scholarly journals Revisiting the Right of Self-Defence against Non-State Armed Entities

2016 ◽  
Vol 53 ◽  
pp. 202-243
Author(s):  
I.M. LOBO DE SOUZA
Keyword(s):  
Foreign Policy ◽  
Normative Framework ◽  
Foreign State ◽  
Policy Goals ◽  
State Practice ◽  
General Recognition ◽  
The Right ◽  
Self Defence

AbstractThis article explores and appraises international legal developments regarding the right to self-defence against vicarious aggression — that is, armed attacks by non-state entities that are sponsored or hosted by a foreign state. Despite efforts to develop a normative framework and mechanisms of accountability to curb states’ use of non-state entities as proxies for armed activity, some states continue to view these entities as valuable tools for the realization of their foreign policy goals. Consequently, international practice shows general recognition of a right of self-defence against non-state armed entities. There is also an emerging body of authoritative opinion, backed by an evolving state practice, that supports the extension of the application of this right against a non-state entity’s host or sponsoring state, provided some conditions are met.

Part 2 The Post-Cold War Era (1990–2000), 42 The US Airstrike Against the Iraqi Intelligence Headquarters—1993

2018 ◽  
Author(s):  
Starski Paulina
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Post Cold War ◽  
The Us ◽  
State Practice ◽  
Observable State ◽  
The Right ◽  
President Bush ◽  
Intelligence Service ◽  
Self Defence

This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.

Part 1 The Cold War Era (1945–89), 29 The US Intervention in Nicaragua—1981–88

2018 ◽  
Author(s):  
Kammerhofer Jörg
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Customary Law ◽  
The Us ◽  
State Practice ◽  
The Icj ◽  
The Right ◽  
The Cold War ◽  
Us Intervention ◽  
Self Defence

This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

Restrictivist Reasoning on theRatione PersonaeDimension of Armed Attacks in the Post 9/11 World

2016 ◽  
Vol 29 (1) ◽  
pp. 19-42 ◽  
Author(s):  
ANDRÉ DE HOOGH
Keyword(s):  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
State Actors ◽  
The Right ◽  
Self Defence

AbstractThis contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.

Necessity and Proportionality and Armed Attacks by Non-State Actors

2021 ◽  
pp. 172-226
Author(s):  
Chris O'Meara
Keyword(s):  
International Terrorism ◽  
State Action ◽  
Permissive Attitude ◽  
State Practice ◽  
Terrorist Groups ◽  
Defensive Action ◽  
The Right ◽  
Geographical Scope ◽  
Worrying Trend ◽  
Self Defence

Chapter 4 builds on the analysis of the previous chapters by considering how necessity and proportionality are adapted to apply to defensive action against NSAs. With a particular focus on international terrorism, including the ongoing Global Coalition intervention in Syria against Daesh and other terrorist groups, the potential and limitations of necessity and proportionality are brought to the fore. In particular, this chapter examines the position of the ‘host state’ (being the state in whose territory military action is taken), which includes a review of the controversial ‘unwilling or unable’ doctrine. The duration and geographical scope of the right of self-defence are also considered in this context. A worrying trend is identified regarding how states appear to take a more permissive attitude towards anti-terrorist operations. This state practice has serious implications for the meaningful application of proportionality, whilst highlighting the potential for specific necessity to act as a restraint on state action.

Self-Determination Through Autonomy or Independence? – On the Current and Future Position of New Caledonia

ICL Journal ◽  
2021 ◽  
Vol 15 (1) ◽  
pp. 67-105
Author(s):  
Markku Suksi
Keyword(s):  
Human Rights ◽  
New Caledonia ◽  
Legal Order ◽  
The Self ◽  
Self Determination ◽  
Normative Framework ◽  
European Court ◽  
Determination Process ◽  
The Right

Abstract New Caledonia is a colonial territory of France. Since the adoption of the Nouméa Accord in 1998, a period of transition towards the exercise of self-determination has been going on. New Caledonia is currently a strong autonomy, well entrenched in the legal order of France from 1999 on. The legislative powers have been distributed between the Congress of New Caledonia and the Parliament of France on the basis of a double enumeration of legislative powers, an arrangement that has given New Caledonia control over many material fields of self-determination. At the same time as this autonomy has been well embedded in the constitutional fabric of France. The Nouméa Accord was constitutionalized in the provisions of the Constitution of France and also in an Institutional Act. This normative framework created a multi-layered electorate that has presented several challenges to the autonomy arrangement and the procedure of self-determination, but the European Court of Human Rights and the UN Human Rights Committee have resolved the issues regarding the right to vote in manners that take into account the local circumstances and the fact that the aim of the legislation is to facilitate the self-determination of the colonized people, the indigenous Kanak people. The self-determination process consists potentially of a series of referendums, the first of which was held in 2018 and the second one in 2020. In both referendums, those entitled to vote returned a No-vote to the question of ‘Do you want New Caledonia to attain full sovereignty and become independent?’ A third referendum is to be expected before October 2022, and if that one also results in a no to independence, a further process of negotiations starts, with the potential of a fourth referendum that will decide the mode of self-determination New Caledonia will opt for, independence or autonomy.

Can there be a just war?

Think ◽  
2004 ◽  
Vol 3 (8) ◽  
pp. 7-16
Author(s):  
Richard Norman
Keyword(s):  
Just War ◽  
The Right ◽  
Self Defence

Richard Norman examines justifications for war that are rooted in the right of self-defence.

Russland und das Selbstbestimmungsrecht der Völker im postsowjetischen Raum

2021 ◽  
Vol 67 (1) ◽  
pp. 8-26
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Self Determination ◽  
Legal Rhetoric ◽  
Power Politics ◽  
Regional Comparison ◽  
State Practice ◽  
Soviet Space ◽  
The Right ◽  
Fragmentation Of International Law ◽  
Post Soviet Space

As a concept of international law, the right to self-determination is widely renowned for its unclarity. Broadly speaking, one can differentiate between a liberal and a nationalist tradition. In modern international law, the balance between these two opposing traditions is sought in an attempt to contain or ‘domesticate’ the nationalist conception by limiting it to ‘abnormal’ situations, i.e. to colonialism in the sense of ‘alien subjugation, domination and exploitation’. Essentially, this distinction between ‘normal’ and ‘abnormal’ situations has since been the heart of the matter in the legal discourse on the right to self-determination, with the important qualification regarding the need to preserve existing borders. This study situates Russia’s approach to the right to self- determination in that discourse by way of a regional comparison vis-à-vis a ‘western’ or European perspective, and a temporal comparison with the former Soviet doctrine of international law. Against the background of the Soviet Union’s role in the evolution of the right to self-determination, the bulk of the study analyses Russia’s relevant state practice in the post-Soviet space through the prisms of sovereignty, secession, and annexation. Complemented by a review of the Russian scholarship on the topic, it is suggested that Russia’s approach to the right to self-determination may be best understood not only in terms of power politics disguised as legal rhetoric, but can be seen as evidence of traits of a regional (re-)fragmentation of international law.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

The Perception of Russia in Europe in Context of Ukrainian Crisis

2015 ◽  
pp. 24-34
Author(s):  
N. Lapina
Keyword(s):  
Foreign Policy ◽  
Political Elites ◽  
Political Forces ◽  
Fruitful Cooperation ◽  
European Business ◽  
The Russian Federation ◽  
Ukrainian Crisis ◽  
The Right ◽  
The Impact

This article deals with the impact of various factors on the perception of Russia in different European countries. The focus is on the role of mass media, expert and political elites in forming of Russia's image, especially in the context of Ukrainian crisis. In this article, the reaction of different European counties to events in Ukraine, the polarization of European space is analyzed: some countries prefer to put a pressure on the Russian Federation, other – to find a way out of the critical situation and reach a compromise. Some political establishment representatives in France, Germany, Czech Republic support Russia and the reunification with Crimea, dispute sanctions against Russia. For such politicians, this support results from anti-American views and independent foreign policy aspirations. Other representatives of the European elite demand tougher approach and more pressure on Russia by any means whatsoever (including military ones). European business-communities reveal great interest in solving issues related to sanctions. Many entrepreneurs in Europe (in particular major corporations in France, UK, Germany, Italy), who profit from long and fruitful cooperation with Russia, are against anti-Russian sanctions. In view of the Ukrainian crisis, Russia has to face and solve various important issues. How can Russia implement a modernization project after burning all traditional bridges to the West and western friends and partners? What is the right way for Russian foreign policy to support and defend Russian-speaking people all over the world? Which European political forces can provide support to Russia? How can civil society affect and influence cooperation between Russia and Europe?

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