The International Legal Right to Use Armed Force in Anticipatory Defense: the Iranian Nuclear Threat to Israel as a Case Study.

This dissertation will examine the international legal right of a state to use force in anticipatory defense against a threatened attack before the attack occurs, and will do so using as a case study the contemporary security issue of the existential threat posed to Israel by the Islamic Republic of Iran’s pursuit of a nuclear weapons capability. Part 1 of the dissertation will discuss the origins of the right of anticipatory defense against a threat of imminent attack and will show how the classical writers on international law incorporated the right of anticipatory defense into the emerging law of nations. Part 1 will then demonstrate that the formulation of the international legal right of anticipatory defense by U.S. Secretary of State Daniel Webster during the 1837 Caroline incident became a permissive rule of customary international law, and that Article 51 of the United Nations (UN) Charter was not intended to and did not eliminate this pre-UN Charter customary international law right of states to use force in anticipatory defense to repel a threat of imminent armed attack.
Parts 2 and 3 of the dissertation will then examine whether the customary international law requirement that a threat of attack must involve a high degree of temporal imminence in order to justify anticipatory defensive action by a state is adequate to address contemporary security threats. To examine this question, Part 2 of the dissertation will discuss as a case study the facts regarding the existential threat posed to Israel by a nuclear-armed Iran. Part 3 of the dissertation will then argue that the customary international law requirement of a high degree of temporal imminence to justify anticipatory defensive action by states is not adequate to address the Iranian nuclear threat to Israel. Finally, after examining alternate approaches offered by states and legal scholars regarding the strict temporal imminence requirement for anticipatory defense, I will propose in Part 3 of the dissertation a new multi-part test to guide states in determining whether a threat of armed attack is imminent.