Тому найважливішим завданням державного фінансового

контролю є забезпечення неухильного дотримання нормативно-

правових актів в частині фінансів, виконання зобов'язань перед
партнерами щодо взаємних боргів.

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UDC 341.1/.8 Juridical Sciences

THE LEGALITY OF ANTICIPATORY SELF-DEFENSE IN

INTERNATIONAL LAW DUE TO RUSSIA’S AGGRESSION
AGAINST UKRAINE

Rad’ P.V.
Student of the Faculty of International Relations
of the Ivan Franko National University of Lviv
Lviv, Ukraine
Before the large-scale invasion into Ukraine Vladimir Putin said
that the Russian Federation was going to conduct a so-called special
military operation in accordance with Article 51 of the United Nations
Charter, with the approval of the Federation Council of Russia and in
pursuance of the treaties of friendship and mutual assistance with the so-
called Donetsk and Luhansk People’s Republics. In his speech Putin
said that Russia’s clash with Ukrainian nationalists, who were preparing
for a warfare, was just a matter of time. Consequently, based on Putin’s
appeal to the citizens of the Russian Federation, Russia started an
unprovoked and unjustified aggression against another sovereign state,
allegedly using its right for self-defense, but in anticipatory manner. So,
the goal of this paper is to figure out whether anticipatory self-defense
is lawful under international law.
As a fundamental principle of international law, Article 2(4) of the
United Nations Charter states that “all Members shall refrain in their
international relations from the threat or use of force against territorial
integrity and political independence of any state, or in other manner
inconsistent with the Purposes of the United Nations”. However, Article
42 of the U.N. Charter states that the “Security Council may take

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military enforcement measures in conformity with Chapter VII.” Article
51 provides with other grounds for a lawful use of force on the case of
an armed attack. [1], [2, p. 73]
As Leo Van Den Hole points out, there are two schools of thought
regarding anticipatory self-defense in international law. The restrictive
school argues for a narrow interpretation of self-defense, excluding
anticipatory self-defense, while the supporters of the expansive theory
support the view that customary right of self-defense includes the use of
force in anticipation of an attack. The restrictionists claim that the intent
of Article 51 was to limit the use of force in self-defense to those
circumstances in which an armored attack occurred. Under this logic, it
would be unlawful to be engaged in any kind of preventive actions. [2,
p. 80-82] On the other hand, according to the broad interpretation of the
right of self-defense, states are allowed to use armed force in an
anticipatory manner as well. [3, p. 3]
Anthony Clark Arend claims that based on a positivism
conception, there was a preexisting rule of customary international law
allowing for anticipatory self-defense. According to the positivists, there
is no rule prohibiting states from using force preemptively. If states are
sovereign, they can do as they choose unless they have consented to a
rule restricting their behavior. In the support of this position, the
advocates of the broad interpretation refer to the cases when pre-attack
strikes occurred that relied on explicit or implied self-defense reasoning.
[4, p. 93]
During the Cuban missile crisis, in 1962, before either the Soviet
Union or Cuba forces used force against the U.S., it instituted a
“defensive quarantine” against Cuba. The U.S. government made a
number of formal legal arguments in support of the institution of the
quarantine, which revolved around the role of regional organizations
and their ability to authorize force absent a Security Council
authorization. The goal of this was to argue that the defensive quarantine
did not technically qualify as a blockade, which some consider to be an
act of aggression, creating legal justification for the use of force. [5]
Another example is the Six-Day War. In 1967 Israel launched
surprise attack against Egypt, beating the rival in six days. From Israeli
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position, the 1967 war has consistently been presented as defensive,
while many Arab stated have called the conflict a war of Israeli
aggression. The actions of Israel caused mixed international reaction,
and the state avoided criticism within the United Nations. [5]
In 1981 Israel launched another attack but against the Osirak
nuclear reactor in Iraq, arguing that this reactor would be producing
nuclear weapons-grade material for the purpose of constructing nuclear
weapons, which could have been used against Israel based on past
statements of Iraqi officials. That is why it was decided to conduct this
operation when the reactor was under construction. Consequently, Israel
was unanimously condemned by the Security Council. [5]
Maybe one of the most distinguished and controversial cases of
preventive military actions happened in 2003. The George Bush
administration legally justified its decision to send troops into Iraq on
the basis of the Security Council 1441 Resolution, Resolutions 678 and
687, relying in part on a claim of self-defense. [6], [7], [8] The Bush
administration claimed that Saddam Hussein’s regime was armed with
weapons of mass-destruction presenting a threat to the region and to the
United States. [5]
However, those cases mentioned above are often alleged to be of
customary international law when consider anticipatory self-defense,
they should be considered as unlawful and even dangerous in modern
state of affairs on the international arena.
Firstly, as Charlotta Nilson points out, Article 2(4) of the U.N.
Charter is a rule of jus cogens, which means no derogation is allowed
under this article. Any use of force is prohibited if not explicitly allowed
under Chapter VII of the Charter. Based on this, the pre-existing doctrine
of anticipatory self-defense does not fulfill the requirements of “armed
attack” under Article 51 because the victim state has not been yet
exposed an armed attack. [9, p. 43]
Secondly, as Helen Eenmaa points out, referring to the thoughts of
Lauri Mälksoo, the right of anticipatory self-defense can be dangerous
and can potentially entail minimum confidence and the cease of justice.
Possible situations in which states being aware of the threat are allowed
to use force while clear violations against them are lacking and clear
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attempts to harm their interests have been made can occur. [3, p. 12]
Thirdly, despite the fact that there have been some attempts to
expand the meaning of Article 51, the wide majority of the members of
international community have taken a position that self-defense can be
used only in case of a real armed attack. [3, p.12] The international court
of justice several times has taken a position of narrow interpretation of
the Article 51. One of the most distinguished cases happened in 1986
when the Court rejected the justification of collective self-defense
maintained by the United States of America in connection with the
military and paramilitary activities in and against Nicaragua. In this case
in response to the claims of existing right of anticipatory self-defense
based on customary law, the Court ruled that “it cannot therefore be held
that Article 51 is a provision which «subsumes and supervenes»
customary international law”. [10, p. 84]
So the following conclusion can be made: anticipatory self-defense
is unlawful under international law despite some violations which had
occurred previously serving as justification, in Putin’s point of view, for
invasion into Ukraine. This means that the Russian Federation misused
Article 51 of the U.N. Charter distorting its meaning for its interests.
This case as well as misusage of the Genocide Convention can be a
cause for legal proceedings against Russia in the International Court of
Justice.
References:
1. United Nations Charter 1945 ( the United Nations). The official
website of the United Nations. URL: https://www.un.org/en/about-
us/un-charter/full-text. (accessed 10 October 2022).
2. Leo Van den hole. Anticipatory Self-Defence Under
International Law. 2003. URL:https://digitalcommons.wcl.american.
edu/cgi/viewcontent.cgi?article=1160&context=auilr (accessed 10
October 2022)
3. Helen Eenmaa. The Concept of Anticipatory Self-Defence in
International Law after the Bush Doctrine. 2005. URL: https:
//www.researchgate.net/publication/228152257_The_Concept_of_Ant
icipatory_Self-Defence_in_International_Law_after_the_Bush_Doctri-
ne (accessed 10 October 2022)
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 4. Anthony Clark Arend. International law and the Preemptive Use
of Military Force. 2003. URL: https://ciaotest.cc.columbia.edu/olj/twq/
spr2003/twq_spr2003a.pdf (accessed 10 October 2022)
5. Alexander J. Potcovaru. The International Law of Anticipatory
Self-Defense and U.S. Options in North Korea. 2017. URL:
https://www.lawfareblog.com/international-law-anticipatory-self-
defense-and-us-options-north-korea (accessed 10 October 2022)
6. Resolution 1441 2002 (the United Nations Security Council).
The official website of the United Nations Security Council. URL:
https://www.un.org/depts/unmovic/documents/1441.pdf (accessed 10
October 2022)
7. Resolution 678 1990 (the United Nations Security Council). The
official website of the United Nations Security Council. URL:
https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4-
E9C-8CD3-CF6E4FF96FF9%7D/Chap%20VII%20SRES%20678.pdf
(accessed 10 October 2022)
8. Resolution 687 1991 (the United Nations Security Council). The
official website of the United Nations Security Council. URL: http:
//www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-
8CD3-CF6E4FF96FF9%7D/Chap%20VII%20SRES%20687.pdf
(accessed 10 October 2022)
9. Charlotta Nilsson. The Legality of Anticipatory Self-Defence in
International Law. 2008. URL: https://lup.lub.lu.se/luur/download?-
func=downloadFile&recordOId=1560475&fileOId=1565324
(accessed 10 October 2022)
10. Case concerning military and paramilitary activities in and
against Nicaragua (Nicaragua v. United States of America). 1986. The
official site of the International Court of Justice. URL: https://www.icj-
cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf
(accessed 10 October 2022)

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