THE LIMITS OF THE CAROLINE DOCTRINE IN THE NUCLEAR CONTEXT: ANTICIPATORY SELF-DEFENSE AND NUCLEAR COUNTER-PROLIFERATION

摘要

The international law doctrine of self-defense has traditionally been defined by the United Nations Charter and the customary international law doctrine from the Caroline case. Under this standard, force cannot be used in anticipation of a pending military attack unless such use of force is necessary to combat an imminent attack. This Note argues that, in the nuclear context, this doctrine is insufficient. Once an aggressor nation has developed a nuclear program, any action taken in self-defense could result in nuclear war or other catastrophe. Requiring that states wait until this point in order to exercise their self-defense rights would effectively eliminate the right of self-defense in this context. The last few decades have seen two military actions taken against developing nuclear programs with the Israeli military strikes on the Iraqi nuclear reactor in 1981 and the Syrian nuclear facilities in 2007. In the wake of the 1981 Iraq strike, scholars began to question whether the Caroline doctrine warrants reconsideration. The international silence following the strike on the Syrian facilities further provides support that the doctrine is ripe for change due to a shift in state practice. Because of the insufficiency of the current doctrine, and the shifts in both state practice and the views of scholars, this Note proposes a new doctrine that is both workable and provides a reasonable limit on the use of force in line with the goals of the United Nations Charter. As exhibited through the example of Iran, this proposed doctrine would allow for a military strike in anticipatory self-defense against nuclear programs being developed by an aggressor state when the nuclear program is imminent, rather than requiring that states wait until the program has developed and an actual nuclear attack is imminent.