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19 Am. U. Int'l L. Rev. 69 (2003-2004)
Anticipatory Self-Defence under International Law

handle is hein.journals/amuilr19 and id is 83 raw text is: ANTICIPATORY SELF-DEFENCE UNDER INTERNATIONAL LAW LEO VAN DEN HOLE* IN TR OD U CTION ............................................... 70 I. ARTICLE 51 OF THE U.N. CHARTER PRESCRIBES CONDITIONS FOR THE EXERCISE OF A PRE-EXISTING, INHERENT RIGHT OF SELF-DEFENCE, RECOGNIZED IN CUSTOMARY INTERNATIONAL LAW ................... 73 A. THE CHARTER'S DRAFTERS DID NOT INTEND TO RESTRICT BROADER NOTIONS OF TRADITIONAL SELF-DEFENCE ...... 75 B. THE PLAIN LANGUAGE OF ARTICLE 51 DOES NOT SEEK TO RESTRICT BROADER NOTIONS OF SELF-DEFENCE .......... 78 II. THE PRESCRIBED RIGHT OF SELF-DEFENCE DOES NOT EXCLUDE THE RIGHT TO TAKE ANTICIPATORY A C T IO N ................ ................................. . 80 A. THE RESTRICTIVE INTERPRETATION OF ARTICLE 51 ........ 84 B. POLICY CONSIDERATIONS OF THE RESTRICTIVE SCHOOL ... 86 C. PRETEXT CONCERNS ...................................... 87 D. DANGER OF AMBIGUITY .................................. 87 E. BALLISTIC MISSILE CONCERNS ............................ 88 III. GUIDANCE BY UNITED NATIONS AUTHORITIES ABOUT THE RIGHT OF ANTICIPATORY SELF-DEFENCE ....... 90 A. PRE-EMPTIVE FORCE IN ANTICIPATION OF A NUCLEAR S T R IK E ................................................... 9 1 B. UNDECLARED CONSENSUS? ............................... 92 C. NICARAGUA V. UNITED STATES ........................... 93 IV. CONDITIONS FOR THE EXERCISE OF THE RIGHT OF ANTICIPATORY SELF-DEFENCE ......................... 95 A. CAPACITY OF THE SECURITY COUNCIL .................... 98 B. FLOUTING INTERNATIONAL LAW .......................... 98 This article is based on a paper that the author wrote under the supervision of Prof Dr. Thomas M. Franck at NYU Law School in December 2002. The views expressed in this article are personally attributable to the author and in no way engage Prof. Dr. Thomas M. Franck or NYU Law School. The author thanks Mr. Tzvika Nissel for the proofreading.

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