Feasibility Analysis On Exertion Of The Right Of Protective Self-defense

The legitimacy of The Pre-exercise of Self-defense was first recognized by“Caroline Incident”in1837,the Traditional International Law considers that ThePre-exercise of Self-defense is legitimate only when that satisfy the necessity and theproportionality of The Caroline principle.But after World War II,the United Nationsand the Collective Security Mechanism are established,"The Charter of the UnitedNations" brings the international law into the door of modern international law,thestate ancient right of war was abolished,and set up the principle "the prohibition ofthe use of force or threat of force",but “The Charter of the United Nations” opens awindow to the “force”, confirming the legal status of the right of self-defense inArticle51,The existence of legitimate of self-defense has become an exception of"the prohibition of the use of force or threat of force",Caroline Principle isrecognized as international customary rules complementary with Article51by theinternational community,but The Pre-exercise of Self-defense which also legal ascustomary international law is still in a dispute position in modern international lawsystem for a long time only because it isn’t clearly defined by “The Charter of theUnited Nations”.The Pre-exercise of Self-defense is hotly disputed after The War In Iraq becauseof the American Force-first Strategy which was recognized legal by America in TheWar In Iraq.But through the analysis we can see that the War In Iraq is actually aPreventive War.The USA use the word “Force-first Strategy” to explain ThePre-exercise of Self-defense is only to find the legal basis for his unilateral policy ofhegemony.So we can’t consider the American Force-first Strategy to ThePre-exercise of Self-defense,in other words,we can’t repudiate The Pre-exercise ofSelf-defense completely because of the American Force-first Strategy.With the development of science and technology,a large number of advancedweaponry arises at the historic moment,and The Pre-exercise of Self-defense whichis an exception of The Right of Self-defense is desperate to be legal because of the existence of mass-destruction weapons、the raging terrorism and the comprehensiveupgrade of cyberwar.It’s unreasonable and unrealistic to sovereigns that defendingthemselves after they were hit deadly in unconventional warfare.The justicial international law should fully guarantee the rights of protecting thenational security in stead of obeying and enforcing the law blindly.Peace、development and human rights are the basic of the new era of the internationalorder,sovereigns can’t destroy the order,but they also can’t ignore the nationalsecurity and the people’s security face to the force of the mass-destructionweapons.The international society can’t take an evasive attitude to the problem ofThe Pre-exercise of Self-defense,they should put it to the legal position clearly、limitit strictly、improve it continuously and use it properly.Edgar Bodenheimer in "jurisprudence:the Philosophy and Method of theLaw"mentioned:"jurisprudence that: when the effectiveness of a rule or set of rulesfor resisting moral threatened, its effectiveness could no doubt become a shell.Onlyin obedience to supplement the basic requirements of justice in the form of legalarrangements order to make the legal system from all or part of the collapse."Thedevelopment of nuclear weapons and the spread of terrorism can not be expectedwhen formulation of " the Charter of the United Nations", and the combination ofnuclear weapons more damage caused by terrorism is fatal, whether based onnational security, or advocated a new era of human rights protection, we can not letthis happen to combat wanton, a devastating blow after the requirement ofself-defense is more unrealistic to sovereign state, if things go on like this, the abovejudgment of Bodenheimer also is not possible.In my opinion,The Pre-exercise of Self-defense has practicability because of itslegality、rationality and its necessity,but it is difficult to put it into practice because ithas disadvantage and the effect from external factors.High level panel on UN reformmentioned in a report of “A more secure world: our common responsibility”that:according to " the Charter of the United Nations" and universally recognizednorms of international law,sovereign state may exercise the right of self-defensewhen the face the imminent and insolubility threat.This report put The Pre-exerciseof Self-defense into the legal position clearly and direct international actions under the Collective Security Mechanism clear direction in the future.I think that:to ThePre-exercise of Self-defense,we shouldn’t repudiate it because of its disadvantage,weshould regulate it constantly to be a more effective method of defense.