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17 Chinese J. Int'l L. [i] (2018)

handle is hein.journals/chnint17 and id is 1 raw text is: 

8  Chinese JIL (2018)


   29. There is certainly some subsequent practice that was invoked in support of an-
ticipatory self-defence, which appears to go well beyond the Caroline standard. For
example, Israel has claimed anticipatory self-defence in its 1967 attack against Egypt,
its 1975 attack against Palestinian camps in Lebanon,  and its 1981  strike against
Osiraq nuclear reactor in Iraq. This practice has further broadened in recent times,
becoming  part of the so-called Bush Doctrine.
   30. However,  the overwhelming  difficulty with the practice invoked is that it has
yet to meet with the widespread approval of States. Indeed, we may catalogue the fail-
ures. Israel's attack on the Osiraq nuclear reactor in Iraq, for example, led to strong
condemnation   in Security Council Resolution 487 and General Assembly Resolution
36/27. Few  States, even among the coalition of the willing, were prepared to justify
the invasion of Iraq in 2003 on the basis of pre-emptive self-defence. The Six Day
War  gave rise to less overt condemnation, but equally, anticipatory self-defence was
not as strongly invoked and the facts were debated. Given such predominantly nega-
tive responses by the international community, it is difficult to believe any principle
of anticipatory self-defence exists.
   31. The  International Court of Justice has largely avoided the issue. Some legal
scholars take the Nuclear Weapons  advisory opinion to be implicit affirmation of a
right to strike first, but the case does not explicitly say any such thing. The Court
stated that it [could not] reach a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme circumstance of self-defence, in
which  its very survival would be at stake (ICJ Reports 1996, 263, para.97). It would
be drawing a long bow to imagine the Court had jettisoned the requirement of an an-
tecedent armed  attack, particularly when specific reference was made to it earlier in
that advisory opinion. The strictness of the Court's approach to the use of force leaves
no indication of sympathy for anticipatory self-defence. Indeed, in ArmedActivities on
the Territory ofthe Congo, the Court was categorical: Article 51 of the Charter may
justify a use of force in self-defence only within the strict confines there laid down. It
does not allow the use of force by a State to protect perceived security interests be-
yond  these parameters. (ICJ Reports 2005, 223-4, para.148.)
   32. The  legal justification for humanitarian intervention has much in common
with the narrow  approach  to the interpretation of Article 2(4). The final parts of
Article 2(4)-the  phrase or in any other manner inconsistent with the purposes of
the United Nations-is   used to lever human rights considerations into the prohibi-
tion on the use of force. The Charter states in Article 1(3) that the resolution of hu-
manitarian problems  and  respect for human  rights and fundamental  freedoms  are
among  the purposes of the United Nations. Of course, as I noted earlier, for this argu-
ment  to be plausible the final lines of Article 2(4) must be interpreted less as an affir-
mation  of the prohibition, and more as opening a door to certain kinds of permissible
force. This is a difficult position to sustain, and garners little support from State prac-
tice, opinio juris, and the decisions of the ICJ.

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