CYIL Vol. 7, 2016
JOSEF MRÁZEK CYIL 7 ȍ2016Ȏ taking armed actions in self-defence in advance of an armed attack such terms as “anticipatory”, “pre-emptive” or even “preventive” self-defence have been used. The ILA Report used the term “anticipatory” in a broad meaning as a general term for all self-defence measures taken prior to an armed attack. The term “pre-emptive” has been used in connection with measures claimed to be defending against future attack, even if these attacks are not imminent or specific. The Report mentioned a “relatively wide interpretation of self-defence”, adopted by the Bush administration following Sept. 2001, with the reference to rogue state”, terrorists and weapons of mass destruction. 64 The view is here reflected that the right to self-defence does exist in relation to manifestly imminent attacks, “narrowly construed”. Besides, the Report contains an opinion that requirements of necessity and proportionality will further constrain the anticipatory use of force which must give primacy to effective measures by the UNSC. The ICJ stressed that “the submission of the exercise of the right of self- defence to the conditions of necessity and proportionality is a rule of customary international law.” 65 The application of both principles, according the ILA Report, presupposes a legally justified resort to self-defence, lawful recourse to the use of armed force. The action taken in self-defence can include “the need to defend the state from continuation of imminent attacks, and not only repel the attack of the moment. Any measures taken in self-defence must adhere according to the principle of necessity, referring to the 1837 Carolina incident. 66 This case serves as a rule for justification of “self-help” or “self-defence” in international customary law. In literature the principle of necessity is combined with the “additional” principle of proportionality. The Report maintains that the measures taken in self-defence must be “proportionate to the armed attack.” 67 In practice it is always difficult to decide when enforcement measures are excessive, based on necessity and proportionality principles. The parties to armed conflicts rarely took both principles into account. 5. Rescue of Nationals Abroad and Intervention on Invitation 5.1 Rescue actions The subject of rescue of nationals abroad is also a subject of controversy in international law. The sending of armed forces onto the territory of another state without permission of the territorial state represents a violation of Art. 2 (4) of the UN Charter. Arguments in favour of such operations abroad insist that these operations are not directed against the territorial integrity or political integrity of 64 Supra note 1, p. 15. 65 ICJ Nicaragua, para 176, see note 30; ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, para 41; see ICJ Reports Democratic Republic of the Congo v. Uganda, para 147. 66 Supra note 1, p. 12. 67 See supra note 1, p. 13.
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