[1] Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 151.
[2] Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 151; The ICJ referred to Article 2(4) as a “pre-emptory norm of international law, from which states cannot derogate.” Nicaragua v The United States [1986] ICJ Reports 14 [190].
[3] Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 153.
[4] ‘Armed attack’ was given a broad interpretation in the Nicaragua Case (Nicaragua v The United States [1986] ICJ Reports 1
[4] [190]). The visible mobilisation of armies, navies and air forces may be required before an imminent attack will be evident: Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585.
[5] Opponents of this view have pointed to the effect of UN Security Council Resolutions 1368 (adopted on 12 September 2001) and 1373 (adopted on 28 September 2001): Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 10. The resolutions do not contain any form of authorisation language for resort to force: Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 11.
[6] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7; Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 840. Reference to an inherent right to self defence in the text of Article 51 is cited in support of this conclusion: Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 840.
[7] Such parameters are absent from the text of Article 51 itself.
[8] Caroline Case (1837) 2 Moore 409. In that case, Britain destroyed The Caroline steamer, used by American sympathisers in assistance of the Canadian rebellion against the crown. The judgment is referred to as support for a right to use force where an imminent threat is otherwise unavoidable.
[9] Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 12; Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 59
[9] at 600.
[10] Maxon, R G. “Natures Eldest Law: A Survey of a Nations Right to Act in Self Defence” (1995) Parameters Autumn at 55-68; Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977): The US Secretary of State in the Caroline case, Daniel Webster, suggested a pre-emptive use of force should be confined to cases where ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’: Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), in (1906) 2 John Bassett Moore, A Digest of International Law 412.
[11] Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 842. Franck states this intuition is supported by the language of Article 51.
[12] Contemporary weapon systems and the modus operandi of modern adversaries may require an expansion of the concept of imminent threat: Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585.
[13] Maxon, R G. “Nature’s Eldest Law: A Survey of a Nation’s Right to Act in Self Defence” (1995) Parameters, Autumn, 55-68; This requires regard be had to the risk of harm to civilians versus the military advantages expected to result from the use of force: Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 12: The question of proportionality is complicated where a suspected aggressor is a non-state actor: Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 842.
[14] Grotius, H De Jure Belli Ac Pacis Libri Tres (Francis W Kelsey translation, 1925) 173.
[15] De Vattel, E. The Law of Nations (Charles G Fenwick translation, 1916) 243.
[16] Address by Bush Administration National Security Advisor, Dr Condoleezza Rice, Winston Lecture, 1 October 2002; Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 599 at 599.
[17] Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 at 582; Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self-Defence” (2003) 97 American Journal of International Law 599 at 601.
[18] Including biological warfare, nuclear weapons and chemical based arsenals.
[19] This argument is based on the efforts of the Bush Administration to develop a strategy of pre-emption aimed at permitting the US to forestall efforts by state and non-state actors to strike the US and to acquire weapons of mass destruction. See Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) at 7; Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 557; Ricks, T and V Loeb. “Bush Developing Military Policy of Striking First” The Washington Post 6 June 2002; Sanger, D. “Bush to Formalise a Defence Policy of Hitting First” The New York Times 17 June 2002.
[20] The National Security Strategy of The United States of America (17 September 2002) available at http://www.whitehouse.gov/nsc/nss.pdf; Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence” (2003) 97 American Journal of International Law 576 at 583.
[21] Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 at 582; Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 10.
[22] Fislor Damrosch, L and B Oxman. “Future Implications of the Iraq Conflict: Editors Introduction.” (2003) 97 American Journal of International Law 553 at 553.
[23] Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 599 at 603. President Bush himself stated, “We choose to meet that threat now, where it arises, before it can appear suddenly in our skies and cities.”
[24] The pre-emption of Iraq’s alleged possession of weapons of mass destruction. See Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14; Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 839; Cf Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 563.
[25] See for example Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14; Farer, T. “Beyond the Charter Frame: Unilateralism or Condominium?” (2002) American Journal of International Law 359; Makinda, S. “Countering Pre-Emptive Strikes” Australian Financial Review 3 December 2002. Even where commentators accept an imminent threat existed and action was necessary, most have concluded the reaction of the US and coalition forces was not proportional in the circumstances.
[26] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14.
[27] Murphy, S. “US Adoption of New Doctrine of Use of Force” (2003) 97 American Journal of International Law 203 at 204.
[28] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14.
[29] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14; Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) at 9, 10 and13.
[30] Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977).
[31] Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 599 at 603.
[32] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7.
[33] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7.
[34] For a discussion of the details of these events see Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 beginning at 577; Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 557.
[35] Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 563.
[36] Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 563.
[37] Farer, T. “Beyond the Charter Frame: Unilateralism or Condominium?” (2002) American Journal of International Law 359.
[38] Makinda, S. “Countering Pre-Emptive Strikes” Australian Financial Review 3 December 2002. Makinda states, “Support for pre-emptive strikes ultimately suggests that the law of the jungle should reign.”
[39] Fislor Damrosch, L and B Oxman. “Future Implications of the Iraq Conflict: Editors Introduction.” (2003) 97 American Journal of International Law 553 at 553.
[40] Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 593-595.
[41] Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 593-594.
[42] Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 595.
[43] Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585 at 589.