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ABSTRACT
This dissertation employs the
doctrinal method of research to appraise the doctrine of Self defence as one of
the fundamental principles of International law, and as one of the exceptions
to the prohibition on the use of force. To this end, this dissertation centers
on Article 51 of the United Nations Charter which provides for the right of
self defence in International law. The dissertation contends that the
provisions of Article 51 have generated some controversies among scholars of
International law. These controversies have tended to obscure the scope of self
defence in International law. The major problem of this research is that it is
not clear whether Article 51 has abrogated or preserved the doctrine of
anticipatory Self defence in Customary International law. This problem has been
complicated by the use of the phrases ‘inherent right of individual or
collective self defence’ and ‘armed attack’ in Article 51. The question
therefore is that ‘does international law expect a State to do nothing where it
is a target of an imminent attack’? The objective of this dissertation
therefore is to examine the relationship between Article 51 and rules of
customary International Law, and the circumstances in which the right of self
defence can be exercised. The dissertation makes some findings by submitting
that the doctrine of preemptive Self defence is contrary to Articles 2(4) and
51 of the Charter which prohibits unilateral use of force. Furthermore, both
Article 51 and customary international law provide different rules for the
exercise of the right of self defence .The writer suggests that there is urgent
need for an amendment of Article 51 to bring it in line with current global
challenges to global security. The phrase ‘armed attack’ should be well defined
and the concept of collective self defence should be deleted from Article 51.
GENERAL INTRODUCTION
1.1 Background to the Study
The doctrine of self-defence is one of
the fundamental principles of International law.1 The doctrine of self defence
is common to all systems of law, and generally, as a legal concept, the
function and scope of Self-defence vary with the level of development of each
legal system. Thus, International law which is characterized by lack of
specialized machinery for the enforcement of International law and protection
of the rights of member states has vested the individual member states the
right to use force for the protection of certain essential rights.
However, as International law
advances, as its processes of enforcement and protection become more effective,
the tendency is to allocate duty of protection to a centralized authority such
as the United Nations Security Council, and to restrict the right of unilateral
action by individual member states. However, no matter how effective the means
of protection afforded by the centralized authority is, it will be necessary,
for the protection of certain essential rights, and interests of the state to
invest the states with the right of self defence until the enforcement
machinery of the United Nations (UN) comes to their aid. It is difficult to
envisage a legal system in which the prohibition of recourse to force has no
exception in the form of the doctrine of self-defence. This is the
justification of Self-defence in International law.
In the United Nations system
characterized by a decentralized machinery of its legal system, the enforcement
of International law and the protection of rights recognized by International
law is, traditionally, a task delegated to the individual members, the
sovereign states. Naturally, the right of self-defence in international law
features as the basic and fundamental right of every member state. Within the
last fifty years, international community has moved towards a degree of
centralization hitherto unknown; and with that development the prohibition of
individual use of force has come pari pasu. Thus, the need to define the right of
self-defence with some precision arises from this development, for, as the main
exception to the general prohibition of force, the right of self-defence if
left undefined and unregulated could virtually deny the prohibition on the use
of force any real meaning.
Chapters: 1 - 5
Delivery: Email
Number of Pages: 75
Price: 3000 NGN
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