OUVRAGE : M. Ellen O'Connell, C.J. Tams, D. Tladi, Self-Defence against Non-State Actors

Mary Ellen O'CONNELL, Christian J. TAMS, Dire TLADI

In this book, self-defence against non-state actors is examined by three scholars whose geographical, professional, theoretical, and methodological backgrounds and outlooks differ greatly. Their trialogue is framed by an introduction and a conclusion by the series editors. The novel scholarly format accommodates the pluralism and value changes of the current era, a shifting world order and the rise in nationalism and populism. It brings to light the cultural, professional and political pluralism which characterises international legal scholarship and exploits this pluralism as a heuristic device. This multiperspectivism exposes how political factors and intellectual styles influence the scholarly approaches and legal answers and the trialogical structure encourages its participants to decentre their perspectives. By explicitly focussing on the authors' divergence and disagreement, a richer understanding of self-defence against non-state actors is achieved, and the legal challenges and possible ways ahead identified.


TABLE OF CONTENTS

INTRODUCTION TO THE SERIES: TRIALOGICAL INTERNATIONAL LAW

Anne Peters

I. The Pluralistic Structure and Self-Contradictory Substance of International Law
II. Multiperspectivism
III. The Timing of the Trialogues: Pressure on International Law’s Universality
IV. Problematising National Perspectives on Questions of the Law Contra Bellum and In Bello
V. Bottom-Up Universalisation
VI. Contributing to the Self-Reflexivity of International Legal Scholarship

INTRODUCTION: DILUTION OF SELF-DEFENCE AND ITS DISCONTENTS

Christian Marxsen and Anne Peters

I. The Controversy Around Self-Defence against Non-State Actors
II. Revival of the Debate since 2014
III. Three Perspectives in a Trialogue

1. THE USE OF FORCE IN SELF-DEFENCE AGAINST NON-STATE ACTORS,

DECLINE OF COLLECTIVE SECURITY AND THE RISE OF UNILATERALISM:

WHITHER INTERNATIONAL LAW?

Dire Tladi

I. Introduction

A. Importance and Controversy of the Law on the Use of Force
B. The Role of Policy Considerations
C. The Purpose of the Chapter

II. Prohibition on the Use of Force

A. A Brief Historical Context
B. The Content and Status of the Prohibition

III. International Peace and Security Architecture

A. The Charter as an Instrument for Collective Security
B. Institutional Framework for Peace and Security under the Charter

IV. The Law on Self-Defence

A. General Framework
B. The Permissibility of Unilateral Use of Force against Non-State Actors
C. The Proposition that Unilateral Force can be used Extraterritorially in Self-Defence against Non-State Actors
D. The Rules for Interpreting and Identifying the Scope of Self-Defence in Respect of Non-State Actors

V. Evaluation of the Scope of the Right of Self-Defence

A. The ‘Inherent Right’: Pre-Existing Rules of Customary International Law
B. Armed Attack does not mean Armed Attack by a State

VI. Unilateral or Collective Security: The Intersection of Law and Policy

A. Scope and Limits of the Law of Self-Defence against Non-State Actors
B. Do Current Circumstances Call for a New Approach?

VII. Summary and Conclusions

2. SELF-DEFENCE AGAINST NON-STATE ACTORS:

MAKING SENSE OF THE ‘ARMED ATTACK’ REQUIREMENT
Christian J. Tams

I. Introduction
II. Setting the Stage

A. A Problem of Force in International Relations
B. A Question of Self-Defence
C. A Question of Treaty Law

III. The ‘Armed Attack’ Requirement: Making Sense of the Treaty Text

A. ‘. . . the ordinary meaning to be given to the terms of the treaty . . .’
B. ‘ . . . in their context . . . ’
C. ‘. . . and in the light of its object and purpose’
D. The Preparatory Work of the Treaty and the Circumstances of its Conclusion
E. The Text of Article 51: Where Do We Stand?

IV. ‘Meaning Through Deeds’: Subsequent Practice in Application of the ‘Armed Attack’ Requirement

A. Subsequent Practice in Treaty Interpretation
B. The General Framework: An Inter-State Reading of Self-Defence
C. Particular Instances of Self-Defence (1946–Late 1980s): A Plea for Nuance
D. Post-Cold War Practice: Gradual, Palpable Change
E. Subsequent Practice: Where Do We Stand?

V. Assessment and Concluding Thoughts

A. The Case for Asymmetrical Self-Defence
B. Implications

3. SELF-DEFENCE, PERNICIOUS DOCTRINES, PEREMPTORY NORMS

Mary Ellen O’Connell

I. Introduction
II. Evidence of the Durable Meaning of Self-Defence

A. The Terms of the Charter
B. The Drafting History of the Charter
C. The Understanding in UN Organs

III. Three Pernicious Doctrines of Expansive Self-Defence

A. Inherent/Imminent
B. Terrorism/War
C. Unable/Unwilling

IV. The Prohibition on the Use of Force as Ius Cogens

A. The Methodology of Ius Cogens
B. History, Morality, Natural Law
C. The Implications of Ius Cogens Status for Self-Defence

V. Conclusion

CONCLUSION: SELF-DEFENCE AGAINST NON-STATE ACTORS – THE WAY AHEAD

Christian Marxsen and Anne Peters

I. Different Modes of Engaging with the International Law on Self-Defence
II. Handling the Sources of Self-Defence
III. Moral Values and Ius Cogens
IV. The Indeterminacy of the Law on Self-Defence
V. How Does the Law of Self-Defence Change?

A. Change of the Charter Law
B. Change of the Customary International Law on Self-Defence
C. The Law in Transition

VI. Conclusion

Index

Mary Ellen O'CONNELL, Christian J. TAMS, Dire TLADI, Self-Defence against Non-State Actors, Cambridge, Cambridge University Press, 2019 (310 pp.)

Authors

Mary Ellen O'Connell, University of Notre Dame, Indiana
Mary Ellen O'Connell is the Robert and Marion Short Professor of Law and is Research Professor of International Dispute Resolution – Kroc Institute for International Peace Studies, University of Notre Dame, Indiana. She was previously a vice president of the American Society of International Law and chaired the Use of Force Committee of the International Law Association. She has also practised law with the Washington, DC-based law firm, Covington & Burling.

Christian J. Tams, University of Glasgow
Christian J. Tams is Professor of International Law at the University of Glasgow, where he directs the Research Group on International Law, Conflict and Security. His academic work focuses on the use of force, investment law and international courts and tribunals. In addition to his academic work, Professor Tams regularly advises states and other actors in matters of international law, recently acting in proceedings before the International Court of Justice, the International Tribunal for the Law of the Sea, the Iran-US Claims Tribunal, as well as arbitral tribunals (ICSID, ICC).

Dire Tladi, University of Pretoria
Dire Tladi is a Professor of International Law at the University of Pretoria. He is a member of the UN International Law Commission and is Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens) and of the Institute de Droit International. He is former Deputy Legal Adviser of the South Africa Department of Foreign Affairs and previously legal adviser to the South African Mission to the United Nations in New York, including during its 2011–2012 tenure on the UN Security Council. He also served as Special Adviser to the South African Foreign Minister.

Contributors
Anne Peter, Christian Marxsen, Dire Tladi, Christian J. Tams, Mary Ellen O'Connell