo (1948), the author examined

the meaning of self-defence and submitted that it involves a preventive action in foreign

territory which is justified only in case of an instant and overwhelming necessity for self- defence, leaving no choice for means, and no moment for deliberation The author   also did a verification of the exercise of self-defence and examined self- defence and necessity and putative self-defence

On the scope of self-defence, the author submitted that if the conditions of self- defence are fulfilled, the right of self-defence overrides any competing rights of the target state in international customary law However, the issue of anticipatory self-defence has not been dealt with by the author The authors    discussion did not go beyond the traditional conception of self-defence Verily, such an important topic as anticipatory self-defence cannot be ignored when discussing self-defence and the use of force

The loophole can be traced to the period the book was written as it could not have contemplated  recent  development  in  international  law,  especially the  increasing  spate  of terrorism and the quest for Weapons of Mass Destruction More also, there is need for a review of the book because most of the illustrations and concepts are based on the facts available as far back as 1960s

There is an article written by Obayemi44      on the legal standards of self-defence The author started by introducing the history of the doctrine of self-defence The  author said the United States has never unilaterally attacked another nations military prior to its first having been attacked or prior to its citizens or interest first having been attacked But that this posture

has changed permanently Hence, the emergence of   the Bush Doctrine

On the issue of right of self-defence, anticipatory attacks, military incursions, and/or right of pre-emptive strike, the author submitted that the state seeking to take action on any of these grounds must bear a high burden of establishing the following elements which are as follows:

1   That the nation against which military action is being considered poses an actual and/or immediate risk to:

a   Their neighbours,

b   international peace, and

c   international community of states;

2   The nation arguing for military invasion of a failed state must have suffered an injury in fact

3   There must be a causal connection between the actual or imminent injury and/or risk alleged and the fact that the second state has failed as a nation; and

4   The actual or immediate risk of injury posed by failed states would be redressable through foreign  intervention,  either  by the  United  Nations  or  through  an  International  action authorized by the UN

On satisfaction of the above elements, through evidence satisfying the beyond reasonable doubt standard, the United Nations or any other aggrieved state may move to initiate military action against non-state terrorist fugitives and rogue states Furthermore, the author  considered  the  right  of  self-defence  including  pre-emptive  strikes  and  forcible measure of self-defence under customary international law He submitted that clearly every nation possesses the inherent right of self-defence in International law  And the author traced the legitimate use of pre-emptive military force in accordance with international law to the

then secretary of state contained in a diplomatic correspondence with the British government Consequently,  certain  requirement  for  a  nation  to  undertake  pre-emptive  strikes  against another nation based upon perceived imminent danger (as different from anticipatory military strike  which  is  based  on  latent  and  remote  danger)  include  (a)  timeliness and  (b)

proportionality of the threat The author stated that although used intermittently, the concept of anticipatory self-defence and pre-emptive strike are two distinct and separate topics of international law

The author also examines the right of self-defence including resort to pre-emptive and anticipatory strike under the United Nations Charter Thus, the author appraises the constituents of Article 51 of the Charter The author concludes that written laws, whether international treaties or domestic laws cannot override a nations right to self-preservation Finally, the author considers the development of the right of self-defence by the United States

However, in as much as states have the right to self-preservation, it is submitted that states must honor and respect their obligations in International law as a state cannot rely on its municipal  laws  to  avoid  fulfilling its  international  obligation  The UN Charter  of 1945, particularly Article 51 imposes an obligation on states to exercise restraint in cases of conflict As such, an armed attack is necessary before a target state can resort to use of force Any state that reneges on this obligation will be found wanting for state responsibility

Again, the author attempted to lay down some elements to guide the exercise of anticipatory or preemptive self-defence But the tests the author laid down are confusing He stated timeliness and proportionality' of threat as the requirement for pre-emptive strike On

the other hand, he laid down four elements which must be established beyond  reasonable doubt before a state can take anticipatory or pre-emptive strike

Thus, the guidelines for the resort to use of force on account of anticipatory self- defence are not certain Therefore, there is need for the author to ascertain the elements for all practical   purposes for the exercise of the right to anticipatory self-defence

Kritsiotis (1996)   has a work titled, “The legality of the 1993 US Missile Strike on Iraq and the Right of Self-Defence in International Law”45 After the usual introduction, the author submitted that the comprehensive proscription by the UN Charter of the Use of force by states in their relations with one another is widely understood to be a rule of customary international law and has been advanced as a rare exemplar of the concept of jus cogens However, the general prohibition on the use of force in Article 2(4) of the Charter is subject to the exception within the framework  of the charter The  author  added  that  Article 51  provides  for the inherent right of individual or collective self-defence

Furthermore, the author discussed the concept of self-defence under customary international  law  and  the  UN  Charter  Under  customary  international  law,  the  author identified three criteria which determine the justification for exercise of self-defense They are; Necessity,  immediacy, and proportionality Similarly, under the UN Charter, the author considered some conditions such as The occurrence of an armed attack, the target

of the armed attack, and finally there is the Reporting clause

Finally, the author submitted that the invocation of the rights of self-defence by the United States in defence of its action on 26 June, 1993 does not conform to any conventional understanding of the concept of self-defence, and to this extent, it is difficult to reach the conclusion that the American Missile Strike of June 1993 was in strict compliance with international law, and that the retaliatory nature of the strike strongly suggest that it was a de facto  reprisal which would ordinarily have no basis in international law

However, on a critical appraisal of the work, it becomes apparent that the author holds the  view  that  missile  strike  cannot  be  justified  in  international  law,  especially  when considered in the light of the action of the US in recent years More so, the author did not address the issue of anticipatory self-defence The author only considered the right to self- defence under customary international law Thus, this omission makes the work bereft of the recent development in international law Additionally, even though the work is on “The legality of the 1993 US missile strike on Iraq and the right of self-defence in International Law”, it is silent also on the new bush doctrine which appears to feature in most military action taken by the US in recent years

Van den Hole (2005) 46 has contributed to the discourse on anticipatory self-defence In the introductory part, the author stated the law of recourse to force has changed dramatically over the last centuries Hence, the emergence of the new doctrine of anticipatory self-defence The author defined the word anticipatory as a term that refers to the ability to foresee consequences of some future action and take measures aimed at checking or countering those

consequences

The article is divided into Four Chapters (parts)Part One deals with the question of whether Article 51 of the UN Charter which explicitly refers to the right of self-defence in armed conflict,  extinguishes  the customary International  law of self-defence  The author submitted that the Article 51 of the Charter leaves the customary right of self-defence unimpaired Part II of the article states that anticipatory self-defence is just one of the many forms of self-defence, and that it is legitimate to expect a state to use force in anticipation of armed  attack  Part  Three  looks  at  reports  and  judgments  of  the  UN  authorities,  which explicitly recognize that states have the right to use pre-emptive force Finally, Part Four presents the conditions under which international law will accept the plea of anticipatory self- defence

The author submitted that the classical definition of the Caroline case is still relevant for anticipatory self-defence today More so, the preconditions set in the Caroline case have been extended to the right of Self-defence in general, which is quite logical, as the right of anticipatory self-defence is only a form of the more general customary right of self-defence, and the conditions for the application of both rights have to be more or less the same The author    identified    certain    condition    for    anticipatory    self-defence    as:    'necessity',

proportionality, and immediacy  Additionally, the author   said it seems reasonable to add two more conditions: First, an action of anticipatory self-defence   will only be justified if the UN Security Council has not yet taken action; and second, the state against which the right of anticipatory self-defence is being exercised has to be in breach of international law

Van den Hole may be commended for his exhaustive work on the doctrine of anticipatory self-defence This book has helped to put this doctrine in a proper perspective Additionally,

this work is a product of in-depth research as it has incorporated recent events demonstrating the recognition now enjoyed by the doctrine of anticipatory Self defence

The Myth of Pre-emptive Self-Defence47  written by Mary Ellen OConnel is relevant to the research at hand After the