Domestic and international law, and transnational terrorism: Can 'reasonable apprehension of physical harm' and 'probable cause' elucidate issues concerning imminence and anticipatory self-defense?

摘要

Prior to the adoption of the Charter of the United Nations, customary international law permitted, under certain circumstances, the use of force in anticipation of an armed attack. However, the Charter is ambiguous on this issue, and thus, it currently is a topic of intense debate whether this customary right still exists. On the one hand, a strict reading of Article 51 suggests that the requisite threshold for the use of force is an actual armed attack, and that this requirement is absolute. By this interpretation, states no longer have the right to anticipatory self-defense. However, this thesis argues that a closer reading of Article 51, vis-aÌ -vis both the broader purposes of the U.N. Charter and customary international law, suggests that the right to anticipatory self-defense still exists where there is a discernable imminent attack. Therefore, the central issue is the reasonability of a claim that a threat is imminent and that the use of force is necessary to thwart that danger. This thesis examines the municipal law doctrines of reasonable apprehension of physical harm in matters of self-defense (and the defense of others), and of sufficient probable cause in matters of police action, and suggests that they can be useful in devising an analytical framework to inform the central issue.