The Legal Regulation of the Preventive War and Its Implementation Problems: Summary

Vita Upeniece

Research output: Types of ThesisDoctoral Thesis

Abstract

The prohibition of war at the international level cannot eradicate conflicts in the society. There are still ongoing processes in the world that lead to the use of armed forces to resolve disputes or conflict situations or in order to exercise the right of self-defence provided in the Article 51 of the Charter of the United Nations (hereinafter – UN). The problem of preventive war relates to the obligation laid down in the Article 2 (4) of the UN Charter according to which all Members shall refrain in their international relations from the threat or use of force against other states. The exception to this obligation is included in the Article 51 of the UN Charter, which states that states have the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN. Some of the world's politically and economically powerful countries (such as the United States of America, Great Britain, Australia, Japan) are increasingly expressing their positive attitude towards anticipatory self-defence (preventive or pre-emptive), which is largely due to the sometimes perceived limited capacity of capacity of the UN Security Council to respond in time effectively to the potential threats to the peace and security. While the supporters of the legal positivism continue to defend the narrow literal reading of the Article 51, according to which the use of self-defence is permissible only to counteract the actual attack, the active development of the modern technologies and the emergence of new destructive weapons increases the number of researchers who do not exclude the use of self-defence in the case of imminent and unequivocal threat. As O. Schachter rightly pointed out in his publication “The Lawful Resort to Unilateral Use of Force” (1985), there is no reason to believe that the UN Charter is "fully open" and grants the states unlimited freedom to interpret it, because the general limits of the rules are clear. At the same time R. Värk in his publication “The Legal Framework of the Use of Armed Force Revisited” (2013) has rightly noted that the UN Charter should not become a suicide document in the light of the rapid development of modern weapons. The existence of such a diverse interpretation of the provisions of the UN Charter indicates its shortcomings. The issue of the states anticipatory self-defence has not been studied in deeply in the legal science of Latvia. The aim of the doctoral thesis is to formulate preconditions for the legal use of self-defence and to elaborate recommendations for the elimination of the shortcomings identified in the regulation by studying and analysing the use of the right to self-defence against the actual or predicted attack of another country, its diverse and contradictory theory and practice. The doctoral thesis contains the broad analyses of divergent opinions in scientific literature and national practice, on the basis of which the proposals for the improvement of international and national regulation are provided. The doctoral thesis consists of an introduction, six chapters with subchapters, in which the issues, mentioned in the chapters are discussed, as well as the summery, the acknowledgments, the list of the used literature and sources used and attachments. The structure of the doctoral thesis is designed according to the purpose of the thesis, the tasks, the object and the subject of the research. It logically reveals the essence of the researched problem. As the state does not exist separately and is not isolated from all over the world, the compilation and the analyses of the opinions of various researchers and some national practices in the cases where the state uses force for self-defence can contribute to finding appropriate solutions to the prevention of potential armed conflicts. This study may also be used as a basis for the further development of the regulation at international and national level and may help a reader to better understanding of the nature of the preventive use of force, its positive and negative aspects
Original languageEnglish
Supervisors/Advisors
  • Grasis, Jānis, First/Primary/Lead supervisor
Place of PublicationRīga
Publisher
DOIs
Publication statusPublished - 2020
Externally publishedYes

Keywords

  • International Law
  • The United Nations
  • war
  • aggression
  • anticipatory self-defence
  • preventive self-defence
  • pre-emptive self-defence
  • the duration of the use of force

Field of Science

  • 5.5 Law

Publication Type

  • 4. Doctoral Thesis

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