Legitima apărare anticipată
Anticipatory self-defence

Summary/Abstract: The existence of anticipatory self-defence as an institution of international law has been contested ever since its emergence. There is no unanimous opinion regarding its existence, conditions, or even source of law. Self-defence has a dual regulation in international law – both as a customary norm and as a written one. This is because the written norm did not codify the entirety of the content of the customary practice existent at that moment. The possibility that states have to make recourse to this institution is part of their inherent right to self-defence that the UN Charter did not intend to restrict. Self-defence is regulated in the Charter as an exception from the interdiction of utilising force, under art. 51. However, there are contrary opinions regarding the absolute or relative character of the interdiction to use force, but also regarding the inclusion of preventive actions under the indicated exception. The written norm permits recourse to this institution only against armed attacks, while the customary norm imposes a wider vision under which all kinds of attacks are included, not just armed ones. Moreover, the customary norm allows states to defend themselves against non-state subjects, as opposed to the written norm. Military and paramilitary activities in and against Nicaragua, the Cuban Missile Crisis, the Six-Day War, the Israeli attack on the Osirak nuclear reactor, The conflict in Lebanon and the one in the Gaza Strip, Operation Enduring Freedom and Iraqi Freedom are a few examples where anticipatory self-defence was invoked, these examples being conclusive as to the current understanding of the conditions imposed by the anticipatory self-defence. After analysing the practice of States from the Caroline incident up to the present date we can conclude that the imminence, necessity and proportionality are the only conditions imposed by anticipatory self-defence, and they have only been nuanced throughout time.

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