TABLE OF CONTENTS
Title page - i
Declaration - ii
Certification - iii
Acknowledgement iv
Abstract - v
Dedication - vi
Table of Contents vii
Table of Abbreviations xi
Table of Statutes xii
Table of Cases xiii
Glossary - xiv
CHAPTER ONE:
GENERAL INTRODUCTION
1.1 Background to the Study - 1
1.2 Statement of the Problem - 4
1.3 Aim and Objectives 7
1.4 Scope of the Study 7
1.5 Research Methodology - 8
1.6 Justification 8
1.7 Literature Review 9
1.8 Organizational Layout - 30
CHAPTER TWO:
CONCEPTUAL CLARIFICATION
2.1 Introduction 32
2.2 The Meaning and Nature of Self-defence 32
2.3 The Meaning and Nature of War 35
2.4 The Meaning and Nature of Terrorism 38
2.5 The Meaning and Nature of Customary International Law 42
2.6 The Meaning and Nature of Collective Defence - 45
2.7 The Meaning and Nature of Reprisals - - - 49
2.8
The Meaning and Nature of Use of Force
- - 52
CHAPTER THREE:
THE DOCTRINE OF SELF-DEFENCE IN INTERNATIONAL LAW
3.1 Introduction 57
3.2 The Development of the Doctrine of Self-defence - 57
3.2.1 The just war period 58
3.2.2 The positivist period 59
3.2.3 The Kellogg- Briand Pact period 61
3.2.4 The United Nations Charter period 63
3.3. Self-defence in Customary International law 64
3.4. Self-defence in the United Nations Charter 68
3.4.1 Origin of Article 51 of the United Nations Charter - 68
3.4.2 Article 51 of the United Nations charter and some multilateral treaties - 70
3.4.3 Interpretations of article 51 of the United Nations Charter 73
3.5 Relationship between Article 51 of the United Nations Charter and
Customary International Law - 80
3.6 Self-defence as means of protection 88
3.6.1 The right of territorial integrity 89
3.6.2 The right of political independence 92
3.6.3 The right to protection of economic interest 94
3.6.4 The right to protection of nationalities abroad - 97
3.7 Conditions for the Exercise of Self-defence 101
3.7.1 Immediacy 101
3.7.2 Necessity 103
3.7.3 Proportionality 106
3.8 New Categories of Self-defence in International Law 110
3.8.1 Interceptive self-Defence - 110
3.8.2 Anticipatory Self-Defence - 112
3.8.3 Preemptive Self –Defence - 114
CHAPTER FOUR:
THE PRACTICE OF STATES ON SELF-DEFENCE IN INTERNATIONAL LAW
4.1 Introduction 118
4.2 Policies of Some States on Self –Defence in International Law 119
4.2.1 United States 119
4.2.2 Australia 136
4.2.3 Russia- 138
4.2.4 Japan- - 139
4.2.5 France - 142
4.2.6 China - 143
4.2.7 United Kingdom 145
4.2.8 Nigeria - 148
4.2.9 Israel - 156
CHAPTER FIVE:
SUMMARY, FINDINGS, AND CONCLUSION
5.1 Introduction 164
5.2 Summary 164
5.3 Findings - 166
5.4 Suggestions- 172
Bibliography 177
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.4Thus, 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 Immediacy.5 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 force.7 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.