Terrorism and the Right of Self-Defence

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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)

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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.

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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

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1. Introduction Terrorism in the 21

st 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 Libya

7 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. 11

Andreas 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

Tams (n4) at 379.

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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

See below Part 3.

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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.

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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.

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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].

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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. 33

Shaw (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.

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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 (7

th Edn, Routledge,

1997) 364. 40 See 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 2007)168.

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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 (5

th 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 (3

rd 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].

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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 on the 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’. 65

Ruys (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 Nijoff Publishers 1986)150.

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



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 International Law Review, 79.

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


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


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

Maogoto (n41) at 170.

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


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

BBC, 'What is 'Islamic State'(BBC 2015)[online].

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

Travalio and Altenburg (n2) at 110.

21

involved accepting the ICJ’s jurisdiction.102

This is obviously an issue when dealing with non-

state parties or even with 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]. 110

Travalio and Altenburg (n2) at 98.

22

collective criminality from criminal offences (murder, kidnapping and so

on) 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

111

Antonio 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


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


Gray (n19)114.

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

See above Part 3.2.

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

Ibid.

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 (3

rd 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 (4

thed University Press of America 1993); Hans Morgenthau, Politics Among Nations (6

th

ed. McGraw-Hill 1985). 146

Radhika 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. 153

Hillier (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.

27

the threat of terrorism, and the aim of states to protect themselves. It does not need to signify

an entirely new set of arbitrary rules, but rather a widening of the interpretation of Article 51

that is more in line with the present-day threat of terrorism. In the next part, I will suggest

how Article 51 could be interpreted.

4.3.2. A Balance between normativity and concreteness

As mentioned in the previous part, there is a need for international law to be dynamic and for

it to provide a degree of certainty. There should be a clear legal set of rules, but those rules

must also take into account the practice of states.154

On the one hand, the Charter should be

seen as a necessary attempt to limit the power of states to create law. On the other hand, it

should not take away the need for states to respond to contemporary threats by restricting

them through rigid legal rules. There should therefore be a balance between normativity and

concreteness in international law.155

According to Koskenniemi, normativity and concreteness are the two conditions that must be

fulfilled in order to show that the law is objective.156

Normativity relates to the law being

distanced from the will of states and their behaviour while concreteness is about the law being

distanced from theories of natural justice.157

Essentially, concreteness is law that reflects

social circumstances, i.e. the will and behaviour of states.158

For Koskenniemi the sociological

theory of law is concrete.159

The current interpretation of Article 51 is arguably too far on the side of normativity as it does

not reflect the current will and practice of states.160

Fassbender warns that the gap between

154

Milano states that “the relationship between social reality and law is a basic problem of every legal order”. He explains that the relationship between normativity and concreteness has been debated on for centuries and there is still no conclusive argument about what the relationship should be. He says that every norm having a legal nature must be referred to reality, but “to reduce norms to reality by describing what already exists in the world factually would be to strip them of their normativity’”: Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy (Martinus Nijhoff Publishers 2006) 21. 155

See Martti Koskenniemi, ‘International law in the World of Ideas’, The Cambridge Companion to International Law (Cambridge University Press 2012) 50 where he explains that the normativity of the law is idealistic in that it has to do with what the law ought to be. However, law cannot exist in abstraction and so must reflect what is happening in the political and economic world. 156

Martti Koskenniemi, The Politics of International Law (Hart Publishing Ltd 2011) under section entitled: ‘The Content of the Rule of Law: Normativity and Concreteness’. 157

Ibid. 158

Ibid. 159

Ibid. 160

Konskenniemi points out that international lawyers have criticised the sociological perspective arguing that “legal rules whose content or application depends on the will of the legal subject for whom they are valid are not proper legal rules at all, but apologies for the legal subject’s political interest”. He also says that “reconstructive doctrines [that] have attempted to prove the normativity of the law, its autonomy from politics [...] have become vulnerable to the charge of utopianism”.

28

norms and reality should not become too wide, otherwise the norm will no longer be effective

and it will not be able to control reality.161

For him, there must be harmony between the

Charter and its “constitutional environment”.162

If the environment changes fundamentally,

the relevant rules should adapt to match the new state of affairs or the Charter risks becoming

a constitution in name only.163

Fassbender’s warning is directly applicable to the modern day threat of terrorism. The ICJ’s

interpretation of Article 51 could mean that TOs are afforded a certain level of impunity

against military responses, while themselves launching attacks on states on massive scales,

due to the non-involvement of the ‘host’ state – something which no reasonable state can

accept.164

This is a serious problem as the traditional state against state conflict is no longer

the norm.165

Just as the ICJ interpreted Article 51 restrictively following the Second World

War, it may need a re-interpretation of Article 51 that takes into account the challenges of

modern day terrorism and the practice of states in order to ensure the protection of the

Charter.

4.3.3. Suggestions on the interpretation of Article 51

As the ICJ’s interpretation of Article 51 is the main source of contention, it is necessary for

the ICJ to re-interpret Article 51 in order to achieve a balance between the normative

aspirations of the Charter, and the reality of state practice in contradiction to the Charter. The

most obvious suggestion is the recognition that an armed attack does not have to come from a

state. Essentially, the ICJ should interpret the Charter according to the counter-restrictionist

perspective discussed in Part 3.2. However, in order to do this, the ICJ must provide a clear

understanding of what a TO is.

A TO could be recognised by the fact that it is state-like, i.e. it controls its own territory, has

an army and advanced military weapons and the aim of interfering with the sovereignty of

other states through violence. There could also be a transnational requirement- that is that

161

Bardo Fassbender, The United Nations Charter as the Constitution for the International Community (Martinus Nijhoff Publishers 2009) 117. 162

Ibid. 163

Fassbender quotes Karl Loewenstein, Political Power and the Governmental Process (The Chicago University Press 1957) 148; See also Oliver Jütersonke, ‘Realist Approaches to International Law’ The Oxford Handbook of the Theory of International Law (Oxford University Press 2016) 330 who Sees concreteness in law as referring to its ability to respond to the changes in the behaviour, will and interests of states and other authoritative actors while normativity is the ability to not be influenced by the former. 164

James A Green, The International Court of Justice and Self-Defence in International Law (Hart Publishing 2009) 48. 165

Ibid.

29

attacks by TOs must be committed on another state and must reach the same threshold as

attacks by states in order to be considered to be armed attacks. Put in much simpler terms, the

idea here should be that an attack by a TO that if committed by a state would trigger the right

of self-defence, should trigger that right. This would only apply if the host state is unable to

deal with the TO operating on its territory.

An important point which I believe should be elaborated on is that in interpreting Article 51,

the ICJ should take into account the nature of terrorism. TOs like Daesh do not follow the

traditional concept of war. Their armies do not wear uniforms to distinguish themselves and

their fighters are civilians in the sense that they are not part of any state army. Daesh instead

encourages people to wage jihad wherever and whenever they can, relying on the element of

surprise and inflicting as much damage as state armies are capable of. A victim state can

simply not defend itself against such an organisation while using old notions of war.

International terrorism should be viewed as a “modern subspecies of warfare, which is at least

arguably not entirely governed by the rules of traditional warfare and does not involve formal

combat between states”.166

Denying this is providing TOs with a legal loophole from which

they can in theory operate and circumvent the rule of law.167

4.3.3.1. Redefining Caroline

I mentioned before that the ICJ should take into account both pre and post Charter customary

law. The Caroline Formula is particularly useful due to the ideas of proportionality and

necessity. However, the Caroline formula itself should be updated by the ICJ to reflect the

nature of terrorist attacks.

According to Green, the language ‘leaving no moment for deliberation’ makes clear that the

feared attack must be imminent, i.e. there must be a temporal connection between the threat of

attack and the response to it.168

Green explains that according to the Caroline Formula, the

temporal connection forms an aspect of the criteria of necessity and proportionality, i.e., the

use of force must be necessary and must be proportionate to the attack itself.169

166

Rumyana Grozdanova, ''Terrorism' - Too Elusive a Term for an International Legal Definition?' (2014) 61 Netherlands International Law Review, 321[online]. 167

See John C Yoo and James C Ho, ‘The Status of Terrorists,’ (2003)44 Virginia Journal of International Law; For a rebuttal, see Anna Goppel, Killing Terrorists: A Moral and Legal Analysis (Walter de Gruyter 2013) 88-90. 168

Green (n 164) at 97. 169

Ibid; See also David Kretzner, 'Use Of Lethal Force Against Suspected Terrorists', Counter-Terrorism: International Law and Practice (Oxford University Press 2012) 623 in which he compares the interpretations of proportionality as being either that force must be proportional to the force by the terrorist organisation, or

30

Under the umbrella of necessity is the concept of immediacy.170

In Nicaragua, the ICJ made a

link between necessity and the speed of the response after an attack.171

In essence, this means

that self-defence can only be legitimate if a response is taken without delay subsequent to an

armed attack.172

Both criteria of imminence and immediacy pose problems when dealing with international

terrorism. When it comes to immediacy, Green argues that there are several logical reasons

why there may be a lapse in time between an attack and the response of a State to that attack

which do not make the response any less necessary. For example, if a large scale response is

necessary, it may take time to mobilise a suitable force as occurred in the Falklands after the

Argentine invasion.173

Another factor could be the geographic location of the attackers with

regards to the location of the attack.174

Professor Cassese submitted that self-defence can be seen as necessary if the victim state has

failed to resolve a dispute using peaceful means.175

A gap in time between the incident and the

use of force could therefore signify the failure to peacefully resolve a dispute and not

necessarily that the use of force was needless.176

The temporal aspects of imminence and immediacy have also been criticised on the basis that

imminent terrorist threats are not easily identified.177

Terrorist attacks are generally

unexpected and random.178

The requirement of imminence does not take proper account of

modern warfare against TOs. If the use of force in self-defence is confined to the time during

which the attack is in progress, the targeted states would be left powerless.179

To deal with

this problem, the Doctrine of Cumulative Events has been used to justify the use of force not

against a specific episode of terrorism, but in the context of repeated terrorist attacks.

that it should not exceed the force necessary to repel or quash an attack; for an in depth analysis on proportionality, see Kretzner (n47). 170

See Murray C Alder, The Inherent Right of Self-defence in International Law (Springer 2013)20, in which he discusses the legal commencement of an armed attack at looks at necessity and immediacy conjointly. 171


Ibid; See also Badr GM, ‘The Exculpatory Effect of Self-Defence in State Responsibility’ (1980) 10 Georgia Journal of International and Comparative Law 1, 25, as mentioned by Green (n164) at 102. 173

Green (n 164) at 102. 174

Ibid Green. 175

Antonio Cassese, ‘The International Community’s “Legal” Response to Terrorism’ (1989) 38 International and Comparative Law Quarterly, 598-599, as quoted in as quoted in Anthony C Arend, & Robert J Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (Routledge 1993) 163. 176

Ibid. 177

Green (n164) at 104. 178

Gazzini (n21) at 191 179

Ibid at 192.

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4.3.3.2. The Doctrine of Cumulative Events

According to Gazzini, under the Doctrine of Cumulative Events, “instead of expiring

immediately after any single attack, the right to self-defence survives and allows States to take

the forcible action necessary to put an end to a chain of attacks”.180

He gives the example of

the use of force against Afghanistan in 2001 which was argued by the US to be crucial to

respond to the ongoing threat posed by the terrorist groups in Afghanistan.181

In this situation,

it was generally acknowledged by other states that the “terrorist activities were being carried

out from Afghan territory within the framework of a large hostile military plan”.182

This

doctrine is in line with the counter-restrictionist doctrine that in certain circumstances, the use

of force may be used in advance of an actual armed attack. ‘In advance of an armed attack’

should be interpreted against the background of the manner in which terrorist groups operate.

According to Arend & Beck, the idea of the use of force being used in ‘advance of an attack’

should not be taken to mean that any previous attacks are separate from a pending attack.183

It

should be understood that the right of self-defence is being exercised due to the cumulative

attacks as opposed to being viewed as a reprisal.184

Professor Coll in line with these views

argued that “the key components [of Daniel Webster’s definition] have to be interpreted rather

broadly, given the radically different world in which we live”.185

In his opinion, self-defence

is not permissible solely “in response to an imminent terrorist attack or as an on-the-spot

reaction to an unexpected threat”.186

Similarly, Judge Sofaer argued that the law should not

prevent military planners from taking the action that they deem necessary in order to prevent

attacks.187

According to his proposition:

“A sound construction of Article 51 would allow any state, once a terrorist ‘attack

occurs’ or is about to occur, to use force against those responsible for the attack in

order to prevent the attack or to deter further attacks unless reasonable grounds exist to

believe that no further attack will be undertaken”.188

180

Ibid. 181

See Letter dated 7 October 2001 to the President of the Security Council S/2001/946[online]. 182

Gazzini (n21) at 193. 183

Arend & Beck (n48) at 165. 184

Ibid. 185

Alberto R Coll, ‘The Legal and Moral Adequacy of Military Responses to Terrorism’ American Society of International Law Proceedings 297, 302, as quoted by Arend, & Beck (n48) at 165. 186

Ibid. 187

Abraham D Sofaer, ‘Terrorism, the law, and the National Defense’ (1989) Military Law Review 95, 98, as quoted by Arend, & Beck (n48) at 165. 188

Ibid at 165-166.

32

This position takes into account a country’s right to defend itself in the context of

international terrorism and gives the proper weight to the necessity of the use of force in self-

defence. The doctrine of cumulative events both recognises the modern meaning of necessity

and limits the use of force as required by the Charter in that it would require states to

demonstrate evidence of a pattern of attacks that lead to the reasonable conclusion that more

attacks can be expected. The ICJ should recognise that warfare no longer occurs on a

battlefield where the decision of states to defend themselves is based on seeing troops

mobilise. Terrorist groups possess a weapon which did not exist in previous centuries: The

internet. Daesh for example uses popular social networking sites like Facebook, Twitter and

YouTube to spread its message, gain support and also to recruit fighters. It is particularly

interested in individuals that live in the West that could be converted into ‘home grown

terrorists’. According to the New York post, fewer Americans are leaving to join Daesh

abroad, but many are staying in the United States to commit terrorist acts at home.189

FBI

Director James Comey revealed that his caseload of Isis suspects has increased to more than

900 and that Isis suspects are switching to mobile and gaming apps with encryptions that

frustrate the FBI’s attempts to monitor their communications.190

The above given suggestions both limit the arbitrary use of force by states and recognise the

need of states to defend themselves, thus providing a balance between normativity and

concreteness.

189

Paul Sperry, '900 ‘homegrown’ ISIS cases being investigated in US: FBI' (New York Post, 22 November 2015). 190

Ibid.

33

5. Conclusion In an age of weapons of mass destruction, the usefulness of the UN Charter cannot be

ignored. Its utility lies in the fact that it requires states to settle disputes as pacifically as

possible and that the use of force can only be used as a last resort. Even so, self-defence is a

fundamental right which cannot be denied to states who have to protect their citizens.

Article 51 of the Charter can be applied to international terrorism without having to adapt the

language. It is in fact the ICJ’s interpretation of an armed attack in Nicaragua that makes it

difficult to apply the Charter to international terrorism. A counter-restrictionist interpretation

of the Charter can allow for the incorporation of the use of force against terrorist

organisations.

Law has to be capable of being flexible and changing to suit the times in order to counteract

being too broad, too narrow or simply not envisioning a particular situation like the terrorist

threat. If the system of the Charter fails to recognise the inherent right of self-defence, states

may abandon the Charter altogether and return to the dangerous situation of the free-for-all

use of force that caused the Charter to be created in the first place.

“If the international legal framework which governs self-defence at any particular

time does not reflect the human defensive instinct, then a state is more likely to

disregard the framework’s substantive rules in times of peril and act according to its

natural instinct in order to avoid being attacked”.191

191

Alder (n170) at 18.

34

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