Self-Defense and the Rule of Law
![handle is hein.journals/ajil83 and id is 267 raw text is: SELF-DEFENSE AND THE RULE OF LAW
By Oscar Schachter*
Self-defense on the international level is generally regarded, at least by
international lawyers, as a legal right defined and legitimated by interna-
tional law. Governments, by and large, appear to agree. When they have
used force, they have nearly always claimed self-defense as their legal justi-
fication. Governments disputing that claim have usually asserted that the
legal conditions of self-defense were not met in the particular case. How-
ever, despite the apparent agreement that self-defense is governed by law,
the meaning and validity of that proposition remain open to question.
There are some who challenge the basic idea that the security of a state-its
self-preservation-can and should be subjected to international law. Others
question whether under present conditions the ideal of a rule of law can be
applied on the international level to national security decisions. My aim in
this essay is to explore some aspects of the problem raised by these chal-
lenges to the applicability of international law to claims of self-defense. It is
not my intention, I should add, to consider specific interpretations of self-
defense.
AN INHERENT AND AUTONOMOUS RIGHT?
The idea of self-defense as an inherent and autonomous right has roots in
two distinct schools of thought. One is traditional naturalist doctrine, ex-
pressed, for example, in Grotius's words that [t]he right of self-defence
. . has its origin directly, and chiefly, in the fact that nature commits to
each his own protection ...... Preservation of the self was regarded as a
natural right of the state, as of individuals, that could not be abrogated or
limited by positive law.2 The United Nations Charter has been said to reflect
this in characterizing self-defense as an inherent right. The French ex-
pression, equally authentic, is droit naturel; in Spanish, it is derecho inmanente;
and in Russian, neotemlemoe pravo (indefeasible right).
While acknowledging that the concept inherent right has natural law
origins, many authorities on international law reject the idea that the right
* Of the Board of Editors.
H. GROTIUS, DEJURE BELLI AC PACIS, bk. II, ch. I, pt. III, at 172 (Carnegie Endowment
trans. 1925) (1646).
2 However, characterization of self-defense as a natural right did not mean to Grotius that a
state could invoke it arbitrarily or for reasons of state. See H. Lauterpacht, The Grotian
Tradition, 23 BRIT. Y.B. INT'L L. 1, 30-38 (1946).](ViewImageLocal?handle=hein.journals/ajil83&div=19&collection=&method=preview&ext=.png&size=3)
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Self-Defense and the Rule of Law
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