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DEFENDING HUMANITY: WHEN FORCE IS JUSTIFIED AND WHY BY GEORGE P FLETCHER AND JENS DAVID OHLIN (NEW YORK, US: OXFORD UNIVERSITY PRESS, 2008) 268 PAGES. PRICE US$27.95 (HARDBACK) ISBN 9780195183085.
I INTRODUCTION
One of the most sacred trusts placed in the government of any state is to defend that country from its enemies. The classical jurist Emmerich de Vattel declared in 1758 that '[s]elf-defense against an unjust attack is not only a right which every Nation has, but it is a duty, and one of its most sacred duties'.1 Even ultra-conservative proponents of a 'minimal state', in which governmental functions are severely limited, see the raison d'être of the government as one of protection of the citizens in the territory of the state.2 As states have been the subjects of international law since before the 17th century, the rights and duties recognised in customary international law have included the right to defend the nation if attacked.3 However, before a regulation of the use of force in international law emerged with the Covenant of the League of Nations of 1919, the doctrine of self-defence was just one of many justifications put forward by states when using military force against another state (others included armed reprisals to punish another state for breach of international law).4 I have stated elsewhere that:
It cannot be said that the concept had any precise juridical content because it was contained within the much wider doctrines of self-preservation and self-help, which were recognized in the period leading up to the First World War.5
Nevertheless, what George P Fletcher and Jens David Ohlin are pointing to in Defending Humanity6 is that the notion of self-defence transcends law and legal systems, in that it is not possible to imagine a legal order that did not allow the subjects of that order to defend themselves from attack. In the minimal conditions of a legal order, what Hart identified as the 'minimum content of Natural Law'7 embodied in the international legal order in the concept of jus cogens,8 there are basic laws protecting persons (states) and property (territory) which are fundamental for the survival of that legal order as well as the actors within it. No matter how centralised the use of force becomes, no...