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40 Geo. J. Int'l L. 523 (2008-2009)
A Question of Determinacy: The Legal Status of Anticipatory Self-Defense

handle is hein.journals/geojintl40 and id is 527 raw text is: A QUESTION OF DETERMINACY: THE LEGAL STATUS OF ANTICIPATORY SELF-DEFENSE DAVID A. SADOFF* TABLE OF CONTENTS INTRODUCTION ........................................ 524 I. CoNTExTUAL BACKGROUND ........................... 525 A. The Concept and Principles of Self-Defense ............. 525 B. Classifying and Clarifying Self-Defense Terms ............ 529 C. Customary International Law and Its Emergent Capacity... 532 II. PRE-CHARTER CUSTOMARY LAW, ARTICLE 51 OF THE CHARTER, AND THEIR INTERPLAY ............................... 534 A. Pre-Charter Status of Anticipatory Self-Defense .......... 535 B. Meaning and Implications of Article 51 of the U.N. Charter. 540 1. Article 51 vis-A-vis Other Charter Provisions ...... 541 2. Article 51 on its Own Terms .................. 545 i. Armed Attack .......................... 545 ii. Inherent Right of Self-Defense .............. 549 iii. Designated Role of the Security Council ......... 549 C. Reconciling Charter Text with Pre-Charter Customary Law.. 550 1. Restrictionist Arguments .................... 551 2. Counter-restrictionist Arguments ............. 553 3. Sum m ary ................................ 556 III. DEVELOPMENT AND STATUS OF THE CHARTER-ERA STANDARD BASED ON STATE PRACTICE ........................... 557 A. Negotiations of Topically Relevant Agreements .......... 558 B. Enunciated U.S. Doctrines and Policies ............... 560 C. Frequency with Which States Exercise Anticipatory Self-Defense ................................... 562 D. Anticipatory Self-Defense Cases: Actions, Justifications and Reactions .................................... 563 1. 1962 Cuban Missile Crisis .................... 563 2. 1967 Six-Day War.......................... 566 * The author is a doctoral candidate in Public International Law at the Universit6 de Genve in Switzerland. He formerly served as Deputy Legal Adviser to the National Security Council and as Assistant General Counsel at the Central Intelligence Agency. All statements of fact, opinion, or analysis expressed herein are entirely his own and are not attributable to the U.S. Government in whole or in part. The author expresses his gratitude to Professor Robert Kolb for his helpful comments and insights. © 2009, David A. Sadoff.

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