Jumping the gun? The legality of a plea of anticipatory self-defence in the face of nuclear proliferation

Abstract

In a post-Cold War epoch, states’ proliferation of nuclear weapons and fissionable materials in the pursuit of nuclear dominance is becoming increasingly apparent. This is evidenced by non-nuclear weapon states’ breaches in their non-proliferation obligations under the Treaty on the Non-Proliferation of Nuclear Weapons. The inadequacy of the current nuclear non-proliferation legal framework to discern the atomic nature and intent of a state’s nuclear ambitions serves as impetus for threatened states to rely on their inherent right of self-defence as means of self-preservation. By striking an allegedly proliferating state’s nuclear reactors first, threatened states aim to annihilate the threat of military nuclear capability. The legality of the use of force in anticipatory self-defence, however, is not yet decided. Article 51 of the Charter of the United Nations requires that a state only may invoke individual self-defence on the condition that it has suffered an actual armed attack. However, it is argued that the catastrophic nature of unconventional weapons necessitates anticipatory action in self-defence, before it is too late. The thesis examines the controversial issue of the legal status of anticipatory self-defence in response to nuclear proliferation under jus ad bellum. The study offers insight into the legality of hypothetical anticipatory action taken in the face of the Islamic Republic of Iran’s alleged nuclear weapons capability.