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

  • I.M. LOBO DE SOUZA

Abstract

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

Cet article explore et évalue les développements juridiques internationaux concernant le droit à la légitime défense contre l’agression du fait d’autrui, c’est-à-dire contre des attaques armées par des entités non-étatiques parrainées ou hébergées par un État étranger. Malgré les efforts déployés pour mettre au point un cadre normatif et des mécanismes de responsabilisation pour limiter l’utilisation, par les États, d’entités non-étatiques pour la réalisation d’interventions armées à l’étranger, certains États insistent sur de telles stratégies afin d’atteindre leurs objectifs en matière de politique étrangère. En revanche, la pratique internationale démontre une reconnaissance générale d’un droit de légitime défense contre des entités armées non-étatiques. Une doctrine émergente, soutenue par une pratique en évolution des États, appuie l’extension de l’application de ce droit à l’encontre de l’État qui parraine ou héberge une telle entité non-étatique, sous réserve de certaines conditions.

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References

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1 See, inter alia, Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, arts 2(4), 39, 42, 51 [UN Charter]; Stephen Schwebel, “Aggression, Intervention and Self-Defence” (1972-II) 136 Rec des Cours 473; Jose Ruda, Panorama del Derecho Internacional Publico Contemporaneo (Washington, DC: Comitê Jurídico Interamericano, 1984) 62; Oscar Schachter, “International Law in Theory and Practice” (1982) 178 Rec des Cours 133; Yearbook of the International Law Commission, 1951 (New York: United Nations, 1951) vol 2 at 133ff [ILC Yearbook 1951].

2 Definition of Aggression, GA Res 3314 (XXIX), UNGAOR, UN Doc A/RES/3314 (1974), art 2 [Resolution 3314].

3 See Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, United Nations, UN Doc S/2001/331 (2001) at para 3.

4 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res 2625(XXV), UNGAOR, UN Doc A/RES/25/2625 (1970) [Friendly Relations Declaration]. The declaration has been relied upon extensively by the International Court of Justice (ICJ) in its interpretation of the non-use of force principle. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136 at paras 87–88 [Israeli Wall]; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] ICJ Rep 403 at para 80 [Kosovo]; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, [1986] ICJ Rep 14 at paras 191–93 [Nicaragua]; Western Sahara, Advisory Opinion, [1975] ICJ Rep 12 at para 58. See also G Arangio-Ruiz, The UN Declaration on Friendly Relations and the System of the Sources of International Law (Alphen aan den Rijn, Netherlands: Sijthoff, 1979) at 101: “We would not doubt that paragraphs 8 and 9 are interpretative elaborations of paragraph 4 of article 2 of the Charter.”

5 For example, in 2008, Djibouti alleged a massive armed incursion by Eritrean troops, classifying it as an unlawful use of force. See Letter Dated 11 June 2008 from the Permanent Representative of Djibouti to the United Nations Addressed to the President of the Security Council, UN Doc S/2008/387 (2008); Official Records of the Security Council, 24 June 2008, UN Doc S/PV.5924 (2008) at 6.

6 See ILC Yearbook 1951, supra note 1, vol 2 at 135.

7 For a stricter definition of armed opposition groups, see Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609, art 1 [Additional Protocol II].

8 Yearbook of the International Law Commission, 1971 (New York: United Nations, 1971) vol 2 at 266 [emphasis added].

9 Discussing the travaux préparatoires of the Friendly Relations Declaration, supra note 4, in particular, the origins of its eighth and ninth paragraphs, Rosenstock has observed: “It was argued that to fail to mention such acts might give rise to the unwarranted conclusion that states could do indirectly what they were prohibited from doing directly.” See R Rosenstock, “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey” (1971) 65 AJIL 713 at 720.

10 Nicaragua, supra note 4 at paras 192, 205. It will be recalled that, in 1984, Nicaragua instituted proceedings against the United States, claiming that the latter, by engaging in military and paramilitary activities in and against Nicaragua, was internationally responsible for violations of conventional and customary international law. After rejecting the US objections on jurisdiction and admissibility of the claim (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, Judgment, [1984] ICJ Rep 392 [Nicaragua — Jurisdiction and Admissibility]), the ICJ held that the United States was in breach of its obligations under customary international law not to intervene in the affairs of another state, not to use force against another state, and not to violate the sovereignty of another state. In addition, the United States was also found to be in breach of some of its obligations under the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua, 21 January 1956, 367 UNTS 3. For discussion of the ICJ’s decision and its impact, see Herbert Briggs et al, “Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)” (1987) 81 AJIL 77.

11 Nicaragua, supra note 4 at paras 247, 292.

12 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, [2005] ICJ Rep 168 at para 345 [Armed Activities].

13 Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19 [Montevideo Convention].

14 Ibid, arts 8, 11.

15 Protocol to the Convention on Duties and Rights of States in the Event of Civil Strife, 1 May 1957, 338 UNTS 4138, arts 1, 5, online: Organization of American States (OAS) <http://www.oas.org/juridico/english/treaties/c-14.html>.

16 Resolution 3314, supra note 2, art 3(g).

17 Nicaragua, supra note 4 at para 195.

18 Rome Statute of the International Criminal Court, 1 July 2002, UN Doc A/CONF.183/9 (2002). See Review Conference of the Rome Statute of the International Criminal Court Official Records, ICC Doc RC/11 at Resolution RC/Res.6, Annex I. The text of the amendments is also reproduced in UN Doc C.N.651.2010.TREATIES-8 (Depositary Notification), online: <https://treaties.un.org/doc/Treaties/2010/06/20100611%2005-56%20PM/CN.651.2010.pdf>.

19 See Resolution 3314, supra note 2, preamble.

20 Institut de droit international (IDI), Session de Santiago, Present Problems of the Use of Armed Force in International Law, Resolution 10A (2007) at para 5, online: <http://www.justitiaetpace.org/idiE/resolutionsE/2007_san_02_en.pdf>.

21 Nicaragua, supra note 4 at para 191. This view was reaffirmed in Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, [2003] ICJ Rep 161 at para 51 [Oil Platforms].

22 Nicaragua, supra note 4 at para 195 (emphasis added).

23 See, eg, Brownlie, Ian, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963) at 361; C Stahn, “Terrorist Acts as ‘Armed Attack’: The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism” (2003) 27 Fletcher F World Aff 38 at 42–43; A Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense” (2011–12) 52 Virginia J Int’l L 483 at 492–93.

24 Nicaragua, supra note 4 at para 195.

25 L Sicilianos, “L’invocation de la légitime défense face aux activités d’entités non-étatiques” in A Kiss, ed, Annuaire de la Haye de droit international (The Hague: Martinus Nijhoff, 1989) 147 at 155–57.

26 Higgins, R, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 2004) at 250.

27 See Oil Platforms, supra note 21 at para 64: “Even taken cumulatively … these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a ‘most grave’ form of the use of force”; Armed Activities, supra note 12 at para 146: “The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC”; Dinstein, Y, War, Aggression and Self-Defence (Cambridge: Cambridge University Press, 2011) at 221: “A persuasive argument can be made that, should a distinctive pattern of behaviour emerge, a series of pin-prick assaults may be weighed in its totality and count as such an armed attack”; M Hakimi, “Defensive Force against Non-State Actors: The State of Play” (2015) 91 Int’l L Stud 17 (and works cited therein).

28 See Nicaragua, supra note 4 at paras 248–49.

29 Ibid at paras 195, 247.

30 Ibid at para 211. Judge Ruda emphatically endorsed this view, affirming that “juridically, the concept of ‘armed attack’ does not include assistance to rebels” (ibid at 174, para 13 (separate opinion of Judge Ruda)). See also P Zanardi, “Indirect Military Aggression” in A Cassese, ed, The Current Legal Regulation of the Use of Force (The Hague: Martinus Nijhoff, 1986) 112.

31 See Nicaragua, supra note 4, 528 at 543 (dissenting opinion of Judge Jennings).

32 Ibid, 259 at para 177 (dissenting opinion of Judge Schwebel).

33 Ibid at paras 162–65.

34 Ibid at para 171.

35 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, “Counter-Memorial of the United States of America (Jurisdiction and Admissibility)” (17 August 1984), [1984] ICJ Pleadings (vol 2) 3 at 59, para 195.

36 See, eg, Conflict Armament Research, Islamic State Weapons in Iraq and Syria: Analysis of Weapons and Ammunition Captured from Islamic State Forces in Iraq and Syria (London: Conflict Armament Research, 2014), online: <http://conflictarm.com/wp-content/uploads/2014/09/Dispatch_IS_Iraq_Syria_Weapons.pdf>. Detecting the manufacturer or origin of the weapon does not, however, determine the complete chain of custody or establish beyond a doubt the attribution of international responsibility.

37 See Armed Activities, supra note 12 at paras 29–30.

38 See Armed Activities on the Territory of the Congo, [2002] ICJ Pleadings, vol 1 at para 3.135 (Réplique de la République Démocratique du Congo, 29 May 2002).

39 See Armed Activities, supra note 12 at para 146.

40 See African Union Non-Aggression and Common Defence Pact, 1 January 2005, art 1(c)(viii), online: <http://www.au.int/en/sites/default/files/treaties/7788-file-african_union_non_aggression_and_common_defence_pact.pdf> (emphasis added).

41 See Israeli Wall, supra note 4 at para 139.

42 North Atlantic Treaty, 4 April 1949, 34 UNTS 244, Can TS 1949 No 7, art 5.

43 See E Buckley, “Invoking Article 5” (2006) NATO Review 1, online: <http://www.nato.int/docu/review/2006/issue2/english/art2.html>.

44 Israeli Wall, supra note 4.

45 Ibid at para 139.

46 Notice that Resolution 3314 defines aggression as “the use of armed force ... by a State against the sovereignty, territorial integrity or political independence of another State.” Resolution 3312, supra note 2, art 1.

47 See Armed Activities, supra note 12 at para 147.

48 See Israeli Wall, supra note 4, 240 at paras 5–7 (declaration of Judge Buergenthal), 207 at paras 33–34 (separate opinion of Judge Higgins), and 219 at paras 35–36 (separate opinion of Judge Kooijmans).

49 UNSC Resolution 1368, UN Doc S/RES/1368 (12 September, 2001) [Resolution 1368]; UNSC Resolution 1373, UN Doc S/RES/1373 (28 September, 2001) [Resolution 1373].

50 See Armed Activities, supra note 12, 306 at para 29 (separate opinion of Judge Kooijmans). This view should be taken as being in accordance with the ICJ’s interpretation (in Nicaragua, supra note 4) of what Resolution 3314, supra note 2, says about vicarious aggression.

51 See Armed Activities, supra note 12, 306 at para 30 (separate opinion of Judge Kooijmans).

52 Ibid, 301 at paras 11–12 (seperate opinion of Judge Simma).

53 See Christopher Greenwood, “International Law and the ‘War against Terrorism’” (2002) 78(2) Int’l Affairs 301 at 307.

54 See the following Letters from the respective permanent representatives addressed to the President of the UNSC: United States (UN Doc S/2001/946 (2001)), France (UN Doc S/2001/1103 (2001)), Canada (UN Doc S/2001/1005 (2001)), Germany (UN Doc S/2001/1127 (2001)), Netherlands (UN Doc S/2001/1171 (2001)), Australia (UN Doc S/2001/1104 (2001)), New Zealand (UN Doc S/2001/1193 (2001)), Poland (UN Doc S/2002/275 (2001)), Norway (UN Doc S/PV.4414 (2001) at 13), Egypt (UN Doc S/PV.4414, Resumption 1 (2001) at 22), and United Kingdom (UN Doc S/2001/947 (2001)). Ten other states (Albania, Bulgaria, Croatia, Estonia, Latvia, Lithuania, Macedonia, Romania, the Slovak Republic, and Slovenia) pledged assistance to the United States under Article 5 of the North Atlantic Treaty, supra note 42, even though at the time they were not parties to the treaty (see UN Doc A/56/466 (2001)).

55 See NATO Press Release M-NAC-2 (2001)159 and Statement by NATO Secretary General, 2 October 2001, online: NATO <http://www.nato.int/docu/speech/2001/s011002a.htm>.

56 Security Treaty between the United States, Australia, and New Zealand, 1 September 1951, [1952] ATS 2. See Letter dated 23 November 2001 from the permanent representative of Australia to the United Nations, UN Doc S/2001/1104 (2001).

57 See Statement of the General Affairs Council of the European Union, on Behalf of the European Union, on Action against the Taliban Following the Terrorist Attacks in the United States, UN Doc S/2001/967 (2001); Council Conclusions: Action by the European Union Following the Attacks in the United States of America, UN Doc S/2001/980 (2001).

58 See UN Doc A/56/637–S/2001/1091 (2001). The Rio Group comprises an informal regional arrangement of twenty-four Latin American and Caribbean states.

59 See Organization of American States (OAS), Terrorist Threat to the Americas, Resolution adopted at the First Plenary Session of the Twenty-Fourth Meeting of Consultation of Ministers of Foreign Affairs, OAS Doc OEA/Ser.F/II.24, RC.24/RES.1/01 (21 September 2001), online: <http://www.oas.org/OASpage/crisis/RC.24e.htm>; Inter-American Treaty of Reciprocal Assistance, 2 September 1947, 21 UNTS 324, online: OAS <http://www.oas.org/juridico/english/treaties/b-29.html>.

60 Authors like Abi-Saab, however, argue that these resolutions made only a general statement amounting to a “without prejudice clause” designed to reserve the future application of the right of self-defence should the requirements for its exercise be found to be present. See G Abi-Saab, “The Proper Role of International Law in Combating Terrorism” (2002) 1 Chinese J Int’l L 309.

61 UN Charter, supra note 1, art 24.

62 In UNSC Resolution 546, UN Doc S/RES/546 (1984) at paras 2–3, the UNSC condemned the “armed attacks” and “acts of aggression” committed by South Africa against Angola’s sovereignty and territorial integrity and placed demands upon South Africa and other states while reaffirming Angola’s right to self-defence in accordance with Article 51 of the UN Charter. In UNSC Resolution 573, UN Doc S/RES/573 (1985) at paras 1–2, the UNSC condemned Israel for “the act of armed aggression ... against Tunisian territory,” demanding that Israel abstain from such acts or “from threatening to do so.”

63 Resolution 3314, supra note 2, arts 2, 4, 6.

64 As Judge Simma rightly pointed out, the UNSC may, for political reasons, decline to classify a situation as a case of aggression, whereas the ICJ is guided by the law only (see Armed Activities, supra note 12, 334 at para 3 (separate opinion of Judge Simma). Roberts and Zaum argue that the UN Charter, notably in its Chapters VI and VII, provides a framework for selectivity (in the sense of discretion) by the UNSC that encompasses its right to make determinations and to exercise its powers under Chapter VII. See Adam Roberts and Dominik Zaum, Selective Security: War and the United Nations Security Council since 1945 (London: International Institute for Security Studies, 2008) at 11–15.

65 Hezbollah is here considered a non-state entity, an armed group, without prejudice to the legal nature of its ties to the government of Lebanon. According to the UN Commission of Inquiry on Lebanon, international humanitarian law would classify Hezbollah as “an armed group, a militia, whose conduct and operations enter into the field of application of article 4, paragraph 2(b), of the Third Geneva Convention of 12 August 1949.” See Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1, UN Doc A/HRC/3/2 (23 November 2006) at 23, para 57.

66 See Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc A/60/937–S/2006/515 (2006).

67 In the words of UNSC Resolution 1701, “hundreds of deaths and injuries on both sides, extensive damage to civilian infrastructure and hundreds of thousands of internally displaced persons.” See UNSC Resolution 1701, UN Doc S/RES/1701 (2006).

68 Those countries were: Peru (UN Doc S/PV.5489 (2006) at 14), Argentina (UN Doc S/PV.5489 (2006) at 9), Denmark (UN Doc S/PV.5489 (2006) at 15), Greece (UN Doc S/PV.5489 at 17), France (UN Doc S/PV.5489 (2006) at 17), United Kingdom (UN Doc S/PV.5489 (2006) at 12), United States (UN Doc S/PV.5493 (2006) at 17) and Slovakia (UN Doc S/PV.5493 (2006) at 18).

69 See UN Security Council, Provisional Verbatim Record of the 5492nd Meeting, UN Doc S/PV.5492 (2006) at 3: “I have already condemned Hizbollah’s attacks on Israel and acknowledged Israel’s right to defend itself under Article 51 of the United Nations Charter. I do so again today.”

70 See Letter from the Permanent Representative of the Russian Federation to the United Nations, UN Doc S/2006/556 (2006): “It is also critical that Israel, while exercising the right to defend itself, be mindful of the strategic and humanitarian consequences of its actions.”

71 See Saudi Arabia (UN Doc S/PV.5493 (2006), Resumption 1 at 20); Islamic Republic of Iran (UN Doc S/PV.5493 (2006), Resumption 1 at 30); Djibouti (UN Doc S/PV.5493 (2006), Resumption 1 at 32); Sudan (UN Doc S/PV.5493 (2006), Resumption 1 at 38); United Arab Emirates (UN Doc S/PV.5493 2006, Resumption 1 at 42).

72 See, eg, Democratic Republic of the Congo (UN Doc S/PV.5489 (2006) at 13), Tanzania (UN Doc S/PV.5489 (2006) at 13), China (UN Doc S/PV.5489 (2006) at 11), Ghana (UN Doc S/PV.5489 (2006) at 8), Japan (UN Doc S/PV.5489 (2006) at 11). Qatar, by contrast, showed a somewhat ambivalent position on the issue. Being an Arab country, it owed solidarity to Lebanon. On the other hand, Qatar — alongside other Gulf countries — opposed the role played by the Shiite organization Hezbollah and its sponsor state, Iran, in Lebanon. Therefore, while Qatar recognized “the right of all States, including Lebanon, to defend themselves”, it opposed vehemently Israel’s use of force against Lebanon, perhaps implying that it supported Israeli armed actions against Hezbollah (UN Doc S/PV.5489 (2006) at 10).

73 See The EU’s Mutual Assistance Clause: The First Ever Activation of Article 42(7) TEU, online: <http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2015)572799> [First Ever Activation].

74 Treaty on European Union, [2010] OJ C83/13, art 42(7) [TEU].

75 Treaty on the Functioning of the European Union, [2010] OJ C83/47, art 222 [TFEU]. See First Ever Activation, supra note 73.

76 See UN Doc S/PV.7565 (2015) at 2 (for political reasons, France decided not to invoke Article 5 of the North Atlantic Treaty, supra note 42).

77 Security Council, Provisional Verbatim Record of the 7565th Meeting, UN Doc S/PV.7565 (2015) at 4, 9.

78 UNSC Resolution 2249, UN Doc S/RES/2249 (20 November 2015) [Resolution 2249].

79 Ibid at para 1.

80 See, eg, UNSC Resolution 678, UN Doc S/RES/678 (29 November, 1990) [Resolution 678]; UNSC Resolution 1973, UN Doc S/RES/1973 (17 March 2011) at paras 4, 8 [Resolution 1973].

81 See Resolutions 1368 and 1373, supra note 49. Admittedly, Resolution 2249, supra note 78, does not use the strongest or most direct language to authorize the use of force. The resolution, for example, does not expressly state that the UNSC is “acting under Chapter VII of the Charter” nor does it use the word “authorize” in connection with the “all necessary means” clause. One can only speculate as to the reasons for the attenuated language, but it may be relevant to recognize that the resolution was dealing with several terrorist attacks in different parts of the world.

82 See General Assembly, Provisional Verbatim Record of the 95th Plenary Meeting, UN Doc A/53/PV.95 (1999) at 14.

83 See Letter from the Permanent Representative of the United States to the United Nations, UN Doc S/1998/780 (1998).

84 See International Law Association (ILA), Report of the Seventy-Sixth Conference (Washington: ILA, 2014) at 661; IDI, supra note 20 at para 10. E Wilmshurst, “The Chatham House Principles of International Law on the Use of Force in Self-Defence” (2006) 55 ICLQ 969: “Article 51 is not confined to self-defence in response to attacks by States. The right of self-defence may apply also to attacks by non-state actors”; S Murphy, “Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?” (2005) 99 AJIL 67: “[W]hatever the original meaning of Article 51 might have been, subsequent state practice appears to support the permissibility of responding in self-defense to an attack by a non-state actor.”

85 See Boczek, B, International Law: A Dictionary (Lanham, MD: Scarecrow Press, 2005) at 37. The maxim also applies to common spaces, according to The Marianna Flora; The Vice Consul of Portugal, Claimant (1826) 11 Wheaton’s Rep 1 at 42.

86 According to Oppenheim, “[t]he maxim sic utere tuo ut alienum non laedas is applicable to relations of states no less than to those of individuals ... [I]t is one of those general principles of law recognized by civilized states which the International Court is bound to apply by virtue of Article 38 of its Statute.” See Jennings, R and Watts, A, eds, Oppenheim’s International Law, 9th ed (Oxford: Oxford University Press, 2008) vol 1 at 408.

87 The fifth report of the ILC’s special rapporteur on the law of the non-navigational uses of international watercourses refers to this principle to justify the obligation of every watercourse state to utilize an international watercourse [system] in such a way as not to cause appreciable harm to other watercourse states. See UN Doc A/CN.4/421 & Corr.1-4 and Add.1 & 2 (1989) at 115, n 143.

88 See Westlake, J, International Law, part 1 (Cambridge: Cambridge University Press, 1910) at 313 (Westlake mentions the principle in his argument against the use of floating mines by a state in its territorial waters, as this could cause damage to “unoffending foreigners”).

89 See Tanaka, Y, The International Law of the Sea (Cambridge: Cambridge University Press, 2015) at 273–74.

90 L Viikari, The Environmental Element in Space Law: Assessing the Present and Charting the Future (The Hague: Martinus Nijhoff, 2008) at 150–53.

91 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at para 29: “The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States … is now part of the corpus of international law relating to the environment.”

92 Lauterpacht, H, The Function of Law in the International Community (Oxford: Oxford University Press, 2011) at 296.

93 See Island of Palmas (Netherlands, USA), (1928-II) RIAA 839.

94 See Corfu Channel, Merits, Judgment, [1949] ICJ Rep 4 at 22.

95 Resolution 3314, supra note 2, art 3(f). Article 3(g) also implies — though not exclusively — that the armed band that perpetrates an armed attack is sent from the territory of the state that is charged with an act of aggression.

96 See Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the International Law Commission — Memorandum submitted by the Secretary-General, UN Doc A/CN.4/1/Rev.1 (1949) at para 57.

97 See Avalon Project, British-American Diplomacy, The Caroline Case, online: <http://avalon.law.yale.edu/19th_century/br-1842d.asp>.

98 See Moore, JB, A Digest of International Law (Washington, DC: Government Printing Office, 1906) vol 2 at paras 217, 409–14.

99 See, inter alia, Thomas Buergenthal & Sean Murphy, Buergenthal and Murphy’s International Law in a Nutshell, 5th edition (St Paul, MN: West, 2007) at 400–01; Malcolm N Shaw, International Law, 7th edition (Cambridge: Cambridge University Press, 2014) at 820–21.

100 See, eg, Wilmshurst, supra note 84 at 965, 967, 970 (this position was specifically upheld by Sir Franklin Berman, Christopher Greenwood, Vaughan Lowe, Nicholas Wheeler, and Daniel Bethlehem). Ian Brownlie, on the other hand, considered reliance on this precedent to justify a customary legal right of anticipatory self-defence “indefensible.” See Crawford, James, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2012) at 751.

101 H Lauterpacht, “Revolutionary Activities by Private Persons against Foreign States” (1928) 22 AJIL 105 at 126–27.

102 See, eg, UNSC Resolution 1467, UN Doc S/RES/1467 (2003).

103 See, eg, UNSC Resolution 1189, UN Doc S/RES/1189 (1998).

104 See IDI, supra note 20 at para 10.

105 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43 at paras 391–92.

106 Cabinet Office, The National Security Strategy of the United Kingdom: Security in an Interdependent World (London: Stationery Office, 2008) at 14.

107 See Armed Activities, supra note 12 at para 277.

108 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (18 April 2005), CR 2005/7, 8 at para 92 (oral argument of Professor Ian Brownlie).

109 See Armed Activities, supra note 12 at paras 300–01.

110 Ibid, 306 at paras 81–84 (separate opinion of Judge Kooijmans).

111 Wilmshurst, supra note 84 at 970.

112 See IDI, supra note 20 at para 10.

113 See Convention for the Definition of Aggression, 3 July 1933, 147 LNTS 67 (1934) [London Convention]. Originally ratified by nine parties, including the Soviet Union, the provisions of the convention were reproduced in two other treaties ratified by the Soviet Union, Lithuania, Czechoslovakia, Rumania, Turkey, and Yugoslavia. See S Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 71.

114 London Convention, supra note 113, art 2(5) (emphasis added).

115 See Office of the United States Chief Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression (Washington, DC: United States Government Printing Office, 1946) vol 1 at 166. Solera credits the norms of the London Convention, supra note 113, designed fundamentally by the Soviets, with a long-lasting normative influence that persisted until the adoption of Resolution 3314, supra note 2. See Oscar Solera, Defining the Crime of Aggression (London: Cameron May, 2007) at 33.

116 See An Act Supplementary to an Act Entitled “An Act in Addition to the Act for the Punishment of Certain Crimes against the United States, and to Repeal the Acts Therein Mentioned,” 28 April, 1818 (Statute II, Chapter XXXI, 10 March 1838). United States Statutes at Large, Session 2, ch. 15,31, 1838, at 212–14.

117 Caroline case, supra note 97.

118 The agreement, concluded on 18 October 2011, is evidenced in a joint communiqué annexed to the Letter dated 17 October 2011 from the Permanent Representative of Kenya to the United Nations Addressed to the President of the Security Council, UN Doc S/2011/646 [Letter from Kenya to UN].

119 Joint Communiqué, supra note 118 at para 2.

120 Letter from Kenya to UN, supra note 118.

121 See Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment, [1988] ICJ Rep 69 at 105, para 94.

122 See Letter from the Permanent Representative of the United States of America to the United Nations, UN Doc S/1998/780 (1998).

123 See Letter from the Chargé d’affaires a.i. of the Permanent Mission of Turkey to the United Nations, UN Doc S/2015/563 (2015).

124 Ibid.

125 See Letter from the Permanent Representative of France to the President of the Security Council, UN Doc S/3954 (1958).

126 See Dire Tladi, “The Nonconsenting Innocent State: The Problem with Bethlehem’s Principle” (2013) 107 AJIL 576.

127 See Letter from the Permanent Representative of the Russian Federation to the United Nations, UN Doc S/2002/1012 (2002). It must be noted that Georgia’s response did not deny incursions by armed bands from its territory but alleged that they were “mostly citizens of the Russian Federation,” while arguing that article 51 of the UN Charter did not apply to the case since Georgia had not attacked Russia. See Letters from the Permanent Representative of Georgia to the United Nations, UN Docs A/57/408 and S/2002/1033 (2002).

128 See O Schachter, “The Quasi-Judicial Role of the Security Council and the General Assembly” (1964) 58 AJIL 961.

129 See Letter from the Permanent Representative of Chad to the United Nations, UN Docs S/2008/21 and S/2008/332 (2008); Letter from the Permanent Representative of the Sudan to the United Nations, UN Doc S/2008/325 (2008).

130 See UNSC Resolution 1834, UN Doc S/RES/1834 (2008).

131 Israel was one of the first states to develop this legal justification expressly, claiming that it possessed the right to defend itself against “incursions or armed bands and other acts of terrorism from the territory of another State.” This claim was, however, contested by many Arab states during the UNSC debates. See Repertoire of the Practice of the Security Council, Supplement 1975–1980 (New York: United Nations, 1987) at 402.

132 See Armed Activities, supra note 12 at para 23.

133 Treaty of the Southern African Development Community, 17 August 1992, online: Southern African Development Community (SADC) <http://www.sadc.int/files/5314/4559/5701/Consolidated_Text_of_the_SADC_Treaty_-_scanned_21_October_2015.pdf>. See UN Doc S/PV.3987 (1999) at 5, 9.

134 See, eg, Manuel García-Mora, International Responsibility for Hostile Acts of Private Persons against Foreign States (The Hague: Martinus Nijhoff, 1962) at 116–18.

135 South-West Africa — Voting Procedure, Advisory Opinion, [1955] ICJ Rep 67, 90 at 120 (separate opinion of Judge Lauterpacht).

136 Ian Brownlie, “‘International Law and the Use of Force by States’ Revisited” (2002) 1 Chinese J Int’l L 19.

137 See Franck, Thomas, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2005) at 67–68. The conclusion of the author was based upon a thorough review of state practice and the practice of the United Nations.

138 See Caroline case, supra note 97.

139 See UN Doc S/PV.3653 (15 April 1996) at 14–15.

140 This is indeed expressly referred to in several resolutions of the UNSC. See, eg, UNSC Resolution 425, UN Doc S/RES/425 (1978): “Decides … to establish a United Nations interim force for Southern Lebanon for the purpose of … assisting the Government of Lebanon in ensuring the return of its effective authority in the area” and UNSC Resolution 1701, UN Doc S/RES/1701 (2006): “Emphasizes the importance of the extension of the control of the Government of Lebanon over all Lebanese territory in accordance with the provisions of resolution 1559 (2004) and resolution 1680 (2006), and of the relevant provisions of the Taif Accords, for it to exercise its full sovereignty.”

141 According to Stone, international law recognizes that the victim state has “rights of self-help, extending to entry into the culprit’s territory (at least in hot pursuit) to abate the depredations, if the harboring state was not willing or able to do so.” See J Stone, “Hopes and Loopholes in the 1974 Definition of Aggression” (1977) 71 AJIL 237.

142 Derek Bowett, Self-Defence in International Law (New York: Lawbook Exchange, 2009) at 40.

143 See Letter from the Permanent Representative of Angola to the United Nations, UN Doc S/1997/802 (1997). Angola, in turn, rejected the Congo’s contention of having been the victim of an unlawful armed attack.

144 See Letter from the Permanent Representative of the Islamic Republic of Iran to the United Nations, UN Doc S/1996/602 (1996).

145 This is precisely the view expressed by the representative of Qatar in a UNSC session: “[T]he acts of self-defence must take place directly following armed aggression and before the cessation of military operations by the forces of the aggressor State.” See Security Council, Provisional Verbatim Record of the 2677th Meeting, UN Doc S/PV.2677 (1986) at 6.

146 J Verhoeven, “Les ‘étirements’ de la légitime défense” (2002) 48 AFDI 72. In the debates on the use of force by the United States against Libya in 1985, for example, the representative of Algeria stated the view that “that provision of the Charter (Art. 51) provides for the suspension of such a right while the Security Council is seized of the situation.” See Security Council, Provisional Verbatim Record of the 2676th Meeting, UN Doc S/PV.2676 (1986) at 5.

147 Repertoire of the Practice of the Security Council, Supplement 1981–1984 (New York: United Nations, 1992) at 326.

148 Thomas Franck, “Terrorism and the Right of Self-Defense” (2001) 95 AJIL 839 at 841–42.

149 Waldock’s endorsement of anticipatory self-defence also finds justification in the limitations of the Security Council: “[I]f the action of the United Nations is obstructed, delayed or inadequate and the armed attack becomes manifestly imminent, then it would be a travesty of the purpose of the Charter to compel a defending State to allow its assailant to deliver the first and perhaps fatal blow.” See Humphrey Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952-II) 106 Rec des Cours 498.

150 UNSC Resolution 502, UN Doc S/RES/502 (3 April 1982).

151 See In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc A/59/2005 (21 March 2005) at para 124: “Imminent threats are fully covered by Article 51.” A More Secure World: Our Shared Responsibility: Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, UN Doc A/59/565 (2 December 2004) at para 188: “[A] threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.” Wilmshurst, supra note 84 at 964: “[T]he view that States have a right to act in self-defence in order to avert the threat of an imminent attack … is widely, though not universally, accepted.”

152 See Letter from the Permanent Representative of the United States of America to the United Nations, UN Doc S/1998/780 (1998) [Letter from the US to the UN]. The bombing raid by the United States against Libyan targets in 1985 was also justified on the basis of alleged evidence that Libya “was planning multiple attacks in the future.” See Security Council, Provisional Verbatim Record of the 2674th Meeting, UN Doc S/PV.2674 (1986) at 17.

153 Letter from the US to the UN, supra note 152.

154 See Letter from the Permanent Representative of the United States of America to the United Nations, UN Doc S/2001/946 (2001).

155 See Letter from the Chargé d’affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations, UN Doc S/2001/947 (2001).

156 See Kaiyan Kaikobad et al, “United Kingdom Materials on International Law 2004” (2004) 75 BYIL 595 at 822–25.

157 Wilmshurst, supra note 84 at 971.

158 Kretzmer presents a useful discussion of this topic, favouring the application of the said distinction while recognizing the difficulties in separating the concepts. See D Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum” (2013) 24 EJIL 235 at 268–69, 274–75.

159 Deterrence works only when the threat of retaliation is credible in the eyes of the state or non-state entity to which the threat is addressed. See H Bull, The Anarchical Society: A Study of Order in World Politics (Columbia, OH: Columbia University Press, 2002) at 113–14.

160 The Friendly Relations Declaration, supra note 4, clearly considers armed reprisal a violation of the non-use of force principle: “States have a duty to refrain from acts of reprisal involving the use of force.” Schachter regards this principle, and Article 2(4) of the UN Charter, supra note 1, as prohibiting “military action that is punitive in aim rather than defensive.” See Oscar Schachter, “Self-Help in International Law: U.S. Action in the Iranian Hostage Crisis” (1984) 37 J Int’l Aff 245. See also Wilmshurst, supra note 84 at 969: “[T]he right of self-defence does not allow the use of force to punish an aggressor.”

161 See Oscar Schachter, “Self-Defense and the Rule of Law” (1989) 83 AJIL 259 at 273–77.

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