Contra a Doutrina "Bush": preempção, prevenção e direito internacional / Against "Bush Doctrine": Preemption, Prevention and International Law

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

This thesis intends to refute the so-called "Bush Doctrine", whose terms have been laid down in the National Security Strategy of the United States of America in 2002, and have since then oriented the present Administrations foreign policy towards a greater assertiveness of military power against either present or future threats to its dominant position in international relations, in particular its proposition of a right to preemptive self-defense. In this respect, this thesis advance two central claims: 1) that, contrary to what the actual terms in which this doctrine is formulated might want to suggest, it is not a policy of preemptive strikes that is being proposed, but one of prevention, which is beyond the reach of the legal right of self-defense; 2) that any policy of unilateral preventive strikes is contrary to the maintenance of order in the present international system. In order to support this claims, in the first part of the thesis, the philosophical and political justification of the right to self-defense is examined, the recognition of such a right in actual normative systems emerging as a rational condition of their legitimacy, and an ideal concept of self-defense is advanced that results from the application to the claim to individual self-preservation of the requirements deriving from this justification: an actual aggression and the concrete necessity of the means employed in the defense; in the second part of the thesis, the regulation of self-defense by international law, specially through the Charter of the United Nations, is explained, in the terms of which the legality of the Bush Doctrines claim of preemptive self-defense is verified. Of this claim it is concluded that, at least in the way it is described by the National Security Strategy, it cannot be regarded as self-defense, because it does away with the necessary element of an actual aggression, either in progress or imminent, being in fact a variety of preventive use of force, the recourse to which should be restricted to an organ representing the community, in this case the Security Council of the United Nations, lest the prohibition of the recourse to force in international relations is relaxed. That notwithstanding, it is advanced that, as long as one understands preemption only as an early response to an imminent attack, it can be reconciled with the authorization to use force in self-defense, if subjected to some form of ex post control.

ASSUNTO(S)

direito de guerra legítima defesa organização internacional segurança nacional international law self-defense use of force relações internacionais política internacional direito internacional law of war

ACESSO AO ARTIGO

Documentos Relacionados