1
International and European Law Master’s Thesis
Date of Submission: 25-07-2016
Terrorism and the Right of Self-Defence
Making the Charter Work
Suhubiana Maiseke-van der Boom Thesis Supervisor: Janne Nijman
(Word Count 12,809 excluding cover page, table of contents, abstract and bibliography)
2
Abstract: This thesis describes the discrepancy between the state practice of using force against terrorist organisations and the law of armed force that only allows the use of force between states. It makes the argument that current state practice falls under customary
international law by demonstrating that opinio juris exists. After mapping the debate between restrictionists and counter-restrictionists on how Article 51 should be interpreted, the
normative argument is made that the law of armed force should develop according to the counter-restrictionist perspective which includes customary international law in the
interpretation of Article 51. This argument is accounted for based on three sub-arguments: (i) that traditional means of dispute settlement are inadequate (ii) a moral conviction about self-defence-that it is fundamental, and (iii) the sociological theory of law- that norms in
international law should develop in accordance with state practice. It warns that norms should not stray too far from reality and that there should be a balance between normativity and concreteness. The paper concludes by suggesting that this balance can be achieved if the ICJ accepts the counter-restrictionist interpretation and acknowledges that an armed attack can come from a non-state entity. Also, the concepts of immediacy and imminence that fall under the customary law principle of necessity should be redefined to take into account the nature of terrorism and the difficulties states face when dealing with trans-national terrorism. The overall aim of the paper is to warn that if the Charter continues to disregard state practice, it risks becoming obsolete.
3
Inhoud
1. Introduction ... 4
1.1. The Problem ... 5
1.2. Methodology ... 6
2. Use of Force against Terrorist Organisations as Customary Law ... 8
2.1. Opinio Juris ... 8
3. The Different Perspectives ... 11
3.1. The Restrictionist perspective ... 11
3.1.1. The insignificance of Customary International Law ... 12
3.1.2. The Importance of the Vienna Convention on the Law of Treaties ... 12
3.2. Counter-restrictionist Perspective ... 15
3.2.1. The Language of Article 51 ... 15
3.2.2. Customary Law ... 16
3.2.3. Counter-restrictionists in the ICJ ... 16
3.3. Interim Conclusion ... 17
4. The Argument ... 19
4.1. No Reasonable Alternative ... 19
4.1.1. Traditional methods of dispute settlement ... 19
4.1.2. State Responsibility ... 20
4.1.3. International Criminal Law ... 21
4.2. The Morality of Self-defence ... 22
4.3. Sociological Theory to International Law ... 24
4.3.1. The dynamism of International Law ... 24
4.3.2. A Balance between normativity and concreteness ... 27
4.3.3. Suggestions on the interpretation of Article 51 ... 28
5. Conclusion ... 33 6. Bibliography ... 34 6.1. Books ... 34 6.2. Cases ... 36 6.3. Journals ... 37 6.4. Legislation ... 39 6.5. Websites ... 39 6.6. Other Sources ... 40
4
1. Introduction
Terrorism in the 21st Century has had unmatched and devastating consequences.1 The advancements in technology have meant that individuals are able to cause unparalleled levels of damage.2 This has led to the question of how Terrorist Organisations (TOs) that are not under the control of any state, nor can their actions be attributed to a state, should be dealt with under international law.3
Before 9/11, the consensus was to view terrorism as a criminal law problem to be dealt with without the use of force.4 Any use of force against TOs was generally criticised by both the Security Council (SC) and Member States.5 Examples of this include: Israel’s 1985 raid on the PLO Headquarters6, the United States’ 1986 raid on targets in Libya7 and South Africa’s intrusions into bordering countries.8 The prevailing view was therefore a restrictive one which left no room for states to use force against TOs in the territory of another state.9 However, since 9/11, the international community has more readily recognised that non-state actors can also commit armed attacks and military force can be used against them in response.10 For example, Israel used force against Lebanon-based Hezbollah in 2006 after the latter launched rocket attacks against the former.11 In the 2006 case PCATI v Israel, the Supreme Court of Israel agreed with Israel’s position that it had been the victim of an armed attack by terrorists.12 Instead of criticising Israel’s use of force altogether, the main opposition was that it was disproportionate.13 Also, after the 9/11 attacks, the Security Council adopted Resolution
1
United Nations 'United Nations Global Issues' (Un.org, 2016).
2 For example, the 9/11 attack on the Twin Towers produced more casualties than the attack on Pearl Harbour: see Greg Travalio and John Altenburg, 'Terrorism, State Responsibility, And The Use Of Military Force' (2003) 4
The Chicago Journal of International Law, 97 [online].
3 See for example Bibi van Ginkel, 'Combating Terrorism: Proposals For Improving The International Legal Framework', Realizing Utopia: The Future of International Law (Oxford University Press 2012).
4 Christian J Tams, 'The Use Of Force Against Terrorists' (2009) 20 European Journal of International Law, 364 [online].
5 Ibid. 6
See Security Council Resolution 573 (1985) [online] which characterised the act as aggression in violation of the Charter.
7
Tams (n4) at 367. 8
See General Assembly Resolution 41/38 [online]. 9Tams (n4) at 364.
10
Anthony C Arend, ‘The Human Dignity Lens on Terrorism and Counterterrorism’, Human Dignity And The
Future Of Global Institutions (Georgetown University Press 2014) 154.
11Andreas Zimmerman, ‘The Second Lebanon War: Jus ad bellum, Jus in Bello and the Issue of Proportionality’ (2007) 11 Max Planck Yearbook of United Nations Law 99 [online].
12
Supreme Court of Israel, Public Committee against Torture in Israel v Government of Israel, Case No. HCJ 769/02, 13 December 2006 para 14 [online].
13
5
1373 that acknowledged the right of self-defence in response to the attack by the non-state actor Al-Qaeda.14
According to Tams, other countries have used actual force against terrorists on foreign soil.15 For instance, and similar to the situation in Israel, when Turkey invaded Northern Iraq in 2008, states mindfully abstained from criticising Turkey’s action and instead emphasised that reactions should be proportionate.16 In 2002, subsequent to the Bali Bombings, Australia asserted its right to use force on foreign soil against terrorists threatening to attack it or its nationals.17 More recently when Russia used force against the Chechen rebels in Georgia or when Colombia used force against the FARC in Ecuador in 2008, the international community was silent.18 Other countries like Burma/Myanmar, Rwanda and Tajikstan have also responded to trans-national attacks by non-state entities.19
The practice of using force against TOs is contrary to ICJ case law in Nicaragua and Iran Hostages that requires attacks to be attributed to a state.20 It also gives rise to the question of how the Charter should be interpreted and the relationship of customary law to the Charter.21 We will see that the debate on how the Charter should be interpreted falls between those who favour a restrictive interpretation of Article 51 of the Charter (Restrictionists) and those favouring a wider interpretation (Counter-restrictionists).22
1.1. The Problem
What can be inferred from post 9/11 state practice is that the Charter cannot deal with state practice. It concerns me that the law of armed force under the Charter is being pushed to the side by states. If countries consistently ignore the Charter’s laws of armed force and take self-defence into their own hands without having an organisation like the United Nations to check
14
Security Council Resolution 1373 (2001) [online]. 15 Tams (n4) at 378-380.
16 See Tom Ruys ‘Quo Vadit Jus ad Bellum? A Legal Analysis of Turkey’s Military Operations against the PKK in Northern Iraq’, (2008) 12 Melbourne Journal of International Law 334 [online] where he describes this as being the response of the EU and writes that the international community took the same approach as the EU. 17 Ibid.
18
Tams (n4) at 380. 19
See Christine Gray, International Law and the Use of Force (3rd edn, Oxford University Press 2008) 140; Gregor Wettberg, The International Legality of Self-Defence against Non-State Actors (Peter Lang International Academic Publishers 2007) 190-192, 204.
20
Tams (n4) at 366; see below Part 3.1.
21 Eric Heinze and Malgosia Fitzmaurice, Landmark Cases in International Law (Kluwer Law International 1998) 274-275; See also Tarcissio Gazzini, The Changing Rule on the Use of Force in International Law (Juris Publishing 2005)117-124; Maurice H Mendelson, ‘The Nicaragua Case and Customary International Law’ The Non Use of
Force in International Law (Martinus Nijoff Publishers 1989)90.
22
6
and control the use of force, the potential for countries to unilaterally use force in situations that they subjectively view as threats to themselves increases to potentially disastrous consequences.23
Although the Charter was not written with TOs in mind, it should not fail to recognise the threats posed by them and realise that the dynamics of terrorism leave states no effective alternatives other than the use of force to deal with the terrorist threat. For these reasons, this paper will argue that in order to avoid the law of armed force under the Charter becoming out-of-date, the interpretation of Article 51 of the Charter needs to evolve.
1.2. Methodology
I will take the position that Article 51 should be interpreted according to the counter-restrictionist perspective as it incorporates customary law in the interpretation of the law of armed force. I will account for this interpretation of the Charter based on two theories (i) the sociological theory of international law which argues that society influences the development of law and (ii) a moral conviction which sees self-defence as a fundamental right.
Part 2 will make the argument that current state practice is part of customary law by showing that in addition to state practice, opinio juris also exists. It will not be denied that this position could be refuted due to the difficulties in proving opinio juris. I will point out that the ICJ could play a key role in recognising current state practice as forming part of customary law. In Part 3, it will be pointed out that the Charter’s inability to deal with international terrorism is an issue of interpretation, specifically, how much influence customary law has on the Charter. To show this, I will describe the restrictionist and counter-restrictionist perspectives on how the Charter should be interpreted. The opinions of both scholars and judges of the ICJ will be used to show these two perspectives. After mapping the debate, I will conclude by taking the position that the Charter should be interpreted according to the counter-restrictionist perspective.
23
Afeno Super Odomova, ‘ New Security Threats, Unilateral Use of Force, and the International Legal Order’ (2013) 5 Military and Strategic Affairs 111 where he says that “unilateral and unauthorized use of force has the potential to undermine the universal system of collective security and erode the current international legal framework, as it sets a bad legal precedent”; See also Tams (n4 ) at 359 who argues that the risk of abuse increases when the traditional doctrine of self-defence is not adhered to; But see Bradley F Podiska, Acting
Alone: A Scientific Study of American Hegemony and Unilateral Use-of-force Decision making (Lexington Books
2010) Chapter 2 , who argues against the multi-lateral use of force on the grounds of burden-sharing, inaction, collaboration, legitimacy and reciprocity and instead advocates for the benefits of the unilateral use of force like lower costs and less domestic pressure.
7
In Part 3, I will account for my normative argument that the counter-restrictionist interpretation of Article 51 should be applied based on three arguments. The first is to that the principle of peaceful dispute resolution in Articles 2(3) and 33(1) of the Charter cannot be reasonably applied to the terrorist threat. I will therefore criticise possible alternatives to the use of force, namely State Responsibility, International Criminal Law and traditional means of dispute settlement. I will conclude that there are no reasonable alternatives to the use of force against TOs, which is why the Charter should evolve to have a wider interpretation of the use of force than the current one.
The second argument is based on the moral conviction that states have the rights to defend themselves when their existence is threatened. This argument will be made based on the concepts of sovereignty and the inherency of self-defence.
The third argument that stems from the sociological theory of international law is that the law should develop in accordance with state practice. The New Haven Approach will be used to show that international law must develop with the times and be interpreted in context. The Charter is important as it regulates state behaviour and should therefore be kept functioning. The normative argument will be made that an interpretation of Article 51 should not just be concrete as this could allow for abuse by states, but it should not be too normative or else it will risk being ignored altogether. A balance should therefore be struck between normativity and concreteness. I will also suggest how the ICJ can achieve this balance by proposing how terrorism can be incorporated under a counter-restrictionist interpretation of Article 51. Particularly, I will advise that the ICJ should recognise that an armed attack does not need to be attributed to a state, and that the concepts of imminence and immediacy found in Caroline should be revised to take into account the nature of terrorism and the difficulties of dealing with the terrorist threat. It will be suggested that the Doctrine of Cumulative Events should be the new standard.
8
2. Use of Force against Terrorist Organisations as Customary Law
The statute of the ICJ defines customary international law as ‘evidence of a general practice accepted as law’.24
There must therefore be a practice of states that is based on the belief that they have a legal obligation to act in that manner (opinio juris).25 In Part 4, it will be argued that Article 51 should be interpreted according to the counter-restrictionist perspective which takes into account customary law. We have already seen that states have developed the practice of using force against TOs. I will now make the argument that the element of opinio juris is also satisfied and therefore current state practice falls under customary law.
2.1. Opinio Juris
The element of opinio juris, is satisfied by showing that states consider themselves to be acting according to law. This is difficult to prove, especially when the current practice differs from the law, as is the case with the use of force against non-state actors.26 Shaw explains that on the one hand, positivists believe that a state is only bound by its own consent and therefore if it takes action that it believes to be legal, even just once, it has consented to the relevant rule.27 On the other hand, the argument has been made that it is impossible to prove opinio juris, which makes it irrelevant.28 The International Law Association (ILA) has said that opinio juris can be found by looking at the practice of states.29 Conversely, the International Law Commission stuck to the traditional two-pronged approach, that state practice alone is a habit and needs opinio juris to become custom.30 In its 2014 Second Report, it mentioned that Security Council Resolutions (among other documents like official publications, court jurisprudence and treaties) can also point to the existence of opinio juris.31 Security Council Resolutions 1368 and 1373 acknowledged the right of unilateral self-defence against terrorist
24
Statute of the International Court of Justice 1945, Article 38(1)(b) [online]. 25
Malcolm N Shaw, International Law (7th ed, Cambridge University Press 2014). 26 Shaw (n25) at 62.
27
Ibid at 53. 28
Ibid at 54.
29 See ILA Committee on Formation of Customary (General) International Law, Final Report of the Committee:
Statement of Principles Applicable to the Formation of General Customary International Law. London:
International Law Association, 2000, 9-10 [online].
30 International Law Commission, ‘First Report on Formation and Evidence of Customary International Law’, by Michael Wood, Special Rapporteur, Sixty-fifth session, Geneva, 6 May- 7 June and 8 July-9 August 2013, UN doc. A/CN.4/663, 17 May 2013 [online].
31 International Law Commission, ‘Second Report on Identification of Customary International Law’, by Michael Wood, Special Rapporteur, Sixty-sixth session, Geneva, 5 May-6 June and 7 July-8 August 2014, 59-62 [online].
9
attacks and the point has been made that these resolutions confirm the belief that the use of force against TOs is a right that exists.32
The ILA’s position on opinio juris is advantageous as it does not contain the illogicality of trying to ascertain that a state believes a rule to be law despite the existence of legislation to the contrary. Shaw counters this perception by saying that opinio juris should be seen as the belief by states that their behaviour is law or is becoming law.33 In Nicaragua, the ICJ said that “[reliance] by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law”.34 Responding to armed attacks by TOs with the use of force is not an unprecedented exception to Article 51. The Caroline incident concerned the action of British troops against Canadian rebels who were non-state actors.35 Greenwood points out that the Canadian rebels would be today viewed as terrorists and that nothing in the Webster Formula required an armed attack to come from a state.36 Historically then, there is precedent for the use of force against TOs.37 This, in addition to the Security Council resolutions and the general acceptance of the right to use force against TOs provides a strong argument that opinio juris exists.
Nonetheless, there is clearly an issue surrounding the importance of opinio juris, which is why the ICJ can have a key role in recognising a rule as being backed by law. Shaw mentions Kelsen who believed that deciding on what is custom should be left to the courts and not the “subjective perception of particular states”.38
Given the opportunity, the ICJ can of course maintain it restrictive approach (see Part 3) and reject the notion that current state practice constitutes custom. However with a decision that strays so far from state practice, the danger is that states, as they are currently doing, will not abide by such a ruling. This will be discussed further in Part 4. There is in my opinion a good argument to be made that the use of
32
Clara Portela, ‘Terrorism and the Law of the Use of Force (BITS 2002) [online]; see also Daniel Bethlehem, ‘Principles Relevant to the Scope of A State’s Right of Self-Defence Against An Imminent or Actual Armed Attack By Nonstate Actors’ (2012)106 The American Journal of International Law, 5 [online] where he says that it is accepted that states have a right of self-defence against non-state actors which is reflected in SC resolutions 1368 and 1373.
33Shaw (n25) at 62. 34
Nicaragua (n45) at 109 as quoted by Shaw (n25) at 62. 35
Naomi Lubell, Extraterritorial Use of Force against Non-State Actors (Oxford University Press 2010)35. 36 Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’(2003)4 San Diego International Law Journal, 17 [online].
37
Lubell (n35) at 35.
38 Hans Kelsen, ‘Théorie du Droit International Coutumier’(1939) 1 Revue International de la Théorie du Droit, 253, 264-266, as mentioned by Shaw (n25) at 54.
10
force against TOs is customary, but ideally, the ICJ should recognise this in order to give this area of law some clarity and certainty.
Even if current state practice is accepted as being part of customary law, there is still no consensus on how Article 51 should be interpreted, particularly its relationship to customary law.39 Part of this problem is the difference between the language in the text of Article 51 of the Charter and the interpretation of that article by the ICJ.40 The different perspectives will be described in the next part.
39
Michael Ackhurst, A Modern Introduction to International Law (Allen & Unwin, 1970) 202 where he says that “The whole history of the United Nations has been a series of disputes about the correct interpretation of the Charter”; see also Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th Edn, Routledge, 1997) 364.
40See Jens D Ohlin, The Assault on International Law (Oxford University Press 2015)216 who disagrees with the ICJ’s interpretation of Article 51 and argues that it has no legal authority; See also Michael N Schmitt,
‘Responding to Transnational Terrorism under the Jus ad Bellum: A Normative Framework’, International Law
and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Martinus Nijhoff Publishers
11 3. The Different Perspectives
This part will map the different views of judges and academics as to how Article 51 should be interpreted. In particular, it will describe two main approaches: The restrictionist and the counter-restrictionist approaches. These two standpoints offer polar views on the importance of customary law with regard to the Charter.
3.1. The Restrictionist Perspective
Dr Jackson Maogoto gives a comprehensive understanding of both the restrictionist and counter-restrictionist perspectives in his work Battling Terrorism: Legal Perspectives on the use of Force and the War on Terror.41 He explains that under the restrictionist perspective, Article 2(4) of the Charter is paramount.42 Consequently, states are forbidden from using force. This is however limited by Article 51 where it says that states can use self-defence when faced with an ‘armed attack’.43
The right of states to use force is, as a result of Article 51, strictly limited to them warding off an armed attack and the ‘inherent right’ found in Article 51 in insignificant in that it does not change the right of self-defence.44
The ICJ has interpreted Article 51 in line with the restrictionist perspective. In Nicaragua and the Israeli Wall Opinion, the ICJ made it clear that an armed attack must come from or be attributed to a state.45 Post 9/11 in the 2005 case of DRC v Uganda, the ICJ had the
opportunity to recognise the use of force against TOs. Instead, it stuck to its original position by reiterating that self-defence can only be used in response to an armed attack by a state.46 In line with the ICJ’s judgment in Nicaragua, restrictionists take the perspective that an armed
41
Dr Jackson Nyamuya Maogoto, Battling Terrorism: Legal Perspectives on the Use of Force and the War on
Terror (Ashgate Publishing 2005).
42 Ibid at 169. 43
Ibid; See also Paul FJ Aranas, Smokescreen: The US, NATO and the Illegitimate Use of Force (Algora Publishing 2012)39; Alex J Belamy & Nicholas J Wheeler, ‘Humanitarian intervention in world politics’, The Globalization of
World Politics: An Introduction to International Relations (5th edn, Oxford University Press 2011) 513. 44
The ICJ in Nicaragua (n45) para 195 said that “In the case of individual self-defence, the exercise of this right [of self-defence] is subject to the state concerned having been the victim of an armed attack.”; Maogoto (n41) at 169; See Also Yoram Dinstein, War, Aggression and Self-Defence (3rd ed, Cambridge University Press, 2001) 165-166 where he opines that Article 51 is deliberate in its restriction of the right to self-defence in response to armed attack.
45 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) Merits (1986) ICJ Reports 14, para 195 [online] & Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ, 9 July 2004, para 138 [online].
46 Armed activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) merits (2005), para 146 [online].
12
attack must come from a state as the Charter did not envision attacks from non-state TOs that would trigger a state’s right of self-defence.47
3.1.1. The insignificance of Customary International Law
In rejecting any value of the words inherent right, restrictionists deny that customary
international law plays a role in Article 51 and therefore disagree that the customary right of anticipatory self-defence that was accepted in Caroline, is provided for by the Charter.48 In essence, all the authority for using force in self-defence is found in the black letter law of Article 51 which is neither qualified nor supplemented by customary international law.49 Any use of force therefore needs to be carried out strictly within the framework of the Charter.50
3.1.2. The Importance of the Vienna Convention on the Law of Treaties
Restrictionists also consider that the Charter should be interpreted according to its plain and ordinary meaning, and also in light of the aims of the Charter. Therefore, it should be interpreted according to Article 31(1) the Vienna Convention on the Law of Treaties
(VCLT).51 Under this article ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.
47
Ashley S Deeks, ‘“Unwilling or Unable”: Toward a Normative Framework of Extraterritorial Self-Defence’ (2012) 52 Virginia Journal of International Law, 492 [online]; See also Antonio Cassese, ‘The International Community’s ‘Legal’ Response to Terrorism’ (1989) 38 International and Comparative Law Quarterly, 589, 597; Evan J. Criddle & William C Banks, ‘Customary Constraints on the Use of Force:Article 51 with an American Accent’ (2016) 29 Leiden Journal of International Law [online], who make a difference between conventional and customary restrictionists. From their perspective, the former believe that: (1)force can only be used if there has been an armed attack, and only to end that attack (2)not all force can be seen as an armed attack and all attacks must be attributed to a state. Although they acknowledge that these rigid rules could mean that states are left vulnerable to terrorist attacks from non-states, they stand by their interpretation that Article 51 was not written to protect individual human beings. According to Criddle and Banks, supporters of this perspective include: Michael Bothe ‘Terrorism and the Legality of Pre-Emptive Force’ (2003)14 European
Journal of International Law 229-230; Ian Brownlie, International Law and the Use of Force by States (Oxford
University Press 1963) 366; Olivier Corten, The Law Against War: The Prohibition on the Use of Force in
Contemporary International Law (Hart Publishing 2010) 403; David Kretzmer ,’The Inherent Right to
Self-Defence and Proportionality in Jus ad Bellum’ (2013) 24 European Journal of International Law
242-244;Customary restrictionists argue that the use of force must be proportional and can be used in response to an actual or imminent attack: see Nicholas Rostow, Nicaragua and the Law of Self-Defense Revisited’(1987)11
Yale Journal of International Law 453 where he says that self-defence must be proportional and only be used to
cure the breach. 48
Anthony C Arend, & Robert J Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (Routledge 1993) 73.
49
Maogoto (n41) at 169. 50
Ibid.
51 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331 [online]
13
Article 2(4) of the Charter bans both the use of force and the threat of the use of force. Tom Ruys argues that Article 2(4) is closely linked to the legal mechanisms in Chapter VII that give the Security Council the primary responsibility for the maintenance of international peace and security.52 Seeing as Article 51 allows the right of self-defence ‘until the Security Council has taken measures necessary to maintain international peace and security’, it follows that self-defence was considered by the drafters as a temporary measure to be used while awaiting a response from the Security Council.53 Once the Council has taken the necessary measures, the victim state is no longer permitted to continue to defend itself unilaterally.54
According to Ruys, the counter-restrictionists are of the view that the phrase ‘if an armed attack occurs’ was “only intended to give emphasis in a declaratory manner for self-defence in the case of an armed attack”. 55
He rejects this view saying that even if the ICJ considered the words ‘inherent’ to refer to customary law, it is still difficult to see how the words ‘if an armed attack occurs’ could be declaratory.56
He instead argues that the three elements of interpretation found in Article 31(1) of the VCLT mean that the words ‘if an armed attack occurs’ must portray the scope of permissible self-defence.57
Ruys says that firstly, the ordinary meaning of the words ‘if an armed attack occurs’ prima facie suggest when self-defence can be used.58 He points out that the drafters of Article 51 would have drafted the article in a different way if they had not intended those words to refer to the scope of permissible self-defence.59 He suggests that the drafters could instead have given the phrase ‘if an armed attack occurs’ as an example of when the right of self-defence can be exercised or they could have left the words out altogether.60 He argues that it is
52 Tom Ruys, ‘Armed Attack and Article 51 of the UN Charter: Evolutions in Customary Law and
Practice(Cambridge University Press, 2010)57.
53
See Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (The Lawbook Exchange 2000 )800; see also Patrick Thornberry, ‘‘It seemed the best thing to be up and go’: on the Legal Case For Invading Iraq’ The Iraq War and Democratic Politics (Routledge 2005) 113;Myra Williamson,
Terrorism, War and International Law: The Legality of the Use of Force (Routledge 2009) 111.
54
Ruys (n52) at 58. 55 Ibid.
56
Ibid at 59; See also Josef Mrazek, ‘Prohibition of the Use and Threat of Force: Self-Defence and Self-Help in International Law’ (1989) 27 Canadian Yearbook of International Law,108 [online] who says that ‘A right of self-defence based on customary law outside the Charter does not exist’.
57 Ruys (n52) at 59. 58 Ibid. 59 Ibid. 60 Ibid.
14
unlikely given the principle of effectiveness that the drafters simply chose to add those words in Article 51 without reason.61
Secondly, with regard to the context, Article 51 must be read in combination with Article 2(4), Article 3962, Article 4263 and 5364. According to Ruys, when looked at collectively:
“The picture that emerges is that of a comprehensive regime consisting of an absolute ban on the unilateral use of force by states, supplemented by the creation of a sort of world police, the UN Security Council, the sole body endowed with the power to engage in military enforcement action to maintain international peace and security”.65
Ruys concludes that “the legal regime enshrined in Article 51 can only be seen as a
provisional and exceptional regime, which must be interpreted in a restrictive manner”.66 This is also evident in that Article 51 refers to self-defence in the case of an armed attack while Article 2(4) bans both the use of force and the threat thereof.67 The ban on the use of force in Article 51 is also viewed as a peremptory norm which reinforces the idea that Article 51 is an exception.68
61
Ibid.
62 ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’
63
‘ Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’
64 ‘The Security Council shall, where appropriate, utilize such regional arrangements or agencies for
enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy onthe part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.
The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter’.
65Ruys (n52) at 59. 66
Ibid; See also Ian Brownlie, ‘The Use of Force in Self-Defence’, (1961) 37 British Yearbook of International Law 240 [online].
67 Ruys n(52) at 59. 68
Nicaragua (n45), para 190 ;Alexander Orakhelashvili, ‘ The Impact of Peremptory Norms on the
Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16 European Journal of
International Law 63-64 [online]; Antonio Cassese, The Current Legal Regulation of the Use of Force (Martinus
15
Thirdly, the point that Article 51 is a provisional and exceptional regime is reinforced by the object and purpose of the Charter- to avoid another serious war.69 The Charter is deliberate in giving power to the Security Council to maintain international peace and security in order to limit the unilateral use of force by states.70 Based on the above-given three points,
interpreting the Charter to give effect to customary international law goes against the interpretation of the Charter as required by Article 31(1) of the VCLT.
3.2. Counter-restrictionist Perspective
Proponents of the counter-restrictionist perspective are of the view that the rights of self-defence that existed under customary international law prior to the drafting of the Charter are still recognised by it.71
3.2.1. The Language of Article 51
From the counter-restrictionist perspective the words ‘inherent right’ do carry meaning as they preserve the meaning of self-defence that existed before the Charter.72 The ICJ has ambiguously given authority to this position in Nicaragua where it said that:
“It cannot therefore be held that Article 51 is a provision which ‘subsumes and supervenes’ customary international law. It rather demonstrates that in the field in question, the importance of which for the present dispute need hardly be stressed, customary law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same
content”.73
This section of the Nicaragua judgment in addition to the recognition by the Security Council of the inherency of the right to self-defence have been used by counter-restrictionists to make the argument that the Charter preserves customary law as it existed before the Charter.74
Van den Hole makes the argument that the lack of clarity in Article 51 shows that the drafters relied on pre-existing notions of self-defence.75 It does not explain the scope of the words ‘if
69
Ruys (n52) at 59; Simon Marsden, Strategic Environmental Assessment in International and European Law: A
Practitioner’s Guide (Earthscan 2008) 26.
70 Ruys (n52) at 60. 71 Maogoto (n41) at 170. 72 Maogoto (n41) at 171. 73 Nicaragua (n45) para 175. 74
Maogoto (n41) at 178; See Security Council Resolutions 1368 and 1373 [online] which recognise the inherent right of self-defence in accordance with the Charter.
75 Leo van den Hole,’ Anticipatory Self-Defence Under International Law’ (2003)19 American University
16
an armed attack occurs’.76 Ago suggests that this raises questions about whether the article is referring to the source of the attack or the target thereof.77 This was also discussed by the Court in Nicaragua, which concluded that the armed attack must derive from another state or should be attributable to that state.78 Finally, van den Hole explains that the fact that Article 51 does not state how much force can be used in self-defence shows that the Article is heavily reliant on customary law.79 It can therefore be concluded that the language of Article 51 is designed to protect the right of self-defence under customary international law.
3.2.2. Customary Law
Also important to the counter-restrictionist perspective is the assertion that under customary international law as outlined in Caroline, states had the right to use anticipatory self-defence when faced with a hostile threat.80 Maogoto explains that in recent times, proponents of the Counter-restrictionist perspective have pointed out the “impracticability of applying a literal interpretation of Article 51 in an age of advanced weapons and delivery systems and
heightened terrorist activity throughout the world”.81 They further argue that given how advanced modern weapons are, it is ridiculous to expect states not to defend themselves when faced with an attack.82 This, in their view effectively denies the state a right of self-defence all together.83 Importantly, they believe that this principle applies when a state is faced with a terrorist attack.84
3.2.3. Counter-restrictionists in the ICJ
The ICJ has not taken a unanimous stand on whether or not anticipatory self-defence falls under Article 51. In Nicaragua, the ICJ noted that “the issue of the lawfulness of a response to an imminent threat of armed attack has not been raised...the Court expresses no view on that
76
Ibid.
77 Roberto Ago, ‘Addendum to the 8th Report on State Responsibility’(1980)2, Yearbook of the International Law
Commission, 52, para. 83, U.N Doc. A/CN.4/318/ADD,52[online].
78
Nicaragua (n45) para 195. 79
Van den Hole (n76) at 79 cites Timothy L.H. McCormack, Self-Defence in International Law-The Israeli Raid on
the Iraqi Nuclear Reactor (The Magness Press 1996)120 and Myres S McDougal, ‘The Soviet-Cuban Quarantine
and Self-Defence’ (1963) 57 American Journal of International Law 597, 599-600. 80
Maogoto (n41) at 171; Niels M Blokker and Nico Schrijver, The Security Council and the Use of Force: Theory
and Reality, a need for Change? (Martinus Nijhoff Publishers 2005) 80; see also Rachel Bzostek, Why Not Preempt?: Security, Law, Norms And Anticipatory Military Activities (Routledge 2016).
81
Maogoto (n41) at 171.
82 Ibid; See also Richard J Erickson, Legitimate Use of Military Force Against State Sponsored International
Terrorism ( Air University Press 1989)136-141[online]; Amos N Guiora, Modern Geopolitics and Security: Strategies for Unwinnable Conflicts (CRC Press 2014).
83 Ibid Maogoto. 84
17
issue”.85 Judge Schwebbel did however say that Article 51 was not limited to “if and only if an armed attack occurs”.86
Several judges of the ICJ align themselves with the counter-restrictionist perspective by expressing their disapproval over the general acceptance that an armed attack must have been perpetrated by a state. In the Israeli Wall Opinion, Judge Higgins said that “There is, with respect, nothing in the text of Article 51 that thus stipulates that self-defence is available only when an armed attack is made by a state. That qualification is rather a result of the Court so determining in [Nicaragua]”.87 Similarly, in DRC v Uganda, Judge Kooijmans said that “If armed attacks are carried out by irregular armed bands…against a neighbouring state, they are still armed attacks even if they cannot be attributed to the territorial state [from which they originate].88 Judges Buergenthal and Simma also argued in their separate opinions that states could use self-defence against armed attacks even if the attacks could not be attributed to the territorial state.89 Finally, Judge Schwebbel said that “I do not agree that the terms or intent of Article 51 eliminate the right of self-defence under customary international law, or confine its entire scope to the express terms of Article 51”.90 In his opinion in the Nicaragua case, he cites Sir Humphrey Waldock who believes that Art 51 does not cut out the right of customary self-defence and that this right is not only valid in response to an armed attack by a state.91
3.3. Interim Conclusion
The counter-restrictionist perspective argues that the language of Article 51 preserves the right of self-defence under customary international law. Although the ICJ is restrictive in its interpretation, some judges have argued that he ICJ’s interpretation does not stem from Article 51 which should be interpreted in accordance with customary law.
This paper recommends that the law should develop in accordance with the counter-restrictionist perspective of self-defence as it allows for a wider interpretation of Article 51 that can include the terrorist threat. Under this perspective, both pre and post-Charter customary law would also fall under Article 51. The restrictionist perspective fails to
85
Nicaragua (n45) para 194.
86 Ibid at para 173. 87
Israeli Wall Opinion (n45) para 33. 88
DRC v Uganda (n46) para 30.
89 See separate opinion of Judge Simma, at para 12[online]; Separate opinion of Judge Kooijmans at (para 30) and Judge Buergenthal’s declaration in the Israeli Wall Opinion, at para 6 [online].
90
Nicaragua (n45) Dissenting Opinion of Judge Schwebbel, para 173 [online].
91 Claude H M Waldock, 'The Regulation Of The Use Of Force By Individual States In International Law' (1952) 81 Collected Courses of the Hague Academy of International law, 234[online].
18
recognise the seriousness of the terrorist threat and is unrealistic in expecting states not to defend themselves against TOs despite the threat that they present. I will account for my position in the next part.
19
4. The Argument
The interpretation of Article 51 must evolve according to the counter-restrictionist perspective based on three arguments. The first is that the modern day terrorist threat cannot be dealt with through traditional pacific means. There are therefore no reasonable alternatives to the use of force. The second is the moral conviction that states have the right to defend themselves when their existence is threatened. The final argument is based on the sociological theory of
international law- that norms should develop to reflect the practice of states; otherwise they will not be adhered to. The ICJ’s restrictionist interpretation of Article 51 is too far on the side of normativity as it is failing to take into account the exercise by states of their fundamental right of self-defence. It will be argued that a balance should be struck between normativity and concreteness and suggestions will be made on how this could be achieved.
4.1. No Reasonable Alternative
Articles 2(3) of the Charter requires states to settle disputes pacifically. Under article 33(1) states must first attempt to settle their disputes through ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’. Restrictionists may therefore argue that the use of force in self-defence is not necessary and that terrorism can be dealt with through other avenues. The argument that self-defence is fundamental therefore necessitates proof that other avenues are inadequate.
4.1.1. Traditional methods of dispute settlement
Travalio and Alternburg explain that terrorist groups cannot be influenced by traditional diplomatic and economic means due to their “decentralised and transnational character, lack of accountability to constituencies to which governments are traditionally accountable, their clandestine nature, and their eagerness to acquire and willingness to use weapons of mass destruction”.92
This explanation shows that methods like negotiation, enquiry, mediation and conciliation would be ineffective. One of the main alternatives to the use of force that states have tried and continue to try is to use sanctions against TOs, particularly, to freeze assets that belong to TOs and individuals or entities associated with them.93 Recently resolution 2253 expanded this sanctions framework to include Daesh (Isis).94 Sanctions cannot wholly be relied upon however as TOs like Daesh are largely self-funding.95 The US Treasury estimates
92
Travalio and Altenburg (n2) at 113. 93
See Security Council Resolution 1267 (1999) [online]. 94 Security Council Resolution 2253 (2015) [online]. 95
20
that Daesh may have earned several million dollars a week in 2014 from the sale of crude oil through middle men who then sold it on to countries like Turkey and Syria.96 They made 20m dollars through ransom payments for kidnapping in 2014 and also make money by robbing, looting and through extortion.97 Ban Ki Moon said that other TOs like Boko Haram, the Taliban and Al-Shabaab are employing similar techniques that make it difficult for governments to find evidence and for the private sector to recognise tainted resources.98
From my perspective, it is also important to note that Articles 2(3) and 33(1) aim at
preventing the use of force by states at the stage when a dispute arises. There seems to be an assumption that the dispute in question is a clear one, e.g. a maritime boundary issue. The issues that states face with TOs are not so easily defined as the main goal of TOs is to bring down democracy by forcing governments to respond harshly.99 Even if the disputes were clear, the starting point for states is that they have already been attacked and they are faced with the question of how to respond. The common law aphorism ‘don’t bring a gun to a knife fight’ is about using proportional force. The idea here is that you cannot use deadly force against non-deadly force. This idea is also present in Caroline which requires the use of force in self-defence to be both necessary and proportional. The corollary to this is that when faced with deadly force, a state can reasonably respond using deadly force.
4.1.2. State Responsibility
When terrorist acts are state-funded, dealing with terrorism is much more straight forward as the State itself could be held responsible under the laws on State Responsibility.100 Under Article 8, ‘The conduct of a person or a group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out that conduct’. Although this article follows Nicaragua, international terrorism was not the focus of the Draft Articles and it has been said that the inherent right of self-defence in Article 51 supersedes the Draft Articles.101 In addition to this, cases brought before the ICJ are dependent on the States
96
Ibid. 97
Ibid.
98 United Nations 7587th Security Council Meeting, Unanimously Adopting Resolution 2253 (2015), Security Council Expands Sanctions Framework to Include Islamic State in Iraq and Levant [online].
99
Ozgur Nikbay and Suleyman Hancerli, Understanding And Responding To The Terrorism Phenomenon (IOS Press 2007), 326; For a more comprehensive understanding on how terrorism adversely affects democracy, see Paul Wilkinson, Terrorism Versus Democracy: The Liberal State Response (3rd edn, Routledge 2011)75.
100
International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN DOC No A/CN.4/L.602/Rev.1 (2001)[online].
101
21
involved accepting the ICJ’s jurisdiction.102
This is obviously an issue when dealing with non-state parties or even with non-state parties that are being accused of aiding terrorists.103
4.1.3. International Criminal Law
International Criminal Law arguably has too many shortcomings to deal with terrorism effectively. The first hurdle is that there is no clear definition of terrorism.104 According to Tim Stephens, “the absence of the lack of a clear legal conception of terrorism has led to significant confusion in understanding the nature and legal consequences of terrorist violence”.105 Another problem faced by international criminal law is international cooperation. When a state is faced with international terrorism, it is necessary for the state from which the terrorists operate to cooperate with the victim state. There are currently thirteen conventions that criminalise terrorist acts.106 Under these conventions, state parties are charged with extraditing or prosecuting individuals or organisations alleged to have breached a convention.107 According to Mark Lawless, there are two problems surrounding the duty to prosecute or extradite. These are: the lack of international agreement on how to deal with terrorists and the lack of an international judicial institution that can prosecute suspected terrorists.108 Terrorist suspects cannot be tried at the International Criminal Court for example as terrorism is not a crime under the Rome Statute.109 Therefore, if a state is unwilling or unable to extradite or prosecute individuals, criminal law, both domestic and international loses its usefulness.
Also, under International Criminal Law, individuals are prosecuted based on their individual criminal responsibility. This is problematic as TOs form part of a system. Arguably then, prosecuting individuals is insufficient to bringing down TOs. In this vein, it has been argued that International Criminal Law does not properly take into account the motives of terrorists or the international nature of the organisations to which they belong.110 Cassese explains that motive is unique to terrorism because “it serves to differentiate terrorism as a manifestation of
102
ICJ Statute (n24) Articles 36(1) and (2).
103 Kimberley N Trapp, State Responsibility for International Terrorism: Problems and Prospects (Oxford University Press 2011) 132.
104
Tim Stephens, 'International Criminal Law and the Response to International Terrorism' [2004] 27(2)
University of New South Wales Law Journal, 455 [online].
105 Ibid. 106
All available on the UN Treaty collection page[online].
107 Mark Lawless, 'Terrorism: An International Crime?' (2008) 9 Canadian Military Journal [online]. 108
Ibid. 109
Aviv Cohen, 'Prosecuting Terrorists At The International Criminal Court: Re-evaluating An Unused Legal Tool To Combat Terrorism' (2012) 20 Michigan State International Law Review,220 [online].
22
collectivecriminality from criminal offences (murder, kidnapping and soon) that are instead indicative of individual criminality”.111 He further explains that terrorist acts are normally carried out by groups or organisations or individuals acting for them, and are based on “a collective set of ideas or tenets”.112 For him, this makes the difference between a terrorist act, and a general criminal act, as motive in criminal law is normally irrelevant.113 The element of motive is fundamental in understanding terrorism as a system which cannot easily be brought down by prosecuting individuals.
In addition to this, there is no effective international police agency and failed states where TOs operate often have corrupt police forces.114 Also, extradition regimes are inadequate115 and although several scholars have argued for terrorism to be included in the Rome Statue116 and in February 2015, Romania and Spain proposed the creation of an International Court against Terrorism,117 there is currently no effective international tribunal that can deal with terrorist acts. For these reasons, the use of armed force has been seen to be preferable as it lessens the risk of terrorist actions ending in impunity.118
It is therefore clear that traditional means of dispute settlement including the laws of state responsibility and international criminal law are not able to deal with the terrorist threat. The only reasonable form of self-defence left after the other avenues have been exhausted is the use of force.
4.2. The Morality of Self-defence
My second argument as to why the interpretation of Article 51 should develop is based on a moral conviction of the right of self-defence, i.e. that self-defence is fundamental.
States consistently use the plea of self-defence to justify the international use of force119 and have the right to do so when they are threatened.120 Heinze advocates for this position by
111Antonio Cassese 'Responding To Terrorism: The Quest For A Legal Definition The Multifaceted Criminal Notion Of Terrorism In International Law' (2006) 4 Journal of International Criminal Justice, 938 [online]. 112
Ibid. 113 Ibid. 114
OECD 'Terrorism, Corruption And The Criminal Exploitation Of Natural Resources' (OECD, 2016) [online]. 115
Travalio and Altenburg (n2) at 99.
116 See for example Cohen (109) at 20; Cecil A J Coady, ‘Terrorism and the Criminal Law’ The Constitution Of The
Criminal Law (Oxford University Press 2013); Kirsten J Fisher, Moral Accountability And International Criminal Law: Holding Agents Of Atrocity Accountable To The World (Routledge 2012); Robert Cornall, 'The Effectiveness
Of Criminal Laws On Terrorism', Law and Liberty in the War on Terror (The Federation Press 2007). 117
Bogdan Aurescu 'Does The World Need An International Court Against Terrorism?' (World Economic Forum, 2015)[online].
118 Travalio and Altenburg (n2) at 4. 119
23
highlighting that “under a more communtarian interpretation of realism, and considering the just war tradition’s tendecy to privilege the right of self-defence, all states have the right to defend themselves to ensure their survivial”. 121 Carl Wellman explains that every state has internal and external sovereignty.122 Based on this sovereignty, each state has the moral rights of political authority, which is the right to legislate and execute law within its territory, and political independence, the right against external interference with its political authority.123 Internally, sovereignty is warranted because without law and order, i.e. the state of nature, people’s moral rights would be infringed by rebellious people.124
Therefore, political authority is morally defensible in that it is necessary in order for a state to protect its citizens from harm.125 External sovereignty is “directly grounded upon the fact that it is a necessary
condition of the effective exercise of its moral right to political authority and, thus, indirectly upon the grounds of its internal sovereignty”.126 A state cannot govern its internal affairs effectively if it is subjected to external interference.127 The actions of TOs are designed to interfere with the internal sovereignty of a state; therefore, self-defence against TOs is morally justified in order for a state to retain its sovereignty so as to be able to protect its citizens.128
The main idea behind the moral right of self-defence is therefore that states have the right to protects themselves from harm. This is their inherent right. Due to the nature of modern day terrorist attacks (surprise attacks with no warning) and the weapons available to terrorists, this right of protection should not require states to be attacked before they can defend themselves. The counter-restrictionist perspective is preferable because it allows customary anticipatory self-defence.129 Vattel opined that a state could act in self-defence if it had been attacked or if
120 Mark R Amstutz, Rules Of The Game: A Primer On International Relations (Routledge 2016). In section R 5.1: ‘Make the Safety of Your Country a Top Priority’.
121
Eric A Heinze, Global Violence: Ethical And Political Issues (Routledge 2016), in section: ‘International Relations and Just War Theory’.
122
Carl Wellman, Terrorism and Counterterrorism: A Moral Assessment (Springer 2013)103. 123
Ibid; see also Daniel Philpott, ‘Ideas and the Evolution of Sovereignty’, State Sovereignty: Change and
Persistence in International Relations(Pennsylvania State University Press 1997) 20.
124
Wellman (n122) at 104. 125
Ibid.
126 Ibid. See also Fernando R Tesón, ‘The Kantian Theory of International Law’ (1992) 92 Columbia Law Review 52 [online].
127
Wellman(n122) at 104. 128 Ibid 104-105.
129
24
it perceived itself as being seriously threatened to authorize it to ward off injury by force.130 He rejected the idea of waiting for an attack to take place before taking defensive action.131 Similarly, Pufendorf believed that taking defensive action prior to being attacked was a matter of reason and that the natural instinct of a state to defend itself comes from the natural instinct of man to defend himself.132 If states did not have this instinct, it would signify the end of mankind.133 This notion is still very much applicable today, especially because the potential of destruction is much graver due to weapons of mass destruction. 134 The moral right of states to defend themselves and their natural instincts to do so means that an entirely normative
interpretation of the Charter that favours aspirations in contradiction to reality is unlikely to succeed as states will always act to preserve themselves. This forms part of my main argument that norms in international law should develop to reflect the practice of states.
4.3. Sociological Theory to International Law
Given the seriousness of the terrorist threat and the lack of peaceful alternatives, it is
unsurprising that states respond to terrorist attacks with the use of force despite international rules. To remedy this, international rules should accept and reflect the moral rights of states by developing in unity with social reality.
According to Edda Blenk-Knocke, the sociology of international law relates to the
interdependence between international law and social reality.135 It is mainly about law as a result of social processes, i.e. the emergence of law and its impact on society.136
4.3.1. The dynamism of International Law
In order to be effective, international law must be capable of both recognising societal changes and adjusting to them. Blenk-Knocke writes about Max Huber’s perspective on the sociological theory that Huber “considered the duality between law and social reality not to be
130 Emmerich de Vattel, The Law of Nations; Or Principles of the Law of Nature, Applied to the Conduct and
Affairs of Nations And Sovereigns, Chapter III §42 at 248(Joseph Chitty edn., T. & J. W.Johnson, Law Booksellers
1844) 1758. 131 Ibid.
132 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, Book II 283 [195] (1688). 133
Ibid. 134
William C Bradford ‘ The Duty to Defend Them: A Natural Law Justification For the Bush Doctrine of Preventive War’ (2004) 79 Notre Dame Law Review, 1365 [online].
135
Edda Blenk-Knocke, ‘Sociology of international Law’, in Encyclopedia of Public International Law:
International Relations and Legal Cooperation in General Diplomacy and Consular Relations (Elsevier Science
1986) 351[online]. 136
25
equivalent in all realms”.137 For him, private law had the biggest gap between law and
reality.138 In contrast, he found the gap to be smallest in international law because it “depends on governmental policy making processes, resulting in a particular correspondence between international law and social reality”.139 Huber’s idea of international law shows it to be fluid and dependant on governments and the decisions they make to confront reality. It would therefore be a mistake to view international law simply as a body of rules completely divorced from politics.140
Chen explains that although international law has its roots in natural law theory, the
nineteenth and twentieth century approach to international law was dominated by positivism and was therefore rule-based.141 International law was therefore understood to be a body of rules between states.142 Chen criticises this rigid view of international law.143 He argues that rules can only make sense with reference to the purposes and policies which caused their creation and that viewing law in the abstract does not aid in understanding the dynamism of law in real life because law is “based on what real human beings think and do”.144
Similarly, Myres S. McDougal and Harold D. Laswell built on legal realism145 by creating a policy-oriented approach called the New Haven School.146 Chen describes the New Haven School as “a theory about international law rather than a theory of international law” that
137
Ibid; For a complete overview of Huber’s theory, see Jost Delbrük, ‘Max Huber’s Sociological Approach to International Law Revisited’ (2007)18 European Journal of International law.
138
Blenk-Knocke (n135) at 351. 139
Ibid; See Also Lung-chu Chen, An Introduction to Contemporary International Law: A Policy-oriented
Perspective (3rd edn Oxford University Press, 2015) 11.
140 Aaron Fichtelberg explains that “the policy-oriented approach to international law argues that rule-based conceptions fundamentally misrepresent the role that law plays in political relations”. Law at the Vanishing
Point: A Philosophical Analysis of International Law (Routledge 2016)41; See also Tim Hillier, Sourcebook on Public International Law (Cavendish Publishing Limited 1998)15.
141
Chen (n139) at 13; see also Anne Boyle and Christine Chinkin, The Making of International Law (Oxford University Press 2007) 11-14.
142 Chen (n139) at 13; For more on the rule-based conception see Fichtelberg (n140) at 41-43. 143
See also Boyle A and Chinkin C (n141) at 14 where they say that the New Haven Approach challenges “the view that law is rational, neutral objective and principled”.
144 Chen (n139) at 13; See also Edith Brown Weiss, ‘The New International Legal System’, Perspectives on
International Law (Kluwer Law, 1995) 65-67.
145
Legal realists argued that international law was subservient to international politics: See George F Kennan,
American Diplomacy (University of Chicago Press 1984); Kenneth Waltz, The Use of Force: Military Power and International Politics (4thed University Press of America 1993); Hans Morgenthau, Politics Among Nations (6th ed. McGraw-Hill 1985).
146Radhika Withana, Power, Politics, Law: International Law and State Behaviour During International Crises (Martinus Nijhoff Publishers 2008)51; The works on the policy-oriented approach are vast but include: Myres S McDougal ‘Some Basic Theoretical Concepts About International Law: A Policy Oriented Framword of Inquiry’ (1960)4 Journal of Conflict Resolution,337-354; Myres S McDougal & William M Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective (1981).
26
places international law in a contemporary context rather than an unrealistic world of
independent rules.147 Chen explains that an important function of the policy-oriented approach is that it is problem-solving due to its active view of the role of law in society and its relation of the law to “relevant social, community and decisional contexts and variables”.148 In addition to this, it accepts that states are no longer the main actors in international law. The new actors range from multi-national corporations and non-governmental organisations to, drug cartels and terrorist organisations.149 The recognition of TOs as international actors is particularly important with regard to the Charter which only envisioned states as actors in the international plane. The human rights abuses of multi-national corporations led to
international legislation aimed at controlling the actions of these corporations in order to ensure respect for human rights.150 Just as the behaviour of multi-national corporations can influence the evolution of international law, so should the behaviour of TOs influence how the law of armed force develops.
The policy-oriented approach is mainly criticised by positivists on the basis that it mixes politics, law and political science.151 Schachter’s critique of the policy-oriented approach is that “by subordinating law to policy, the McDougal approach virtually dissolves the restraints of rules and opens the way for partisan or subjective policies disguised as law”.152 It is true that codifying law in multi-lateral treaties has the advantage of providing more certainty in what the law is and limiting the sovereignty of states by binding them to a specific set of rules.153 However, in reality, the existence of rigid legal rules that require states to abide by them to their detriment will lead to states not following those rules. The policy-oriented approach would accept that Article 51 was written without TOs in mind but that the aim was to protect states. It would follow that the origin of the threat has changed but that does not subtract from the need of states to protect themselves. The law would therefore develop to allow states to use force against TOs due to it taking into account the contemporary context of
147
Chen (n139) at 14. 148 Ibid.
149
Edith Brown Weiss (n144) at 65-67; Molly Land, ‘Reflections on the New Haven School’ (2013-2014) 58 New
York Law School Review.
150 See United Nations “Protect, Respect and Remedy” Framework [online] and Guiding Principles of Business and Human Rights [online].
151
See Bruno Simma & Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A positivist View’ (1999) 93 American Journal of International Law, 302-305.
152
Oscar Schachter, Panel Remarks, McDougal’s Jurisprudence: Utility, Influence, Controversy, (April 26, 1985) in 79 American Society of International Legal Procedure, 266, 267.
153Hillier (n140) at 14 says that the rule based approach stresses the normativity of the law but loses its concreteness, and the policy based approach stresses concreteness but loses the normativity of the law.
