Hossein Sharifi Tarazkoohi; Victor Barin Chaharbakhsh
Volume 15, Issue 40 , September 2013, , Pages 9-36
Abstract
While an overwhelming majority of states have hitherto not exercised any form ofanticipatory self-defense, believing that it may lay foundation for an ominousprecedent, the question remains as to why some writers insist on promoting theconcept. As of September 11, there have been increasing louder voices ...
Read More
While an overwhelming majority of states have hitherto not exercised any form ofanticipatory self-defense, believing that it may lay foundation for an ominousprecedent, the question remains as to why some writers insist on promoting theconcept. As of September 11, there have been increasing louder voices pronouncingits legality. Later, the introduction of the so-called preventive self-defense by theUS as a part of its National Security Agenda , rested way beyond the traditionalinterpretation of the Anticipatory Self-Defense. It appears that the historic doctrinaldebate has resurfaced with yet stronger vigor. The present article is an attempt toreview the legality and re-appraise the debate on the notion of anticipatory selfdefense. The article attempts to objectively interpret Article 51 of the Charter inlight of the canons of treaty interpretation with the purpose of finding the customaryinternational law of the time. It then reexamines the Caroline formula and affirmsthat in the absence of widespread and consistent state practice and opinio juris priorto September 11,it has failed to level up or form as a customary rule ofinternational law . The article concludes that although state practice afterSeptember 11 tend to condone the use of force against imminent terrorists attacks,Article 51 of the UN Charter still stands as a valid and effective statute prevailingover the use force mechanism ;and that regardless of the temporal flaws attributedto the International Community case history , a Charter-based world order mayfavorably serve even within the context of challenges ahead in 21st century. Thearticle finally concludes that anticipatory self-defense has not been recognized as astanding norm in International law
