The Effect of the Pre-emtive Military Strike Doctrine on Efforts to Establish New International Legal Provisions
)
(1) Faculty of Law Pattimura University, Ambon, Indonesia
Corresponding Author
Abstract
Introduction: One of the interventional measures that can be justified under international law is self-defence. When there has been an armed attack, on the condition that it is instant, overwhelming situation, leaving no means, no moment of deliberation, that is a justifiable proposition for self-defence.
Purposes of the Research: To examine and analyze the influence of the doctrine of pre-emtive military strike on efforts to establish new international legal provisions.
Methods of the Research: This research uses normative juridical research methods with legal materials used, namely primary legal materials, secondary legal materials and tertiary legal materials. The collection technique is carried out through literature studies and then analyzed using qualitative methods.
Results of the Research: The practice of some countries today in order to anticipate such an attack, pre-emtive military strikes are carried out in the context of anticipatory self-defense, with the aim of conducting self-defense before an attack occurs. The practice of anticipatory self-defence has become a serious conversation among academics, even when the act is practiced repeatedly continuously by a number of countries and recognized for its existence, it is certain to set a precedent that leads to the creation of an international customary law. Self-defence anticipatory measures applied in the doctrine of preemptive military strike have been adopted by several countries before and after the formation of the UN organization. But this has not set a legal precedent, despite efforts to make it an International custom through the practice of countries. If this is allowed to take place, it will at some point become customary international law. The application of the preemptive military strike will affect the establishment of new international law provisions.Keywords
DOI
10.47268/sasi.v28i3.1031
Published
2022-10-13
How To Cite
@article{SASI1031,
author = {Johanis Peilouw},
title = {The Effect of the Pre-emtive Military Strike Doctrine on Efforts to Establish New International Legal Provisions},
journal = {SASI},
volume = {28},
number = {3},
year = {2022},
keywords = {Pre-emtive Military Strike; Legal Establishment; Internasional Law},
abstract = {Introduction: One of the interventional measures that can be justified under international law is self-defence. When there has been an armed attack, on the condition that it is instant, overwhelming situation, leaving no means, no moment of deliberation, that is a justifiable proposition for self-defence.Purposes of the Research: To examine and analyze the influence of the doctrine of pre-emtive military strike on efforts to establish new international legal provisions.Methods of the Research: This research uses normative juridical research methods with legal materials used, namely primary legal materials, secondary legal materials and tertiary legal materials. The collection technique is carried out through literature studies and then analyzed using qualitative methods.Results of the Research: The practice of some countries today in order to anticipate such an attack, pre-emtive military strikes are carried out in the context of anticipatory self-defense, with the aim of conducting self-defense before an attack occurs. The practice of anticipatory self-defence has become a serious conversation among academics, even when the act is practiced repeatedly continuously by a number of countries and recognized for its existence, it is certain to set a precedent that leads to the creation of an international customary law. Self-defence anticipatory measures applied in the doctrine of preemptive military strike have been adopted by several countries before and after the formation of the UN organization. But this has not set a legal precedent, despite efforts to make it an International custom through the practice of countries. If this is allowed to take place, it will at some point become customary international law. The application of the preemptive military strike will affect the establishment of new international law provisions.},
issn = {2614-2961}, pages = {432--446} doi = {10.47268/sasi.v28i3.1031},
url = {https://fhukum.unpatti.ac.id/jurnal/sasi/article/view/1031}
}
Journal Article
E.O.S. Odhiambo, K . Onkware, J . Kassilly, L.T . Maito, W. A. Oboka, J. W. Wakhungu, O. M. Ntabo., Kenya’s Pre - Emptive And Preventive Incursion Against Al - Shabaab In The Light Of International Law, Journal of Defence Resources Management, Vol. 3, Issue 1 (4)/2012.
Gregory E. Maggs, 2007, How the United States Might Justify a Preemptive Strike on a Rogue Nation's Nuclear Weapon Development Facilities Under the U.N. Charter. Syracuse Law Review, Vol. 57, No. 465; GWU Legal Studies Research Paper No. 373; GWU Law School Public Law Research Paper No. 373. Available at SSRN: http://ssrn.com/abstract=1029660.
Leo Van Den Hole, 2003, Anticipatory Self-defence under International Law, American University International L Rev 70.
Megi Madzmariashvili, 2011, Preemptive self-defense againsts State Harbouring Terrorist. Baltic: The Riga Graduate School of Law.
Reisman, M, 2006, The Past and Future Of the Claim of Preemptive Self – Defense, 100 American Journal of International Law.
Sean D. Murphy, 2005, The Doctrine of Preemptive Self-Defense, 50 Vill. L. Rev. 699, 706-19, summarizing a variety of views on the subject.
Book
C. Gray, 2000, International Law and the Use of Force, Oxford University Press, Oxford.
H.L.A.,Hart, 1961, The Concept of Law, Clarendon Press, Oxford.
I. Brownlie, 1963, International Law and the Use of Force by States, Clarendon Press, Oxford.
John Baylis and Steve Smith., 1999, The Globalization of World Politics: An Introduction to International Relations, Oxford University Press, United Kindom.
J. Levy, 1987, Declining Power and the Preventive Motivation for War, World Politics.
Malcolm Shaw, 2008, International Law, 6th edn Cambridge University Press 2008.
Muhaimin, Legal Research Methods, Mataram University Press, 2020.
Raimo Siltala, 2000, A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law, Hart Publishing, Oxford-Portland Oregon.
R. Cross and J.W. Harris, Precedent in English Law (Clarendon Press, Oxford, 4th ed. 1991.
Steven L. Spiegel., 1995, World Politics in A New Era, Harcout Brace College Publishers, New Jersey.
Tarcisio Gazzini, 2005, The Changing rules on the use of force in International Law , Manchester University Press.
Yoram Dinstein, 2001, War, Aggression And Self-Defence, Cambridge University Press 3d Ed., United Kingdom.
Thesis, Web Page, and Others
Anthony Clark Arend., 2003, International law and The Preemptive Use of Force, EJIL, p. 91, cited in the http://leszalombog.blogspot.com/2012/03/relevansi-humanitarian-intervention-and-legality-preemptive-use-of-force-in-invasion-of-the-united states-against-iraq.htlm.
Anthea Roberts, 2008, Legality vs Legitimacy: Can Uses of Force be Illegal but Justified?, in Human Right, Intervention, And The Use Of Force 212 (P. Alston, E. Macdonald, eds., Oxford University Press, 2008).
Mary Ellen O'Connell, 2002, The American Society of International Law Task Force on Terrorism, The Myth of Preemptive Self-Defense, at 5 (2002), available at http://www.asil.org/taskforce/oconnell.pdf.
Jordan Paust has argued that the claim that a dissenter can sometimes not be bound by norms of customary international law is a minority view and is “illogical, false and threatening” to the nature of customary international law. See Jordan Paust, “Customary International Law in the United States: Clean and Dirty Laundry” (1998) 40 Germ. Y.B. Int’l L. 78. Paust is cited with approval by former Justice and Vice-President of the International Court of Justice C.G. Weeramantry. See C.G. Weeramantry, Universalizing International Law (Leiden: Martinus Nijhoff, 2004) at 226., dikutip dalam James Thuo Gathii, 2005, Assessing Claims Of A New Doctrine Of Pre-Emptive War Under The Doctrine Of Sources., Osgoode Hall Law Journal Vol. 43, No. 1 & 2 2005, http://www.vedegylet.hu/fejkrit/szvggyujt/gathii_preEmptiveWar.pdf
Michael J. Glennon, Chris Bordelon, Brendan M. Howe, Jasper S. Kim, Jane E. Stromseth, Richard M., 2002, Gardner all have reached essentially the same conclusion, in Michael J. Glennon, Military Action Against Terrorists Under International Law: The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 HARV. J.L. & PUB. POL'Y 539, 553 (2002); Chris Bordelon, The Illegality of the U.S. Policy of Preemptive Self-Defense Under International Law, 9 CHAP. L. REV. 111, 111-12 (2005); Brendan M. Howe & Jasper S. Kim, Legality, Legitimacy and Justifications for Military Action Against North Korea, 11 U.C. DAVIS J. INT'L L. & POL'Y 229, 233 (2005); Jane E. Stromseth, Law and Force after Iraq: A Transitional Moment, 97 AM. J. INT'L L. 628, 636 (2003); Richard N. Gardner, Neither Bush nor the "Jurisprudes", 97 AM. J. INT'L L. 585, 585-86 (2003)., quoted in Gregory E.
: 1750 times
Download : 922 times
Copyright (c) 2022 Johanis Steny Franco Peilouw
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Email this article 
