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Introduction: The Future of Restrictivist Scholarship on the Use of Force

Published online by Cambridge University Press:  01 February 2016


No international lawyer bats more than the proverbial eyelid nowadays at states intervening militarily in states which host non-state armed groups. Neither drone strikes nor what used to be called ‘invasion’ quicken the pulse of the jus ad bellum lawyer; this is now a matter for humanitarians; the ‘how’ matters much more than the ‘whether’. We have become inured to relatively small-scale military interventions. Those who remember that 20 years ago international lawyers were more likely to find such actions illegal than justified should (but do not) collectively raise an eyebrow at this rapid change.

INTERNATIONAL LEGAL THEORY: The Future of Restrictivist Scholarship on the Use of Force
Copyright © Foundation of the Leiden Journal of International Law 2016 

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1 W. Shakespeare, Coriolanus, Act 1, Scene 1.

2 Definition of Aggression, G.A. 3314 (XXIX), UN Doc. A/RES/3314 (14 December 1974), Art. 3(a).

3 Garcia-Salmones, M., ‘Faith, Ritual and Rebellion in 21st Century (Positivist) International Law’, (2015) 26 EJIL 537, at 548CrossRefGoogle Scholar.

4 Kammerhofer, J., ‘The Resilience of the Restrictive Rules of Self-Defence’ in Weller, M. (ed.), The Oxford Handbook of the Use of Force in International Law (2015), 627, at 629Google Scholar.

5 Kammerhofer, supra note 4, at 632.

6 J. Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (2010), 41 (emphasis removed and added).

7 Raphaël van Steenberghe's writings are a welcome exception.

8 de Hoogh, A., ‘Restrictivist Reasoning on the Ratione Personae Dimension of Armed Attacks in the Post 9/11 World’, (2016) 29 LJIL 19, at 39CrossRefGoogle Scholar.

9 van Steenberghe, R., ‘The Law of Self-Defence and the New Argumentative Landscape on the Expansionists’ Side’, (2016) 29 LJIL 43, at 44CrossRefGoogle Scholar.

10 He is careful to point out that state practice should be seen in a wide sense – evidencing both behaviour and opinio juris – and that we are thus actually talking about customary international law.

11 Banks, W. and Criddle, E., ‘Customary Constraints on the Use of Force: Article 51 with an American Accent’, (2016) 29 LJIL 67, at 68CrossRefGoogle Scholar.

12 Ibid., at 87.

13 Ibid., at 73.

14 Ibid., at 93.

15 Martineau, A.-C., ‘Concerning Violence. A Post-Colonial Reading of the Debate on the Use of Force’, (2016) 29 LJIL 95CrossRefGoogle Scholar , at 101.

16 Ibid., at 109.

17 Shultz, G., ‘Low-Intensity Warfare: The Challenge of Ambiguity’, 1986 (March) 86 Department of State Bulletin 15, at 17Google Scholar.