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Published online by Cambridge University Press: 09 June 2015
For those who believe in the values of liberalism and democracy the state is under a political obligation to seek the common welfare of its citizens. In furtherance of this domestic duty, it retains among its external rights and powers that right of self-defense which has been assigned to states under other ideologies.
1. 26 June 1945, Can. T.S. 1945 No.7,59 Stat. 1031, 145 U.K.F.S. 805. To what extent the Charter supersedes or restricts the customary right of self-defense is an unresolved question among international lawyers; see Akehurst, Michael, A Modern Introduction to International Law, 6th ed. (London: George Allen & Unwin, 1987) at 261–65,Google Scholar and Shaw, Malcolm N. International Law, 3d ed. (Cambridge: Grotius Publications, 1991) at 693.Google Scholar
2. See McKenna, Joseph C., “The just war” in Rachels, James, ed., Moral Problems, 3d ed. (New York: Harper and Row, 1979) 382 at 382-83.Google Scholar
3. With reference to self-protection in the Model Penal Code see Gross, Hyman, A Theory of Criminal Justice (New York: Oxford University Press, 1979) at 178–81.Google ScholarPubMed
4. For a brief treatment of the Catholic doctrine of self-defense which takes account of the double-effect argument see the article “Self-defense” in The New Catholic Encyclopedia (New York: McGraw-Hill, 1967), vol. XIII at 60-61. It is worth noting that intended killing in self-defense may be permissible, according to Catholic doctrine, on the basis of a collision of rights.
5. In the rest of this paper I use the word “war” fairly freely even though it is increasingly rare for war actually to be declared in the contemporary world. Morally, however, the existence of war as a matter of fact is more significant than its juridical status; legally, it should be noted, the laws of war generally apply to a hostile conflict whether or not war has been formally declared.
6. It may even be thought the only kind of just war. Walzer, Michael has claimed that the defense of rights is the only reason for fighting; see his Just and Unjust Wars (Harmondsworth: Penguin Books, 1980) at 72.Google Scholar
7. Bowett, D.W., Self-Defence in International Law (Manchester: Manchester University Press, 1958) at 10.Google Scholar
8. Greig, D.W. advanced the view that under customary international law self-defense is (or was) only a special application of the plea of necessity. On this point see his International Law, 2d ed. (London: Butterworths, 1976) at 883.Google Scholar
9. Franck, Thomas M., The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990) at 76.Google Scholar
10. Lucas, J.R. The Principles of Politics (Oxford: Clarendon Press, 1966) at 65.Google Scholar
11. The principle of the “sovereign equality” of all states is constantly reiterated in international documents.
12. “Self-defence is a principle which applies to states no less than to individuals; and the legal content of the principle is clear, though its application in a specific case may be a matter of difficulty.”This statement from Brierly’, J.L.s classic text The Law of Nations, 6th ed. by SirWaldock, Humphrey (Oxford: Clarendon Press, 1963) at 404, is as good an example of the standard position as anyGoogle Scholar. Contrast Beitz, Charles R., Political Theory and International Relations (Princeton, N.J.: Princeton University Press, 1979) at 52.Google Scholar
13. See Kelsen, Hans, “Collective security and collective self-defense under the Charter of the United Nations” (1948) 42 Am. J. of Internat’l L. 783 at 792.CrossRefGoogle Scholar
14. For Clausewitz, of course, “defensive” and “offensive” were descriptive characteristics of tactics in war rather than evaluative standards for wars themselves. A war of pure self-defense and nothing more, “in which victories are merely used to ward off blows, and where there is no attempt to return the blow”, would have seemed absurd. See Clausewitz, Carl von On War, trans. Graham, J.J. (London: Routledge & Kegan Paul, 1962), vol. II at 134-36.Google Scholar
15. Walzer, supra note 6 at 62.
16. Walzer, treated the first case at length in “World War II: Why Was This War Different?” (1971) 1 Phil. & Publ. Affairs 3,Google Scholar reprinted in Cohen, Marshall and others, eds, War and Moral Responsibility (Princeton, N.J.: Princeton University Press, 1974), esp. at 85–93;Google Scholar for the second case see the same writer’s Just and Unjust Wars, supra note 6 at 80-85. At least one writer of note on international law has rejected anticipatory self-defense altogether; see Akehurst, supra note 1 at 262–64.
17. The core of legitimate self-defense seems to be that it should be an immediate response to an imminent threat. Immediacy of response continues to figure strongly as a requirement for personal action but seems an unrealistic stipulation in international affairs. For practical reasons alone military action cannot be engaged in on the spur of the moment, and therefore a state’s action in self-defense may be more easily justified when it is “the necessary means of meeting the danger of armed attack”; the phrase, which clearly permits anticipatory or pre-emptive action, is taken from Williams, S.A. & de Mestral, A.L.C. An Introduction to International Law (Toronto: Butterworths, 1979) at 38.Google Scholar The truly imminent threat necessitates an immediate response (or nothing). The deliberations that occur about possible responses to threats by one state against another suggest that in actuality there are few literally imminent threats.
18. Rawls, John A Theory of Justice (London: Oxford University Press, 1972) at 303.Google Scholar
19. Luban, David argued that “socially basic human rights” are worth fighting for, in “Just war and human rights” (1979–80) 9 Phil. & Publ. Affairs 160 at 163.Google Scholar
20. Slates’ rights meriting forcible action in their defense under customary international law include territorial integrity, political independence, and freedom of navigation, but less certainly protection of nationals abroad or the safeguarding of a state’s economic welfare. See Greig, supra note 8 at 878.
21. Luban, supra note 19 at 166.
22. This is a combination reminiscent of Locke’s state of nature in ch. II of The Second Treatise of Civil Government.
23. The latter aim found a place in arguments used to justify armed action in both the Falklands and Gulf conflicts.
24. In passing it is worth noting an overtone here that a war purely of self-defense might possess a narrow and selfish motivation which would be rectified by the additional aim. However, if self-defense justifies deadly force it fully justifies it; if it fails to justify it, an additional factor for consideration will not strengthen the argument from self-defense.
25. Beitz, supra note 12.
