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Institutionalizing State ResponsibilityGlobal Security and UN Organs$

Vincent-Joël Proulx

Print publication date: 2016

Print ISBN-13: 9780199680399

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780199680399.001.0001

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Crossing the Conceptual Rubicon

Crossing the Conceptual Rubicon

Understanding Secondary Norms of State Responsibility

Chapter:
(p.13) 1 Crossing the Conceptual Rubicon
Source:
Institutionalizing State Responsibility
Author(s):

Vincent-Joël Proulx

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199680399.003.0003

Abstract and Keywords

This chapter sheds light on the nature and interplay between secondary rules of responsibility under the aegis of the International Law Commission’s Articles on State Responsibility. After offering remarks on extant secondary norm structure, the chapter turns to current perspectives on the specific prospect of forcibly responding to non-State actors in light of the International Court of Justice’s seminal Nicaragua judgment, with particular emphasis on the mechanism of attribution. It attempts to reconcile the possible merger of State responsibility and use of force repertoire in global security contexts by pointing to areas of convergence between both regimes and to recent developments in State practice. In unfolding its arguments, the chapter addresses critically other related questions, such as the inbuilt phenomena of autoqualification and self-judging in the law of State responsibility and the potential promulgation of primary international legal rules by the International Law Commission.

Keywords:   State responsibility, primary and secondary norms, attribution, International Law Commission, ILC Articles, International Court of Justice, use of force, codification, international relations, anarchy, countermeasures

This chapter provides brief introductory observations on relevant fundamental legal questions in order to frame the prescriptive arguments to follow. It thus sheds light on the nature and interplay between secondary SR rules under the aegis of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), an essential exercise in circumscribing the main field of inquiry effectively. Indeed, Part II of the present book, which explores the potential institutionalization of SR through UN organs, draws heavily on the primary/secondary distinction under SR repertoire. Similarly, when exploring more controversial consequences flowing from States’ violations of counterterrorism obligations, Part III delves into this distinction as regards forcible reactions. Therefore, after offering preliminary remarks on extant secondary norm structure, the chapter turns to contemporary perspectives on the prospect of forcibly responding to non-State actors in the light of the International Court of Justice’s (ICJ’s) seminal Nicaragua judgment, with particular emphasis on the mechanism of attribution.

1.1 The Law of State Responsibility: Codification, Attribution, and Secondary Norms

The mechanics of SR, as enshrined in the ARSIWA, may be summarized in straightforward terms.1 Once a State violates a primary legal obligation, international law sets in motion the application of secondary rules of responsibility which comprise a series of potential legal consequences, including restitution or (p.14) compensation.2 This primary/secondary norm distinction has been described as ‘the central organizing device’ of the ARSIWA by the International Law Commission (ILC) Special Rapporteur who engineered their adoption.3 Given the principal case study of this monograph, the violation of one relevant primary duty materializes when a State fails to prevent terrorism emanating from its territory, thereby inflicting harm onto the citizens or violating the rights of another State. As seen in Part III, equally important to this book is the query regarding whether forcible responses to terrorism, be they incremental, more ambitious in scope, or tantamount to self-defence, may be encompassed within the scope of secondary norms, either via the institution of a lex specialis or as a matter of course.

All simple expositions end there. Described as the ‘most ambitious and most difficult topic of the codification work’ of the ILC,4 the ARSIWA are the product of some forty years of work at the ILC and reflect the succession of intellectually divergent and sometimes ideologically driven Special Rapporteurs. Furthermore, this codification project progressively evolved towards creating a political safe space in which the contents of primary obligations (ie substantive international law)—particularly but not exclusively in the field of injuries to aliens—would be eschewed in favour of further developing the rules governing the breaches of those primary norms, and the ensuing consequences.5 Consequently, several conceptual and practical challenges have cropped up, not least brought on by the once controversial dichotomy between primary and secondary obligations.6 As René Provost argued, aside from supporting the well-established requirement that ‘a breach [of international law] necessarily be sanctioned’, the law of SR ‘appears unsettled and has generated considerable theoretical debates and practical difficulties’.7 Whilst the purpose of this chapter is not to address all the theoretical (p.15) and practical implications of the primary/secondary divide exhaustively, a critical appraisal of the impact of secondary norms on the topic under study is nonetheless useful.

In fact, the challenges to developing effective accountability models in the face of global security threats might be compounded by what some perceive as two features of modern SR, namely the changing of partners and the distinction between primary and secondary obligations. Whilst the second feature is widely accepted and has been consecrated by the ILC in the ARSIWA, the first feature has less purchase in international legal circles. But if accepted as part and parcel of SR, both concepts are interdependent. As soon as a primary obligation is breached, a series of secondary obligations is set in motion and a new legal relationship is formed. It follows that, ‘in the expanding field of special legal regimes of international law, the parties to the primary are not necessarily the same as those to the secondary rules. In such cases, there is a change of partners and the legal consequences of that change need to be further elucidated.’8 This transition might, therefore, engender a substitution of major actors and/or partners at the primary level, which, whilst involved or directly affected by the events leading to a breach, are shuffled around through the screen of secondary norms. In many ways, this logic underpins the prescriptive arguments advanced in Part II of this book: in some circumstances, once a State violates a global security obligation—by failing to prevent transnational terrorism, for example—the United Nations Security Council (UNSC) can substitute itself for the injured State(s) and implement SR.

This reality is also true of certain types of treaty-based law, such as World Trade Organization (WTO) obligations.9 Whilst some primary norms are never inherently indivisible, the legal consequences of an internationally wrongful act usually apply between the responsible State and the injured State regarding the particular violated obligation. However, the contracting parties may conventionally set aside these fundamental mechanics and redesignate which injured State(s) can seek out the benefits of the newly formed, secondary relationship under the auspices of SR law. As the ILC underscored,

[s]‌tates when creating ‘primary’ rights and obligations between them may well, at the same time, determine which State or States are to be considered the ‘injured’ State or States in case of a breach of an obligation imposed by that ‘primary’ rule, and thereby determine which State or States are entitled to invoke new legal relationships and even which new legal relationships are entailed by such a breach.10

It remains unclear, however, how well this doctrine could carry over to the delicate sphere of counterterrorism obligations, for example. Consider a multilateral (p.16) treaty referencing the obligation to prevent terrorism that simultaneously institutes a parallel regime of ‘injured’ States and operates on the assumptions and distinctions that characterize the doctrine of the changing of partners. One could also envisage a bilateral treaty on counterterrorism setting out certain conditions or standards to trigger the application of SR, but these modalities could simply be equated with treaty stipulations, with the beneficiaries of those provisions ultimately remaining the original contracting parties.

However, should the obligation to prevent terrorism be framed within the scope of either jus cogens duties or obligations erga omnes, the argument becomes somewhat palatable. If the obligation to prevent terrorism is construed as stemming from some (universal) source other than treaty law (eg general international law), specifically, a case can be made that a responsible State, or an injured State for that matter, may not have initially contracted the original rule it is (or they are) seeking to apply (which may have originated in treaty law). In other words, the primary obligation of prevention may have emerged in a broader setting—for example, as a generally accepted norm amongst the international community—without either State having specifically signed up for it. Thus, it can perhaps be said that when the time comes to trigger SR mechanics, the partners at the secondary level of the breach (eg the State that failed to prevent terrorism and the injured State) were not the original partners at the time of the formulation of the relevant primary norm. In fact, it would seem that they were never partners for the purposes of this obligation. It is precisely because of the application of this primary norm that they have now become partners through the application of SR—by way of forced adherence to the violated rule and/or legal osmosis—which empowers one State to reap the benefits of the breached obligation whilst it concomitantly behoves the other State to fulfil its contents. Neither State, however, might have expressly signed up to the norm in question or applied it consistently in the conduct of its own affairs.

Yet, by the very operation of customary international law, coupled with the fact that the State in question did not formally object to the norm, it is bound by the rule. Therefore, the idea of the changing of partners becomes intractable when it is applied to obligations erga omnes. However, it may well be resuscitated in the context of the institutionalization of SR: in particular, a changing of partners might indeed occur if and when the SC subrogates itself for the injured State(s), for instance by determining a wrongdoing State’s responsibility and imposing consequences upon it. In such a scenario, the second partner in the equation switches from the injured State(s) to a multilateral institution composed of several States (ie one of the UN’s political organs). Thus, there is clearly a transformation in the legal relationship, which now exists between the responsible State and the international organization.

For example, if Iran, which has clearly not subscribed to or upheld the obligation to prevent terrorism by sponsoring Hezbollah factions in the past,11 became (p.17) the target of the enforcement of that rule through the regime of SR, could that State then be equated with one of the partners involved in the formulation of the primary rule it violated? Alternatively, what if Iran was the target of a terrorist strike emanating from another State and sought to enforce the primary obligation pursuant to SR repertoire: could it then be perceived as having participated in whatever process was prevalent at the primary level of the breach, since it has repeatedly flouted the relevant obligation? First and foremost, this difficult notion of ‘changing of partners’ appears contingent on the origin and elaboration process of the specific norm in question. Second, a late-game or selective acceptance of the rule by a State may entail that it now assumes a new partnership during the process of applying SR law; a relationship, it should be stressed, that did not exist at the primary level of the breach. However, what still requires clarification in the latter scenario can be summarized as follows: can Iran be ‘grandfathered in’ as a partner at the primary level of the breach/formulation of the applicable rule by virtue of the sole fact that it adhered to the violated norm at a later stage? Finally, a contrary argument suggests that by accepting to be bound by the relevant norm, even though it was not involved in its initial elaboration, any State therefore associates itself with all other like-minded States; thus, they all become potential partners at the secondary level of a breach of the relevant norm (eg at the stage of applying SR principles) by virtue of their acceptance of the rule (eg partnership at the primary level).

The confusion surrounding the changing of partners, perhaps exacerbated by the pressing need to situate the individual within the international system more effectively, operates on the ARSIWA’s logic and poses increasingly difficult challenges to holding States responsible for the acts of non-State actors, as acknowledged in other books12 and more exhaustive studies.13 This is relevant given that many determinations of States’ responsibility for failing to prevent global security breaches, particularly transnational terrorism, will involve examining the conduct of non-State actors. For comparative purposes, let us recall that one publicist invokes the ‘gradual transformation that occurs in the relationship between the ship, the flag State and the port-State control’, underscoring the point that if ‘a ship does not meet the internationally agreed standards, irrespective of her place of registration, her flag State or the citizenship of the owner, she is retained by the authorities of the port-State and is liable for the violation of these standards’.14 This clearly reinforces the need to delineate the legal impact of non-State actors on SR mechanics further, whilst this specific example remains ‘one more efficient expression of the genuine link, which is henceforth required, not only between the (p.18) ship and her flag State, but also between the ship and international law’.15 Offering one potential avenue to elude the problems associated with the changing of partners, which has generated considerable anguish in some scholarly circles, Part II of this book argues that the SC can sometimes step in and implement SR in global security contexts.

1.2 The ILC’s ARSIWA and the Primary/Secondary Divide

Similarly to conceptual and practical impediments in circumscribing relevant primary obligations more effectively, the secondary norms of responsibility are not always clearly delineated. Quite the contrary: significant challenges impair a straightforward (or uniform) interpretation and application of SR rules in many cases. This reality is further compounded when an already too elusive corpus of rules, namely those found in SR repertoire, are extended to politically volatile areas, such as counterterrorism and other global security areas, let alone their consequences implemented through the vehicle of UN organs. This difficulty is most likely to be attributable to the dual reality that ‘the international legal system lacks a structured framework’ in which to hold States accountable for failing to prevent terrorism,16 and the law governing the international responsibility of States, coupled with its repertoire of countermeasures, is quintessentially emblematic of the ways in which international law seeks to adapt to the anarchic structure and nature of the global order.17

The ensuing argument, therefore, will sometimes align with Robert Keohane’s view of this anarchic nature of international relations which will ultimately shape the success of accountability mechanisms—be they inter-State, unilateral, or institutional—through two staples of modern SR repertoire: sovereignty and self-help. This carries with it considerable implications for the notions of cooperation and interdependence that bind actors on the international plane, particularly (p.19) States, not only as directly between them, but also through UN organs. As Keohane underscores, ‘[t]‌he anarchic structure of world politics does mean, however, that the achievement of cooperation can depend neither on deference to hierarchical authority nor on centralized enforcement. On the contrary, if cooperation is to emerge, whatever produces it must be consistent with the principles of sovereignty and self-help.’18 Reflections on SR’s (sometimes spectacularly flawed) attempts both to instil a sense of legitimacy in international relations and to implement a structured framework of accountability—in a highly decentralized global order—will lie at the very core of the discussion to follow.

Two conclusions serve as vital building blocks for the further development of potential responsibility models in this volume. First, heeding scholarly and policy calls to engage the SC fully in upholding a global rule of law,19 the prospect of adapting a generic set of SR norms to this setting will entail a cautious analysis of a distinct yet vital eventuality: that is to say, the possible institutionalization of the implementation of SR. This line of inquiry not only ensures a sense of symmetry in exhausting possible avenues aimed at either (i) bolstering the implementation of SR, or (ii) ‘centralizing’ its enforcement monopolies within a specific international body in apposite circumstances, such as the SC, but it also might well shed new light on the elaboration of secondary norms. These questions are thoroughly explored in Part II of this book.

Secondly, this project operates on the now obvious premise that additional generalized guidelines and/or standardized rules and principles could be developed and applied to every breach of international law,20 especially in the field of counterterrorism. Therefore, the re-examination of pertinent secondary rules might assist the international community in redressing this conceptual dearth and lack of specificity in the ARSIWA. Indeed, whilst the concept of State accountability was firmly grounded in international legal consciousness during the ICJ’s deliberations in the Corfu Channel decision, Judge Alvarez noted in his Separate Opinion that SR law was ‘not regulated by any well-established precepts’,21 and thus lacked the horizontal enforcement mechanisms typically found in domestic constitutional and legal orders. However, to maintain this line of argument so many years after the ICJ’s ruling and, more precisely, after the adoption of the ARSIWA seems rather tenuous. Whilst it is still true that the international legal system does not comprise a central enforcement mechanism, SR norms have (p.20) evolved considerably under general international law and have been in large part codified in the ARSIWA. However, what is certain is that the formulation of general principles at a high level of abstraction, such as those resulting from the ILC’s codification exercise in the ARSIWA, might lead to idiosyncratic reasoning and inconsistencies in their application, engender ‘doctrinal sclerosis’, and ultimately dissuade ‘creative or critical analysis by imposing a set of basic assumptions’.22

1.2.1 The mechanics of the ARSIWA

It should be stressed that both primary and secondary norms are sometimes intertwined, interdependent, or inseparable.23 Even decades before the adoption of the ARSIWA, it was clear that SR law called for broad reflection on internationally wrongful conduct which inexorably led interlocutors to ponder the modalities of obligations within the confines of that normative scheme.24 Similarly, learned scholars expounded that in order to apply secondary rules to a given breach, SR mechanics would invariably entail some kind of analysis of the violated primary rule so as to work out the specifics of attribution and related questions.25 This reality explains the brief overview of the problem of the various shades of State support of terrorism that features in Section 2.2 in the next chapter of this book. In short, devising legal consequences following a State’s failure to prevent terrorism invariably entails a context-sensitive, factually driven analysis of the impugned violations, which is achieved by reference to the content of primary counterterrorism obligations (which, in turn, may be expressed as duties to refrain from financing, organizing, or assisting terrorism, obligations to prevent, duties not to harbour or support, obligations to punish or extradite certain individuals, etc).

The very purpose behind the adoption of the ARSIWA was to promulgate key general precepts, applicable to all breaches. Nevertheless, certain scholars level charges against the ARSIWA to the effect that they adapt poorly to all situations, or fail to envisage specific scenarios.26 Others opine that they provide a sufficient (p.21) conceptual and legal backdrop, but that some adjustments or evolving interpretations should be taken into account during the further development of the principles enshrined therein.27 This monograph strives to follow this second line of thinking without, as Dame Rosalyn Higgins cautioned, falling prey to the exercise of transforming the ARSIWA into a veritable ‘rag-bag’ of topics or expending inordinate effort in defining substantive international obligations which fall outside of the core makeup of SR rules.28

Nevertheless, a sometimes nebulous interface between the firmly implanted principle of State accountability and the application of general SR norms, pursuant to the ARSIWA, emerges and poses considerable challenges to the prospect of holding States responsible for failing to prevent terrorism or other global security breaches. As one commentator highlights, ‘[b]‌ecause of this haphazard organization, it remains uncertain whether the international community or an individual State can legally hold another sovereign State accountable for sponsoring or supporting terrorist activity. Despite the fact that the system governing terrorism law is disorganized, a significant legal basis nonetheless exists to hold States accountable for terrorist activity.’29 Moreover, whilst the primary norm elaborated by the ICJ in Corfu Channel might appear general or imprecise (eg States must abstain from allowing their territory to be used as a launch pad for harmful activity), Finnemore and Toope nevertheless infer that such a rule—which they cast as falling under the rubric of SR—has generated strong records of compliance and influence.30

Whilst the standardized set of secondary rules enshrined in the ARSIWA may be set aside by any lex specialis or conventional scheme,31 one of the principal policy thrusts of this monograph is to steer the reader away from the notion that the ‘alternative approach, advanced against the primary/secondary distinction, but no longer maintained by scholars, is that that distinction is artificial and unnecessary, that there is in all cases a single obligation imposed by international law, which carries within itself the definition of the consequences of its breach’ (emphasis added).32 In a narrower sense, reliance on this dichotomy throughout this volume will illustrate that the application of secondary norms flows much more organically from an initial breach of international law than potential detractors would generally concede.

This line of reasoning becomes particularly compelling when coupled with the fact that primary norms—as a result of the ILC’s codification on SR—have (p.22) arguably seeped into the ARSIWA, most notably in Article 50.33 In fact, before becoming ILC Special Rapporteur, James Crawford prophetically proclaimed that the ‘first principle’ underpinning the creation of an appropriate regime for dispute settlement in the realm of secondary obligations resided in circumscribing the scope of reprisals, an exercise simultaneously boiling over to the formulation of primary rules.34 Additionally, though not without controversy, similar logic could arguably extend to the treatment—and partial alteration—of the rules governing breaches of obligations arising under peremptory norms of international law pursuant to the ARSIWA (which could govern certain global security violations). For instance, hinting at a contentious point of evolution, the jurisprudence of the Inter-American Court of Human Rights underscored that the hierarchy involving jus cogens obligations now extends far beyond treaty law. More relevantly, such development occurred in concert with SR law, with that court highlighting that ‘ius cogens is not limited to treaty law. The sphere of ius cogens has expanded to encompass general international law, including all legal acts. Ius cogens has also emerged in the law of the international responsibility of states and, finally, has had an influence on the basic principles of the international legal order.’35

Furthermore, the ARSIWA tack on potentially severe consequences to the violation of such obligations, including the duties of cooperation and assistance between States in order to bring the internationally wrongful act to an end.36 Whilst this legal development may perhaps not be cast squarely within the sphere of primary international legal norms, it nonetheless significantly affects the application and rationale of those obligations. Ultimately, the scope of the (p.23) ARSIWA may be more effectively assessed by examining the extent of legal consequences it juxtaposes with breaches of international law—which undoubtedly has varying effects on States’ observance of primary norms—as opposed to investigating whether codified SR norms create new (or alter existing) primary international legal obligations. In short, the normative operation at the secondary level of international breaches is not one of primary norm alteration but one of modulation. Put another way, it is submitted that the debate would prove more fruitful by exploring the ways in which secondary norms of responsibility inform and, ultimately, shape the observance of international law. As mentioned, in the field of jus cogens obligations the ARSIWA set out particularly severe legal consequences for internationally wrongful acts, which include duties of cooperation and assistance between States to counteract the breach, which may or may not involve the mechanisms of universal jurisdiction. As a corollary, the idea that jus cogens obligations may invalidate not only treaty-based undertakings but also SC resolutions and all other legal acts also flows from the ARSIWA.37 Transposing this rationale to this book, the prospect of incurring international responsibility along with (perhaps severe) legal consequences might, in fact, create incentives for governments to comply with global security obligations rather better than they have done.38

However, it is imperative to underscore an alternate viewpoint on the primary/secondary divide permeating SR repertoire. As discussed later, particularly in Part III, the distinction between primary and secondary norms can sometimes hinge on arbitrary considerations, thereby militating in favour of an analytical approach that does not unnecessarily frame potential elucidations of SR in terms of ‘primary versus secondary’. A case in point undoubtedly resides in the conceptually loaded notion of ‘attribution’, which serves as one of the foremost mechanical linchpins of SR at the trans-substantive level.39 Simply put, attribution constitutes the normative operation that seeks to link the unlawful actions of non-State actors or official State agents to the governing apparatus for the purposes of establishing international responsibility under the ARSIWA, be it through the principles of formal/de facto agency or official State endorsement of an internationally (p.24) wrongful act.40 However, attribution also fulfils a vital role at the primary level and shapes the application of various international obligations in areas as diverse as SR, treaties, the establishment of customary law, diplomatic representation, and, most importantly, self-defence.41

As a matter of course, it is therefore not controversial to contemplate the notion of attribution through the prism of primary international legal obligations. In fact, such eventuality has been expressly enshrined in both the WTO Treaty42 and the Energy Charter Treaty.43 Thus, under the corresponding legal schemes the primary obligations encompass the acts of sub-federal States and other entities divorced from centralized State governments, thereby disabling the need to revert to default SR rules when allocating blame given the treatment of attribution at the primary level.44 As explored in Part III, the principle of attribution also finds its foundation in the law governing recourse to force, at least in two ways: (i) on a definitional basis, in order to circumscribe the meaning of proscribed forcible acts under Article 2(4) of the UN Charter or, alternatively, of the notion of ‘armed attack’ under Article 51 of the same instrument;45 and (ii) through the application of the concepts of necessity and proportionality insofar as a claim that necessity/proportionality underpin the exercise of self-defence is only tenable in the event that the initial internationally wrongful act can be attributed to the State being (p.25) targeted.46 Granted, it should be stressed that attribution, on the one hand, and proportionality/necessity, on the other, arise at different stages of the legal inquiry. However, within the confines of SC practice, for instance, which will prove central in the analysis pursued in Parts II and III of this book, States routinely elect to debate the virtues of the lawfulness of self-defence in terms of proportionality and necessity.47

Yet, whilst the concept of attribution may find various applications in primary normative terrain, this does not simultaneously signal a consistent or uniform construction of that principle across the board.48 One salient illustration emerges in the institutional practice analysed in Section 4.5.2 of this book, as the SC’s application of attribution principles has been anything but straightforward in determining issues of international legal responsibility. Moreover, the semantic content of ‘attribution’ is subject to various permutations within the discipline and is brandished rather loosely under international law. At times, attribution is equated with some measure of ‘factual causality’ whilst, within the realm of SR, it becomes interchangeable with a ‘strictly normative operation’ under the law, ie inheriting an almost mechanical, as opposed to substantive, fate under some lights.49 Consequently, particular scrutiny should be exercised when attempting to transpose uncritically the notion of ‘attribution’ from one legal category to another. When casting attribution as a primary norm, some scholars advocate in a radical direction and, quite compellingly, argue that some rules featured in the ARSIWA may not be divorced from the primary corpus of international norms. Such is the contention of Ulf Linderfalk who, basing his theory on an appreciation of international legal language, resists vehemently the overarching separation of primary and secondary rules under SR. Rather, he argues that the norms codified in the ARSIWA belong to the realm of international ‘regulative rules’ and form part of a primary set of international obligations. Moreover, he subsumes the bases for attributing internationally wrongful acts to States, enshrined in ARSIWA Articles 4-11, within this analysis. He further expounds that these provisions ‘lay down conditions for the application of the great majority of primary rules existing in international law: they provide elements of primary regulative rules, rather than secondary ones’.50

(p.26) Linderfalk’s vision is persuasive and may be one of the rationales that has driven the SC’s substantive forays into SR repertoire, particularly as regards the 9/11 attacks and other global security incidents discussed in Chapter 4. Indeed, the norms reflected in those ARSIWA prescriptions undoubtedly amount to what could be construed as ‘fill-in-the-wrongful-act’ guideline provisions. These, in turn, are filled with specific primary content commissioned by the circumstances leading to a State’s violation of international law, essentially by failing to prevent specifically proscribed conduct under the relevant primary norm (eg failures to prevent terrorism, human rights abuses, extrajudicial killings, etc). In summary, those prescriptions faithfully follow the template of laying down a rule connecting a wrongful act to a State whilst simultaneously incorporating reference to some foreign, undefined unlawful ‘conduct’, along with additional criteria that qualify the violation and provide guidance in applying the mechanics regulating the legal breach. At this stage, the ARSIWA are in no way dealing with restitution or reparative arrangements following the establishment of responsibility; the normative operation that ensues is that of actually ascertaining wrongful conduct on part of the State—an exercise carried out with a large degree of reference to the applicable primary norms—as opposed to devising the legal consequences of the violation, a determination belonging solely to the realm of secondary obligations. Otherwise put, if those observations could boil down to simple formulae, they could be expressed along the following lines:

  1. i) the conduct [insert internationally wrongful act here] + carried out by any State organ (ie legislative, judicial, or executive) [qualifier providing authorship criteria for establishing the breach] = attributable to the State [responsibility ensues] (ARSIWA Article 4(1));

  2. ii) the conduct [insert internationally wrongful act here] + carried out by an individual or group of persons [general authorship qualifier indicating the private nature of the actors] + acting on the instructions of the State [first disjunctive qualifier providing criteria for establishing the breach] + acting under the direction of the State [second disjunctive qualifier providing criteria for establishing the breach] + under the control of the State [third disjunctive qualifier providing criteria for establishing the breach] = attributable to the State [responsibility ensues] (ARSIWA Article 8);

  3. iii) the conduct [insert internationally wrongful act here] + that is not attributable to the State [qualifier providing criteria for establishing the breach] + that is acknowledged or adopted by the State [qualifier providing substantive guidance as to the mechanics of establishing responsibility] = converts the hitherto non-attributable act into an act of State [responsibility attaches on an alternative basis to ‘traditional’ attribution] (ARSIWA Article 11); and so on.

(p.27) Whilst contending that these norms entirely straddle primary terrain, as opposed to being trans-substantive in nature, may not persuade the staunchest detractors, a careful review of the normative makeup of the pertinent rules, as expressed in the formulae above, reveals an interpretive flexibility governing the notion of attribution under the ARSIWA. Nor is it far-fetched to contend that this normative framework strays conceptually from what has traditionally been construed as the exclusive dominion of SR repertoire, namely the application of secondary rules of liability (ie legal consequences of a breach and reparation). In many ways, this liberal construction of attribution principles is reflected in the SC’s sometimes nebulous applications of attribution explored in Chapter 4. Conversely, it is fair to balance out this line of reasoning by acknowledging that in codifying these provisions, the ILC was not ‘legislating’, for lack of a better term, nor was it instituting entirely new primary rules. However, by devising a set of norms heavily referencing undefined primary obligations on a ‘fill-as-you-go’ basis—whilst sharply emphasizing the mechanics of ascertaining international law violations at the primary level—the Commission implemented a regime that will significantly regulate and modulate the application of the primary norms it seeks to enforce. Whilst ARSIWA Articles 4–11 may not categorically attract a ‘primary obligation’ designation, they do suggest that the perhaps arbitrary conceptual Rubicon dividing both types of obligations can be traversed on occasion, and that both normative categories are, in many respects, interdependent. Furthermore, this scheme warrants a twofold observation. First, the interchangeable dynamic between some norms suggests a flexible margin in reconceptualizing legal rules pertaining to global security; and, secondly, it concomitantly signals that the primary/secondary distinction is by no means an infertile ground for the further elaboration of policy-oriented reforms.

1.2.2 The problems of autoqualification and self-judging

This line of inquiry inevitably diverts the analysis back to a fundamental phenomenon shaping the application of SR principles, namely that of autoqualification by States. In short, it empowers injured States—with varying degrees of input from wrongdoing States—to qualify unilaterally the various aspects of a dispute which entails both self-interpreting and self-judging the initial breach and its legal consequences. The decentralized nature of SR law is characterized by the absence of any mandatory adjudicatory process in its implementation; thus, injured States are left with the option to delve unilaterally into the resulting scheme of countermeasures when enforcing international law, against the backdrop of an anarchic international society. Consequently, injured States will have a large margin of discretion not only in determining if a breach of international law has been perpetrated, but also as to what constitutes ‘terrorism’ and the failure to prevent it (or the contours of other similar global security breaches), along with the applicable legal consequences flowing from the violation. This central question of (p.28) autoqualification steers the analysis towards ‘Kelsen’s proposition that only state parties to a controversy could autoqualify it’.51

Given the arguments that will be advanced in Part III of this book, the next logical, perhaps ineluctable, conclusion is that disputing States will retain the ability to ascertain whether there has been an ‘armed attack’ before invoking the right to self-defence in global security contexts, a proposition that enjoys scholarly support.52 Speaking to the question of indeterminacy and international law’s ‘modulated response’ to that challenge in the ‘context of application and the nature of norms in human rights and humanitarian law’, René Provost astutely underscored that there will be a ‘“dialogue” on international norms between these two or more actors holding possibly divergent views on the nature of the situation’.53 Here, Provost writes about this ‘dialogue’ as pertaining to an internal armed conflict, whereby insurgents are afforded a ‘measure of functional sovereignty’ in order to make a ‘valid legal characterization of the conflict’, which, in turn, might run against competing qualifications of the conflict formulated by other involved actors.54

In a seminal article, Thomas Franck rightly cautioned that various manifestations of autoqualification might bring about undesirable, idiosyncratic, and ultimately destabilizing effects when assigning legal blame:

[i]‌n the absence of some universally credible fact-determination procedures, the effort to establish whether a use of force is illegal under Article 2(4) or legal under Article 51 is stymied by contradictory allegations of fact by the parties to the dispute and their allies. It is rather as if the law were to leave to the two drivers in a motor vehicle collision the sole responsibility for apportioning liability, helped only by the unruly crowd gathered around them at the scene of the accident.55

Given these challenges to the principles of equality of arms and impartiality endemic to SR repertoire, Part II of this book argues that the SC may step in and implement the legal consequences flowing from global security violations in some circumstances. This proposal aims to identify a viable alternative to unchecked unilateralism by injured States, which is intimately tied to (p.29) the exercise of autoqualification, and remove the prospect of those States self-judging both international law violations and the corresponding consequences in the SR implementation process. In 1963, Rosalyn Higgins investigated scenarios in which injured States must be allowed to invoke self-defence on an urgent basis, and she observed that ‘[t]‌emporarily, then, a state must be judge in its own cause’.56 However, she concluded that ‘in order that the right shall not be abused, it is essential that it be subjected to international review’; hinting at an important role for the SC in this setting, she added that ‘[t]his reasoning … becomes even more compelling where there exists an international organization entrusted with the primary responsibility for the maintenance of peace and security’.57

Whilst these dimensions of international relations will become evident subsequently, suffice it to say that disputing States’ respective qualifications of both ‘terrorism’ and internationally wrongful acts in the global security context will invariably inform the unilateral deployment of secondary rules of responsibility. A salient example arose in the ICJ’s Nicaragua judgment. Whilst debate still surrounds the legal nature of the paramilitary activities carried out by the Contras rebels, it should be recalled that Nicaragua classified the guerrillas as ‘terrorists’, thereby propelling the intersection of autoqualification and SR to the fore.58 In the post-9/11 world, disparate and potentially dire legal and political consequences can result from governments labelling and qualifying certain individuals as ‘terrorists’, with the notion of ‘terrorism’ now embodying far more extensive legal content, at least on the domestic plane.59 These considerations pave the way for the following brief observations on the role of attribution as addressed in Nicaragua and often applied across both SR law and self-defence repertoire.

1.3 The Loaded Notion of ‘Attribution’ and Nicaragua’s Legacy: Merging State Responsibility and Use of Force Repertoire

Both the law governing use of force and SR repertoire have developed considerably since 9/11, sometimes in tandem, principally through State and institutional practice. Academic commentary has chronicled this evolution, sometimes critically. One consequence is that there is a growing tendency within legal scholarship to subsume self-defence within SR repertoire, an exercise bordering on what (p.30) some construe as a ‘bastardly’ conflation of two distinct regimes.60 This confusion stems in large part from the fact that in its famous Nicaragua decision, the ICJ effectively borrowed the central tenets of its inquiry on recourse to force from SR logic, which engendered considerable practical and conceptual uncertainty as to the application of attribution across both these fields.61 Consequently, an exceedingly pressing question emerged: whether an ‘armed attack’ carried out by non-State actors (eg transnational terrorism) must be attributable to a State (ie because it failed to prevent it or provided logistical support/sanctuary to the terrorists) before that State can be targeted in self-defence. As a corollary, considerable confusion surrounds the applicable threshold of attribution in cases of State failures to control terrorist units located on their territory adequately.

Since 9/11, three broad strands of legal scholarship have gradually formed on these questions.62 At one end of the spectrum, commentators seem to maintain that the invocation of self-defence must be predicated on the prior attribution to the targeted State of the terrorist attack, pursuant to SR logic.63 In summary, the mechanism of attribution thus converts the non-State act into an ‘armed attack’ by the State. This conversion must be achieved through the onerous test of ‘effective control’ developed by the ICJ in Nicaragua and subsequently confirmed by that Court.64 Such an exacting standard requires a seemingly inordinate level of State control over the activities of non-State actors, which typically translates into active/direct involvement taking the form of instructions, direction, or control over specific acts. Put another way, Nicaragua unequivocally laid down a standard of agency as the dominant paradigm in the field.65 Obviously, several (p.31) commentators construe this agency standard as ill-suited to respond to global security threats, particularly the challenges brought on by terrorism, since the ‘effective control’ criterion fails to capture adequately the real degrees of State support of or complicity with terrorism, or the polymorphous structural realities of terrorist networks.66 Others caution against extending this standard to use of force repertoire, concluding that whilst SR law presents criteria that may apply by analogy to use of force, this extension should not be done uncritically given that both normative schemes respond to different rationales. In short, SR governs the legal consequences flowing from international legal breaches whereas the other regime regulates the conditions for the lawful use of force.67

At the other end of the spectrum, scholars seemingly advocate the abolishment of attribution, inferring that State involvement has been excised from the purview of the legal calculus, and that the severity of a given non-State attack dictates the level of available responses, including those rooted in self-defence.68 Alternatively, grounding their thesis on the ICJ’s Corfu Channel judgment, some publicists depict the potential evolution of international law towards a model of automatic attribution; it would apply in cases where sanctuary States do not adequately control their territory, thereby failing to thwart transnational terrorism and other global security threats. In such instances, as was the case of Lebanon regarding Hezbollah factions operating on its soil in the lead-up to the 2006 conflict between Israel and Hezbollah, the ICJ’s decision, coupled with the SC’s post-9/11 resolution-making, would all trigger Lebanon’s international responsibility.69 Accordingly, a sanctuary State may be targeted in self-defence, irrespective of whether it has been held internationally responsible for the non-State terrorist attack via the mechanism of attribution.

Finally, advocating a more nuanced approach, other interlocutors flirt with the idea that whilst some degree of attribution might still be required to establish the requisite nexus between a State and non-State terrorism to substantiate resort to self-defence, the resulting applicable standard is not as onerous as that of ‘effective control’. Indeed, it may be queried whether the ‘effective control’ standard for attribution elaborated by the ICJ in Nicaragua was perceived, by the (p.32) Court itself, as being as exacting as it has been portrayed in the literature and subsequent judicial pronouncements. Granted, the Court invoked a standard of ‘effective control’ over individuals or non-State actors as the governing criterion for attributing wrongful acts to States.70 However, it can be argued that such attribution logic did not inform the Court’s distinct dismissal of arguments grounded in self-defence. In paragraph 195, the Court did ‘not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support’.71 One possible construction of this excerpt is to conclude that the Court was further circumscribing the legal test for attribution: in short, such a standard (ie attributing an ‘armed attack’ to the State) could not be fulfilled had the State merely provided arms or logistical support to the irregulars. By contemplating this passage through the prism of the Court’s earlier formulation of ‘attribution’ in the judgment, one can reasonably infer that the Court was in fact applying that standard to the facts of the case in paragraph 195.72

And yet, this conclusion might turn out to be erroneous when examined in tandem with a later passage in the judgment, thereby evincing that the Court was not dealing with attribution in paragraph 195. Its remarks are apposite:

[e]‌ven assuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the Government of Nicaragua, to justify invocation of the right of collective self-defence in customary international law, it would have to be equated with an armed attack by Nicaragua on El Salvador. As stated above, the Court is unable to consider that, in customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State.73

Simply put, the Court was underscoring that even in the event that the attribution standard had been satisfied, the wrongful behaviour could not be tantamount to an ‘armed attack’. Consequently, when tackling the provision of weaponry in paragraph 195 of the judgment, the ICJ was likely to be distinguishing the question of attribution as a stand-alone and distinct issue from its finding that the provision of weaponry does not amount to an ‘armed attack’. Otherwise put, the perception that the Court, at paragraph 195 of its judgment, concluded that the provision of weaponry is insufficient for the purposes of attributing an ‘armed attack’ to the State might be misguided. One might ponder whether the Court’s analytical inquiry would have been more appropriately framed as follows: whether the provision of weaponry could act as a catalyst for attributing responsibility to the State for an actual attack, as opposed to querying whether the act of providing weapons to the rebels could amount to an ‘armed attack’ and, correspondingly, whether the supply of those arms could in turn be attributed to Nicaragua. Indeed, there (p.33) is no doubt that an actual ‘armed attack’ must be carried out before self-defence repertoire is set into motion. Whilst the ICJ’s principal focus should have been on invoking the provision of weaponry as the foremost analytical linchpin for the purposes of attributing responsibility for the armed attack, it chose instead, perhaps questionably, to examine whether responsibility for the provision of arms could be attributed to the State.74

A logical inference could be that the ICJ was not engaging with the question of attribution at all when exploring the legal contours of the concept of ‘armed attack’. This conclusion is certainly congruent with the fact that whilst the Court brandished the criterion of ‘effective control’ as the legal standard governing attribution, no reference to that principle was made by the Court in the context of its discussion on self-defence. Furthermore, it might be queried whether the Court was actually invoking general attribution principles under SR repertoire when examining whether an ‘armed attack’ had occurred in paragraph 195 of its judgment; in particular, the ICJ was rather seeking inspiration from the General Assembly (GA) resolution on the Definition of Aggression.75

As discussed in Part III of this book, it has become generally accepted that in some circumstances, an injured State may target non-State actors and terrorist irregulars inside the territory of another State, in response to a private terrorist strike that was launched from therein. However, the role of SR in this setting remains to be clarified: publicists must determine whether a complete overhaul of the regime of secondary norms, a more modest but still substantial lowering of attribution principles, or the crystallization of a lex specialis regarding SR for terrorism has (have) resulted from contemporaneous events. Jutta Brunnée and Stephen Toope captured this uncertainty, whilst leaning towards accepting that relevant secondary SR norms and rules governing recourse to force have been relaxed: ‘[i]‌nternational practice seems to have evolved both to allow self-defence against armed attacks by non-state forces, and to loosen the required link between such forces and a state in which armed defence measures are undertaken’.76

This evolution in State practice and opinio juris unquestionably stems from post-9/11 developments and, consequently, ‘aspects of collective response to the September 11 attacks strongly suggest that the threshold for attribution has been lowered substantially’.77 Some commentators, whether explicitly or by implication, similarly opine that the response targeting Afghanistan has relaxed the relevant legal standards, either through the loosening of use of force principles78 (p.34) or via a contortion of self-defence.79 Thus, less active forms of support such as toleration, acquiescence, wilful blindness, or the harbouring of terrorists on a State’s territory might be sufficient to trigger responsibility as a predicate for the invocation of self-defence.80 Similarly, a perhaps compatible argument centres on the possible emergence of the ‘unwilling or unable’ doctrine; that is to say, defensive force could be directed against a State following its failure to prevent transnational terrorism on the basis that it was unwilling or unable to thwart the security threat.81

This fairly new canon of scholarship, however, sometimes fails to elucidate several points of importance, chief among them the question whether self-defence is directed against the sanctuary State, on the basis of the prior establishment of its international responsibility, or whether such forcible response solely targets terrorist individuals or entities within that State’s territory. In the latter scenario—namely, where an injured State forcibly targets irregulars and non-State actors in another State’s territory—there is no doubt that such reaction should conform to the principle of sovereign equality.82 More broadly, in such instances the role played by the law governing SR in the self-defence calculus is not entirely clear, not to mention that further clarification is needed on whether logistical inability of a State to repress terrorism would be sufficient to fulfil the threshold of attribution, or whether genuine lack of political will (including governmental refusal to divert resources toward counterterrorism structures) constitutes a standard for triggering use of force.83 Undoubtedly, factual circumstances surrounding State failures to uphold obligations of prevention, be they related to terrorism or other global security threats, will complicate the equation and further obfuscate the (p.35) nexus between SR law and recourse to force.84 For one thing, it is arguable that lesser forms of State involvement in transnational terrorism falling short of direct support, such as tacit acquiescence, logistical support, mere toleration, or territorial sanctuary, could always be said to facilitate global security threats. Granted, in the Nicaragua case the ICJ took the view that the threshold of ‘armed attack’ would not be fulfilled by mere assistance to guerrillas consisting of provision of weapons or other types of logistical support, absent any other substantial involvement of the sponsoring State in the unlawful activities carried out by non-State actors.85 However, this stance has been staunchly challenged, even prior to 9/11, in response to the advent of transnational, State-sponsored, or State-condoned terrorism; the principal counterarguments to the ICJ’s rationale on this front perhaps hint at the emergence of a lex specialis, lying at the intersection of SR and recourse to force, in instances where States harbour or support terrorists on their soil in a manner that falls short of an ‘armed attack’.86

A State’s failure to prevent terrorism emanating from its territory unequivocally violates international legal norms and binding SC resolutions. Moreover, the emergence of a new self-defence legal paradigm under the UN Charter—which remains open to challenge and largely driven by United States (US) foreign policy and practice after 9/11—may have significant implications for the notion of consent. For instance, it has been argued that Pakistan did not consent to US-led counterterrorism activities carried out on its soil, particularly unmanned drone strikes, which would signal a violation of its sovereignty and a contravention of international law.87 Conversely, a counterargument can be convincingly advanced that if Pakistan is unable to exercise its sovereignty effectively or, at least, in conformity with the cardinal principle of non-intervention in the affairs of third States under the Charter, it has essentially forfeited some of its sovereign prerogatives and could be subject to countermeasures or responses involving self-defence.88 However, it is equally fair to posit that a State that failed to thwart a global security breach emanating from its territory—terrorist strikes, for example—can perhaps cure this failure, or at least contain any ensuing repercussions, by accepting (p.36) outside assistance or intervention to repel further threats. Unsurprisingly, in the wake of 9/11 some publicists have argued that States are beholden to an obligation of counterterrorism capacity building and in the absence of such ability have a consequential duty to seek assistance in meeting their primary obligation; moreover, failure to meet this undertaking would subject them to SR.89 As will be seen in Part III of this book, this scheme of obligations also stems from the post-9/11 security frameworks put into place by the SC.

One example resulted from the situation that arose in Mali in 2012, when terrorists began operating overtly within that State’s borders, prompting an urgent request by Malian authorities for external assistance in attempts to repel the terrorist threats percolating within its territory. Consequently, France intervened militarily in Mali from January 2013, targeting several terrorist factions operating within that State. Furthermore, the French troops were backed by a Chadian military contingent, to which other African military personnel were gradually added under the auspices of an SC-sanctioned African force.90 When taken as a whole, this instance of ‘intervention by invitation’ was undoubtedly lawful given that, on one hand, the Malian authorities had formulated a legally valid request for such intervention and, on the other, the stated purpose of the campaign was to stamp out a pressing global security threat: terrorism. Furthermore, the SC’s decision-making no doubt legitimized the French-led action in Mali, particularly in light of the fact that the UN political organ characterized the subversive factions as ‘terrorist groups/organizations’.91 In fact, three years later, the Council ‘[w]‌elcom[ed] the continued action by the French forces, at the request of the Malian authorities, to deter the terrorist threats in the North of Mali’.92 More importantly, this scenario presented interesting features for present purposes: at the outset, it must be pondered whether Mali attenuated its potential international responsibility—for example, in the event that terrorist factions ultimately launched transnational attacks from Mali into another territory—by accepting outside assistance in thwarting a global security threat it could not control adequately.93 It is also interesting that the relevant SC resolution is replete with language compatible with SR—particularly oblique references to responsibility to protect (R2P) in respect of Malian authorities and the terrorist threats they faced94—which further supports the rapprochement between SR and the action of UN organs, as thoroughly explored in Part II of this book. Similarly, in July (p.37) 2015, Turkey persuaded the US to use its southern airbases in order to launch airstrikes to combat Islamic State of Iraq and the Levant (ISIL) militants along the Syrian border,95 a decision which could assuage Turkey’s potential responsibility and increase its due diligence capital under SR law.

One commentator aptly captures the legal and factual incongruities that may flow from the conflation of SR and use of force repertoire, against the backdrop of polymorphous, transnational, and global security threats: ‘[i]‌n the fight against international terrorism the most intrinsic problems of justification of the use of force and State responsibility under international law arise when a State has recourse to forcible measures in the territory of another State without its prior consent’.96 Thus, academic and political resistance to recent US counterterrorism practice would tend to indicate that there is insufficient State practice and opinio juris to support the consecration of the ‘unwilling or unable’ doctrine in international law. Much of the confusion surrounding this allegedly novel ‘doctrine’ stems from the fact that ‘attribution’ remains a normative operation used to trigger both SR and recourse to force repertoire. In many ways, the ICJ’s Nicaragua decision further perpetuated the conceptual ambiguity surrounding the operation of attribution, particularly in cases of SR for the wrongful use of force.97

Whilst compelling arguments support all three strands of scholarship, it has been suggested that ‘[a]‌n examination of the decisions of the ICJ, State practice and opinio juris will reveal that the most accurate view is that the attribution threshold is now the provision to the attackers of sanctuary and support’.98 Ultimately, determining both that global security duties have been violated and the modalities governing the engagement of secondary norms remains largely dependent on a factual and context-sensitive analysis of State failures to prevent terrorism and other similarly harmful activities.

1.4 Conclusion: The Evolution of State Practice and Opinio Juris

There is rich State and institutional practice, both before and after 9/11, recognizing an injured State’s right to pursue terrorists into a neighbouring country, though such reactions have not always been framed unequivocally within SR (p.38) repertoire (ie countermeasures).99 Foreshadowing the inquiry unfolded in Part III of this book, Thomas Franck hinted at the inherent compatibility between SR and recourse to force in the year following 9/11. He stated: ‘[i]‌t is becoming clear that a victim-state may invoke Article 51 [of the UN Charter] to take armed countermeasures in accordance with international law and UN practice against any territory harboring, supporting or tolerating activities that culminate in, or are likely to give rise to, insurgent infiltrations or terrorist attack’ (emphasis added).100 Consequently, through the lens of the ‘harbouring or supporting’ terrorism paradigm, injured States have exercised this right, which remains inextricably linked to SR repertoire because it invariably rests upon prior wrongdoing by the targeted State (ie failures to prevent terrorist strikes, extradite, or punish, suppress terrorist fundraising, etc). Pre-9/11 State practice also supported similar responses, although perhaps not as explicitly as nowadays: Senegal set foot in Guinea-Bissau both in 1992 and 1995 ‘to strike at safe havens used as bases by opposition forces’;101 ‘Tajikistan pursued irregulars into Afghanistan’;102 and the US bombed parts of the Sudan and Afghanistan, following the 1998 attacks on US embassies in Tanzania and Kenya, although this action was initially met with criticism in non-UN fora.103

Moreover, by authorizing use of force against the Taliban and Afghanistan after 9/11, the SC might have further reinforced the emergence of a new precedent in SR law (whilst also straddling recourse to force repertoire). Indeed, ‘[t]‌he traditionalist position that the right to self-defense under Article 51 of the Charter of the United Nations requires an armed attack by a State has come under increasing challenge in the recent past’.104 Whilst it now seems acceptable that injured States respond with force against non-State terrorist attacks,105 the implications of this evolution in State practice for the application of attribution principles (and secondary SR norms, more broadly) remains unclear. It is to be hoped that these implications will come into greater focus in subsequent chapters of this book.

Notes:

(1) There is voluminous scholarship on the mechanics of SR and the content and application of secondary norms. See, eg, LANM Barnhoorn and KC Wellens (eds), Diversity in Secondary Rules and the Unity of International Law (Nijhoff 1995); D Alland, Justice Privée et Ordre Juridique International: Étude Théorique des Contre-mesures en Droit International Public (Pedone 1994); B Bollecker-Stern, Le Préjudice dans la Théorie de la Responsabilité Internationale (Pedone 1973); Thesaurus Acroasium Vol 20: Responsibility of States (Institute of Public International Law and International Relations of Thessaloniki 1993); R Provost (ed.), State Responsibility in International Law (Ashgate 2002); M Spinedi and B Simma (eds), United Nations Codification of State Responsibility (Oceana 1987); D Alland and J Combacau, ‘“Primary” and “Secondary” Rules in the Law of State Responsibility: Categorizing International Obligations’ (1985) 16 NYIL 81.

(2) Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (2001); (2001) II(2) YILC 26 (and Commentary ibid 31).

(3) JR Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96 AJIL 874, 876.

(4) P Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997) 254. See also R Higgins, Problems & Process: International Law and How We Use It (OUP 1994) 148 (stressing the inherent difficulty in codification); R Provost, ‘Introduction’ in Provost (n 1) xii (underscoring the ILC’s difficulties in reaching a consensus on the rules to be codified, and emphasizing that ‘the diversity of opinions within the Commission mirrors the many real substantial uncertainties which characterize this field of international law’).

(5) Consequently, Special Rapporteur Ago decided to shift the focus of the ILC away from the elaboration of substantive norms governing the field of protection of aliens—an exercise originally initiated by Special Rapporteur García-Amador—to the adoption of general and secondary norms of responsibility, formulated at a high level of abstraction. See, eg, Y Matsui, ‘The Transformation of the Law of State Responsibility’ in Thesaurus Acroasium (n 1) 1, 55. Consequently, ‘Ago created a politically safe space within which the ILC could work and largely avoid the contentious debates of the day about expropriation and valuation of property.’ See D Bodansky and JR Crook, ‘Introduction and Overview (Symposium: The ILC’s State Responsibility Articles)’ (2002) 96 AJIL 773, 780.

(6) Indeed, historically considerable uncertainty regarding the work of the ILC, along with the application of general principles of international liability, has permeated legal scholarship. See, eg, P Allott, ‘State Responsibility and the Unmaking of International Law’ (1998) 29 HILJ 1, esp 12.

(7) Provost (n 4) xi.

(8) E Roucounas, ‘Non-State Actors: Areas of International Responsibility in Need of Further Exploration’ in M Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (Brill 2005) 391, 399.

(9) See, eg, T Gazzini, ‘The Legal Nature of WTO Obligations and the Consequences of Their Violation’ (2006) 17 EJIL 723, 729–30.

(10) ILC, ‘Report of the International Law Commission on the Work of its 37th Session’ (6 May–26 July 1985) UN Doc A/40/10; (1985) 37 II(2) YILC 26 [5]‌.

(11) See, eg, V-J Proulx, Transnational Terrorism and State Accountability: A New Theory of Prevention (Hart 2012) ch 1, sections C)2–C)4.

(12) See, eg, Roucounas (n 8) 392, 398–9, 404 (discussing the primary/secondary distinction and exploring its relationship with the changing of partners, whilst also calling for further elucidation of the legal consequences flowing from the new legal relationship engendered by secondary norms).

(13) See SM Villalpando, L’Émergence de la Communauté Internationale dans la Responsabilité des États (PUF 2005) 132, 247, 313–14.

(14) Roucounas (n 8) 404. On the relationship between the flagging authority and SR, as seen through a constructivist framework, see JD Ellis, ‘Fisheries Conversation in an Anarchical System: A Comparison of Rational Choice and Constructivist Perspectives’ (2007) 3 JILIR 1, 36.

(15) Roucounas (n 8) 404. For further discussion of these issues from the perspective of SR law, see JNK Mansell, Flag State Responsibility: Historical Development and Contemporary Issues (Springer 2009).

(16) SE Smith, ‘International Law: Blaming Big Brother: Holding States Accountable for the Devastation of Terrorism’ (2003) 56 Oklahoma Law Review 735, 739.

(17) For a variety of views on the concept of anarchy in the global order and related issues of structure, cooperation, coexistence, power, and coercive measures, see K Waltz, Theory of International Politics (McGraw-Hill 1979); K Waltz, ‘International Politics Is Not Foreign Policy’ (1996) 6 Security Studies 54; I Motoc, ‘Controversial Aspects of Democracy in International Law: The Right to Political Participation in Foreign Affairs’ in KK Koufa (ed.), Thesaurus Acroasium Vol 34: State Responsibility and the Individual (Sakkoulas 2006) 275, 287–8; A-M Slaughter, ‘International Law and International Relations Theory: A Prospectus’ in E Benvenisti and M Hirsch (eds), The Impact of International Law on International Cooperation (CUP 2006) 16, 22; J Mearsheimer, ‘The False Promise of International Institutions’ (1999) 19 International Security 5, 11–12, 14; RO Keohane, International Institutions and State Power: Essays in International Relations Theory (Westview Press 1989); H Bull, The Anarchical Society: A Study of Order in World Politics (4th edn, Palgrave Macmillan 2012); A Wendt, ‘Anarchy Is What States Make of it: The Social Construction of Power Politics’ (1992) 46 IO 392. For an application of these questions in the present book, see Section 4.2.1.

(18) RO Keohane, ‘Reciprocity in International Relations’ (1986) 40 IO 1, 1. See also generally B Buzan, People, States, and Fear: The National Security Problem in International Relations (University of North Carolina Press 1983) ch 3; RO Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton University Press 1984); Waltz, Theory (n 17).

(19) See, eg, S Chesterman, The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules-Based International System: Final Report and Recommendations from the Austrian Initiative, 2004–2008 (Federal Ministry of European and International Affairs 2008).

(20) But see Villalpando (n 13) 140 (highlighting that the ILC’s codification strategy could lead to the formulation of general principles of SR, applicable to all internationally wrongful acts, irrespective of the manner in which they arise).

(21) Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 43–4 (Judge Alvarez concurring).

(22) R Provost (n 4) xx. For similar points, see also I Brownlie, ‘The Responsibility of States for the Acts of International Organizations’ in Ragazzi (n 8) 360; DD Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and Authority’ (2002) 96 AJIL 857; P Reuter, ‘Trois Observations sur la Codification de la Responsabilité Internationale des États pour Fait Illicite’ in M Virally (ed.), Le Droit International au Service de la Paix, de la Justice et du Développement: Mélanges Michel Virally (Pedone 1991) 389, 390.

(23) See, eg, T Treves, ‘The International Law Commission’s Articles on State Responsibility and the Settlement of Disputes’ in Ragazzi (n 8) 227. He further adds that ‘[t]‌he consequences of a breach—the main subject of the [ARSIWA]—cannot in most concrete disputes be determined without ascertaining whether there has been a breach, namely without considering the primary rule’. See also generally J Combacau, ‘Obligations de Résultat et Obligations de Comportement: Quelques Questions et pas de Réponse’ in D Bardonnetet al. (eds), Mélanges Offerts à Paul Reuter: Le Droit International: Unité et Diversité (Pedone 1981) 181, 192.

(24) See Combacau (n 23) 183.

(25) See, eg, L Condorelli, ‘The Imputability to States of Acts of International Terrorism’ (1989) 19 IYHR 233, 234.

(26) Consider Brownlie (n 22) 360 (noting the difficulty in applying general principles to the matter at hand and extrapolating this premise to the broader context of international law).

(27) See, eg, C Yamada, ‘Revisiting the International Law Commission’s Draft Articles on State Responsibility’ in Ragazzi (n 8) 118.

(28) See Higgins (n 4) 159–65.

(29) Smith (n 16) 739.

(30) M Finnemore and SJ Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’ (2000) 55 IO 743, 747. For the relevant aspect of the decision, see Corfu Channel Case (n 21) 22. On the emergence of the obligation of prevention with reference to Corfu Channel, see Proulx (n 11) 18–30.

(31) See, eg, H Thirlway, ‘Injured and Non-Injured States before the International Court of Justice’ in Ragazzi (n 8) 324.

(32) Thirlway (n 31) 323. See also A Cassese, International Law (2nd edn, OUP 2005) 244.

(33) See, eg, A Nissel, ‘The ILC Articles on State Responsibility: Between Self-Help and Solidarity’ (2005–6) 38 NYUJILP 355, 361. ARSIWA (n 2) Art 50 provides the following:

  1. (1.) Countermeasures shall not affect:

    1. ((a)) The obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;

    2. ((b)) Obligations for the protection of fundamental human rights;

    3. ((c)) Obligations of a humanitarian character prohibiting reprisals;

    4. ((d)) Other obligations under peremptory norms of general international law.

  2. (2.) A State taking countermeasures is not relieved from fulfilling its obligations:

    1. ((a)) Under any dispute settlement procedure applicable between it and the responsible State;

    2. ((b)) To respect the inviolability of diplomatic or consular agents, premises, archives and documents.

For a similar take on the more recently adopted ILC Articles on the Responsibility of IOs, see generally K Boon, ‘Regime Conflicts and the U.N. Security Council: Applying the Law of Responsibility’ (2010) 42 GWILR 787, 830. But see MA Drumbl, ‘Trail Smelter and the International Law Commission’s Work on State Responsibility for Internationally Wrongful Acts and State Liability’ in RM Bratspies and RA Miller (eds), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (CUP 2006) 98, 99 (contending that the ARSIWA ‘do not establish primary obligations that define acceptable or unacceptable standards of conduct’).

(34) JR Crawford, ‘Counter-Measures as Interim Measures’ (1994) 5 EJIL 65, 66.

(35) Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, Inter-American Court of Human Rights Series A No 18 (17 September 2003) [99].

(36) This reality will have considerable implications in the context of institutionalized implementation of SR. See Section 4.4.6.

(37) See, eg, M Ajevski, ‘Serious Breaches, the Draft Articles on State Responsibility and Universal Jurisdiction’ (2008) 2 European Journal of Legal Studies 12, 36–7.

(38) For a similar, yet more general, line of argument, see K Zemanek, ‘Does the Prospect of Incurring Responsibility Improve the Observance of International Law?’ in Ragazzi (n 8) 125–34.

(39) Trans-substantive rules are likely to be located in the interstices between primary and secondary norms, without firmly belonging to either category. However, they modulate and ultimately govern the scope and content of primary obligations. See DD Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’ in RB Lillich and D Magraw (eds), The Iran–United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Transnational Publishers 1998) 109, 128. See also G Gaja, ‘Primary and Secondary Rules in the International Law on State Responsibility’ (2014) 97 Rivista di Diritto Internazionale 981, 989 (emphasizing that attribution rules come into play to ‘define the conditions upon which the primary rule applies’). For critical appraisals of attribution in counterterrorism contexts, see T Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Hart 2006) 236–7; V-J Proulx, ‘Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks?’ (2005) 23 BJIL 615; Proulx (n 11).

(40) See ARSIWA (n 2) Arts 4–11. For some feminist critical legal scholars, the classical rule of the non-attribution of private behaviour to States might perpetuate a perhaps undesirable distinction between private and public conduct. In short, ‘[s]‌tate responsibility is a legal construct that allocates risk for the consequences of acts deemed wrongful by international law to the artificial entity of the state’. It follows that ‘[t]he state claims jurisdiction over the totality of functions within its territorial control; it might therefore be appropriate to assert responsibility for all wrongful acts emanating from it’. See C Chinkin, ‘A Critique of the Public/Private Dimension’ (1999) 10 EJIL 387, 395. On triggering international responsibility through the channels of ex post facto endorsement, see United States Diplomatic and Consular Staff in Tehran (USA v Iran) (Merits) [1980] ICJ Rep 3, 44–5.

(41) For instance, the relationship between attribution and wrongful acts carried out by individuals, such as armed opposition groups, features prominently in the list of under-explored issues affecting SR repertoire. See L Zegveld, The Accountability of Armed Opposition Groups in International Law (CUP 2002) 152–4. On the relationship between SR, self-defence, and attribution issues, see Part III of this book.

(42) See, eg, Agreement on Technical Barriers to Trade (adopted 12 April 1979, entered into force 1 January 1995) 1186 UNTS 276, Art 3. See also generally SM Villalpando, ‘Attribution of Conduct to the State: How the Rules of State Responsibility May Be Applied within the WTO Dispute Settlement System’ (2002) 5 Journal of International Economic Law 393; V Tomkiewicz (ed.), Organisation Mondiale du Commerce et Responsabilité (Pedone 2014); C-E Côté, ‘Sécurité Économique et Responsabilité de l’État au Sein de l’Organisation Mondiale du Commerce’ in M Rioux (ed.), Débordement Sécuritaire (Éditions de l’Institut d’Études Internationales de Montréal 2012) 59–88; RY Simo, ‘The Law of International Responsibility: The Case of the WTO as a “Lex Specialis” or the Fallacy of a “Self-contained” Regime’ (2014) 22 African Journal of International and Comparative Law 184.

(43) See Energy Charter Treaty (adopted 17 December 1994, entered into force 16 April 1998) (1995) 34 ILM 381, Arts 22–23. See also TW Wäelde, ‘Energy Charter Treaty-Based Investment Arbitration: Controversial Issues’ (2004) 5 Journal of World Investment & Trade 373.

(44) But see Wäelde (n 43) 408–9 (expounding that the principles enshrined in Energy Charter Treaty Arts 22–23 are philosophically congruent with attribution precepts under SR repertoire).

(45) See, eg, A Randelzhofer, ‘Use of Force’ in B Simmaet al. (eds), The Charter of the United Nations: A Commentary (2nd edn, OUP 2002) 788, 800 fn 30 (also highlighting that the prohibition on recourse to force encompasses forcible acts perpetrated by unofficial, militarily structured groups).

(46) See, eg, Separate Opinion of Judge Kooijmans, in Oil Platforms (Iran v USA) (Merits) [2003] ICJ Rep 161, 263 [54]–[55]. But see Higgins (n 4) 251.

(47) Compare I Brownlie, International Law and the Use of Force by States (Clarendon Press 1963) 279; C Gray, International Law and the Use of Force (2nd edn, OUP 2004) 124–5.

(48) On the disconnect between attribution in the law of treaties, the law of diplomatic representation, and SR law, see, eg, ILC, ‘Report of the International Law Commission on the Work of its 25th Session’ (7 May–13 July 1973) UN Doc A/9010/Rev.1; (1973) II YILC 188–98. For a similar critique under international criminal law, see T Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua Fallout’ (1998) 92 AJIL 236.

(49) See A Nollkaemper, ‘Attribution of Forcible Acts to States: Connections Between the Law On the Use of Force and the Law of State Responsibility’ in N Blokker and N Schrijver (eds), The Security Council and the Use of Force: Theory and Reality: A Need for Change? (Nijhoff 2005) 133, 140–1. See also Commentary on Draft Article 3, adopted upon first reading in ILC Report (n 48) 179–84.

(50) U Linderfalk, ‘State Responsibility and the Primary-Secondary Rules Terminology: The Role of Language for an Understanding of the International Legal System’ (2009) 78 NJIL 53, 62. See also his analysis at 60–2. At 62–3, he applies similar reasoning to ARSIWA (n 2) Arts 20–25, which govern circumstances precluding wrongfulness, although he somewhat tempers the analysis pertaining to those provisions.

(51) See R Provost, International Human Rights and Humanitarian Law (CUP 2002) 338 fn 2. See also H Kelsen, Peace Through Law (Chapel Hill, University of North Carolina Press 1944) 13–4; L Gross, ‘States As Organs of International Law and the Problem of Autointerpretation’ in G Lipshy (ed.), Law and Politics in the World Community (University of California Press 1953) 59, 72–3. See also generally L Gross, ‘States as Organs of International Law and the Problem of Autointerpretation’ in G Lipshy (ed.), Selected Essays on International Law and Organization (Transnational Publishers 1993) 167–97.

(52) See, eg, Alland, Justice (n 1) 107–20; Gross, ‘States’ in Lipshy (n 51) 80–1; Provost (n 51) 338.

(53) Provost (n 51) 338.

(54) Provost (n 51) 338.

(55) See TM Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States’ (1970) 64 AJIL 809, 817. Compare with O Schachter, ‘The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620, 1645 (discussing ‘hard’ cases involving force and underscoring that ‘sharp differences of judgment … rest on conflicting interpretations of the agreed rules, and to a much larger extent, the differences arise from divergent perceptions of facts and motives. Yet underlying the disagreements, there is a considerable area of agreement on the core substantive law’).

(56) R Higgins, The Development of International Law through the Political Organs of the United Nations (OUP 1963) 205.

(57) Higgins (n 56) 205.

(58) See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14, 63–4 [113], 68 [121].

(59) See, eg, S Setty, ‘What’s in a Name? How Nations Define Terrorism Ten Years after 9/11’ (2011) 33 University of Pennsylvania Journal of International Law 1.

(60) J-C Martin, Les Règles Internationales Relative à la Lutte contre le Terrorisme (Bruylant 2006) 497.

(61) On the difficulties and challenges associated with deploying attribution mechanics following terrorist attacks carried out by non-State actors, see, eg, KN Trapp, ‘The Use of Force Against Terrorists: A Reply to Christian J. Tams’ (2009) 20 EJIL 1049.

(62) See, eg, T Ruys, ‘Crossing the Thin Blue Line: An Inquiry into Israel’s Recourse to Self-Defense Against Hezbollah’ (2007) 43 SJIL 265, 274; T Ruys and S Verhoeven, ‘Attacks by Private Actors and the Right of Self-Defence’ (2005) 10 JCSL 289.

(63) See, eg, G Travalio and J Altenburg, ‘State Responsibility for Sponsorship of Terrorist and Insurgent Groups: Terrorism, State Responsibility and the Use of Military Force’ (2003) 4 CJIL 97; A Cassese, ‘Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 EJIL 993, 996–7; I Scobbie, ‘Words my Mother Never Taught Me—“In Defense of the International Court”’ (2005) 99 AJIL 76. Those who do not consider that the use of defensive force against terrorists is contingent on the prior establishment of SR include Brownlie (n 47) 375; TM Franck, ‘Terrorism and the Right of Self-Defense’ (2001) 95 AJIL 839, 840; R Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense’ (2005) 99 AJIL 52, 58. For a thoughtful discussion of the various arguments for and against the initial position, see Becker (n 39) 158–62.

(64) Nicaragua v USA (Merits) (n 58) [115]; Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 136, [139]; Armed Activities on the Territory of the Congo (DRC v Uganda) (Merits) [2005] ICJ Rep 116, [146]–[160]; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, [384], [391], [400]–[401].

(65) For both pre- and post-Nicaragua scholarly confirmations of agency as the legal basis for triggering SR, see I Brownlie, System of the Law of Nations: State Responsibility (Part I) (Clarendon Press 1983) 132–66; Caron (n 39) 109 ff. On the specific question of Osama bin Laden’s status as an agent of the State, see J Quigley, ‘International Law Violations by the United States in the Middle East as a Factor Behind anti-American Terrorism’ (2002) 63 University of Pittsburgh Law Review 815, 826.

(66) See, eg, Becker (n 39); Proulx (n 11); J Rosenthal, ‘Book Annotations’ (2006) 39 NYUJILP 141, 147. For a variety of views on this, both before and after Nicaragua, see A-M Slaughter and W Burke-White, ‘An International Constitutional Moment’ (2002) 43 HILJ 1, 20; Condorelli (n 25) 233–46; Y Dinstein, War, Aggression and Self-Defence (3rd edn, CUP 2001) 182–3 and ‘The International Legal Response to Terrorism’ in R Ago (ed.), International Law at the Time of Its Codification: Essays in Honour of Roberto Ago, vol 2 (Giuffrè 1987) 139, 140, 142. On the notion of ‘complicity’ under SR, see HP Aust, Complicity and the Law of State Responsibility (CUP 2011).

(67) See, eg, N Tsagourias, ‘Non-State Actors in International Institutional Peace and Security: Non-State Actors and the Use of Force’ in J d’Aspremont (ed.), Participants in the International Legal System: Multiple Perspective on Non-State Actors in International Law (Routledge 2011) 326, 333–4.

(68) See, eg, C Stahn, ‘The Right to Self-Defence, Article 51(1/2) of the UN Charter, and International Terrorism’ (2003) 27 FFWA 35.

(69) See, eg, S Kirchner, ‘Third Party Liability for Hezbollah Attacks against Israel’ (2006) 7 German Law Journal 777, 781–2 (also observing that every State is under an obligation erga omnes to combat terrorism).

(70) Nicaragua v USA (Merits) (n 58) [115].

(71) Nicaragua v USA (Merits) (n 58) [195].

(72) See also A Garwood-Gowers, ‘Self-Defence against Terrorism in the Post 9-11 World’ (2004) 4 Queensland University of Technology Law & Justice Journal 1, 5.

(73) Nicaragua v USA (Merits) (n 58) [230].

(74) On these issues, see also M Brent, ‘Responding to Attacks by Non-State Actors: The Attribution Requirement of Self-Defence’ (2009) 16 Australian International Law Journal 133, 137–8.

(75) See UNGA Res 3314 (XXIX) (14 December 1974), Annex, Art 3(g).

(76) J Brunnée and SJ Toope, Legitimacy and Legality in International Law: An Interactional Account (CUP 2010) 296. See also SR Ratner, ‘Jus ad Bellum and Jus in Bello after September 11’ (2002) 96 AJIL 905, 908–10; SA Barbour and JA Salzman, ‘“The Tangled Web”: The Right of Self-Defense against Non-State Actors in the Armed Activities Case’ (2008) 40 NYUJILP 53, 65.

(77) D Jinks, ‘State Responsibility for the Acts of Private Armed Groups’ (2003) 4 CJIL 83, 89.

(78) See, eg, M Byers, ‘Terrorism, the Use of Force, and International Law after 11 September’ (2002) 51 ICLQ 401.

(79) Some scholars argued that the principles of jus ad bellum and SR are sufficiently tailored to respond to terrorism, as long as they are viewed in a different light. See, eg, D Brown, ‘Use of force against Terrorism after September 11th: State Responsibility, Self-Defense and Other Responses’ (2003) 11 Cardozo Journal of International and Comparative Law 1. Other commentators counterargued that the facts surrounding the 2001 military campaign in Afghanistan should not be distorted to ‘fit’ under the principles of use of force. See Franck (n 63) 840. On the difficulties related to the evidentiary burden in invoking self-defence against terrorism, see JI Charney, ‘The Use of Force against Terrorism and International Law’ (2001) 95 AJIL 835.

(80) See generally Proulx (n 11). But see JJ Paust, ‘Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Drones in Pakistan’ (2010) 19 Journal of Transnational Law & Policy 237, 249 fn 32. However, it appears that ‘anti-terrorist force’ could be directed against the sanctuary State in that scenario. See CJ Tams, ‘The Use of Force against Terrorists’ (2009) 20 EJIL 359; T Šurlan, ‘The Use of Force and Terrorism’ (2010) Journal of Criminalistics and Law 51, 59. For a fully fledged discussion, see Part III of this book.

(81) See, eg, DI Ahmed, ‘Defending Weak States Against the “Unwilling or Unable” Doctrine of Self-Defense’ (2013) 9 JILIR 1; S Regmi, ‘Right to Self Defense against International Terrorism’ <http://ssrn.com/abstract=2171068> accessed 25 May 2015; A Deeks, ‘“Unwilling or Unable”: Toward a Normative Framework for Extraterritorial Self-Defense’ (2012) 52 VJIL 483.

(82) See, eg, HA Noorda, ‘The Principle of Sovereign Equality with Respect to Wars with Non-State Actors’ (2013) 41 Philosophia 337.

(83) See, eg, L van den Herik and N Schrijver, ‘Annex—Leiden Policy Recommendations on Counter-Terrorism and International Law’ in L van den Herik and N Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (CUP 2013) 706 paras 42, 49–52.

(84) Consider the analysis delivered in SR Ratner, ‘Self-defence against Terrorists: The Meaning of Armed Attack’ in van den Herik and Schrijver (n 83) 334–55.

(85) See Nicaragua v USA (Merits) (n 58) [187]–[201].

(86) See, eg, O Schachter, International Law in Theory and Practice (Nijhoff 1991) 165. For a contrary view, see B Brun-Otto, ‘Self-Defence’ in R Bernhardtet al. (eds), Encyclopedia of Public International Law, vol 4 (Amsterdam, Elsevier 2000) 212. For post-9/11 accounts, see Becker (n 39) (espousing a causation-based model of SR); Proulx (n 11) (advocating a strict liability-infused SR model). See also Part III.

(87) See, eg, the various discussions and posts in KJ Heller, ‘Eric Posner Rejects the “Unwilling or Unable” Test!’ (9 October 2012) Opinio Juris <http://opiniojuris.org/2012/10/08/eric-posner-rejects-the-unwilling-or-unable-test/> accessed 30 April 2015.

(88) For a similar argument in respect of Lebanon in counterterrorism settings, see Proulx (n 11) 106. For divergent analyses of the notion of ‘consent’, with particular emphasis on the concept of ‘supremacy’, see A Deeks, ‘Consent to the Use of Force and International Law Supremacy’ (2013) 54 HILJ 1; compare with R Mullerson, ‘Intervention by Invitation’ in L Damrosch and D Scheffer (eds), Law and Force in the New International Order (Westview Press 1991) 127; TD Gill, ‘Military Intervention at the Invitation of a Government’ in TD Gill and D Fleck (eds), The Handbook of the International Law of Military Operations (OUP 2010) 229–32.

(89) See, eg, N Quénivet, ‘You Are the Weakest Link and We Will Help You! The Comprehensive Strategy of the United Nations to Fight Terrorism’ (2006) 11 JCSL 371, 390–1; KN Trapp, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence against Non-State Terrorist Actors’ (2007) 56 ICLQ 141, 147 fn 33.

(90) See UNSC Res 2085 (20 December 2012) UN Doc S/RES/2085.

(91) See, eg, SC Res 2085 (n 90) preamble, [2]‌, [7], [9(b)], [14]. On the legality of this intervention by invitation in the counterterrorism context, see T Christakis and K Bannelier, ‘Under the UN Security Council’s Watchful Eyes: Military Intervention by Invitation in the Malian Conflict’ (2013) 26 LJIL 855.

(92) UNSC Res 2227 (29 June 2015) UN Doc S/RES/2227, preamble.

(93) See, eg, Proulx (n 11) 288.

(94) See, eg, SC Res 2085 (n 90) [9(d)], [17].

(95) See, eg, S Tisdall, ‘Syrian Safe Zone: US Relents to Turkish Demands after Border Crisis Grows’ The Guardian (London, 27 July 2015) <www.theguardian.com/world/2015/jul/27/syrian-safe-zone-us-relents-to-turkish-demands-border-crisis-kurd-uk-military> accessed 12 August 2015; ‘US Deal with Turkey over ISIS May Go beyond Simple Use of an Airbase’ The Guardian (London, 24 July 2015) <www.theguardian.com/world/2015/jul/24/us-deal-turkey-isis-incirlik-airbase-erdogan-obama> accessed 12 August 2015.

(96) J Bóka, ‘Forcible Measures against International Terrorism and the Rule of Law’ <http://www.uni-miskolc.hu/uni/res/e_publications/pdf/boka.pdf> accessed 2 August 2015.

(97) See, eg, Section 1.3, this chapter.

(98) Brent (n 74) 136. On how the threshold of attribution and control under the ARSIWA might have been lowered, see generally Proulx (n 11).

(99) For a survey of relevant practice, see Proulx (n 11) ch 2. At the outset, it is important to emphasize that States often frame their reactions in terms of self-defence even though their conduct might also be compatible with the spirit of countermeasures. Traditionally, however, self-defence was conceived as a regime distinct from SR repertoire, although it has been incorporated into the ILC’s codification project as a circumstance precluding wrongfulness. See ARSIWA (n 2) Art 21. These issues will be explored in Part III.

(100) TM Franck, Recourse to Force: State Action Against Threats and Armed Attacks (CUP 2002) 67.

(101) Franck (n 100) 65. See also C Gray, International Law and the Use of Force (OUP 2000) 103.

(102) Franck (n 100) 64.

(103) See, eg, Franck (n 100) 66.

(104) JT Gathii, ‘Irregular Forces and Self-Defense under the UN Charter’ in ME O’Connell (ed.), What Is War? An Investigation in the Wake of 9/11 (Brill 2012) 97 (citing works by Proulx, Jinks, and Ruys and Verhoeven).

(105) See also R Van Steenberghe, ‘Self-Defence in Response to Attacks by Non-State Actors in the Light of Recent State Practice: A Step Forward?’ (2010) 23 LJIL 183.