On the precipice of a nuclear-armed Iran and bombing in the name of survival : Whither rule of law?

Abstract

The inherent right of individual anticipatory self-defence as a response to nuclear proliferation remains unresolved in international law. Following Israel’s attack on Osiraq in 1981, the world community of states deliberated whether the use of force to prevent a state from acquiring a nuclear weapons capability could ever be justified under the purview of the law prohibiting war (jus contra bellum). Without the concept of anticipatory self-defence being clearly defined, threatened states might invoke their inherent right of individual self-defence to ensure, as they see it, their national survival—something contrary to the principles of the UN Charter. As a non-nuclear weapon state prima facie in breach of its obligations under the Nuclear Non-Proliferation Treaty, the Islamic Republic of Iran is alleged to be in pursuit of a nuclear weapons capability. As a response thereto, threatened states are now preparing for a last resort forceful option aimed at curbing Iran’s highly advanced nuclear weapons programme. Yet, the jus contra bellum encompasses good law. As such, the anticipatory use of force against what is believed to be covert Iranian nuclear reactors is illegal. Not only does the United Nations Charter forbid such recourse, so too does the customary right of anticipatory self-defence, justifiably so.