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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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State Responsibility and Global Security in the Light of Unforeseen Transnational Phenomena

State Responsibility and Global Security in the Light of Unforeseen Transnational Phenomena

Chapter:
(p.39) 2 State Responsibility and Global Security in the Light of Unforeseen Transnational Phenomena
Source:
Institutionalizing State Responsibility
Author(s):

Vincent-Joël Proulx

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199680399.003.0004

Abstract and Keywords

This chapter investigates the problematic question of State support of terrorism, with some consideration of how a sanctuary State’s tacit support, toleration, acquiescence, or logical support of terrorism, which may all amount to its failure in preventing transnational strikes, may affect the deployment of secondary norms under State responsibility repertoire. It then explores how contemporaneous events, particularly the response to 9/11, have effectively merged or conflated certain aspects of State responsibility with use of force repertoire. The chapter concludes by analysing the prospects and limits of State responsibility in tackling other global security threats such as global warming and climate change along with the phenomenon of ungoverned spaces, whilst engaging the notions of risk assessment and precautionary approaches.

Keywords:   State responsibility, State-supported terrorism, attribution, use of force, climate change, environmental degradation, ungoverned spaces, precautionary approaches, cyberterrorism

2.1 Introduction

This chapter briefly addresses some of the challenges in applying State responsibility (SR) mechanisms to transnational threats not foreseen at the time the United Nations (UN) Charter was drafted. The world is now faced with exceedingly intractable threats which have cropped up against the backdrop of novel or expanded conceptions of both ‘international community’ and global security. As prefaced earlier, the principal case study for gauging the potential contributions of institutionalized SR remains transnational terrorism. It is certainly true that present-day terrorism is polymorphous and rarely takes root in bilateral, transborder armed conflict, as was the case with many terrorist excursions in the 1960s, 1970s, and 1980s. Supplanting that model in the 1990s and early 2000s was the cellular structure-orchestrated, large-scale attack type of terrorism which stemmed from the emergence of transnational terrorist networks such as Al-Qaeda. This type of terrorism resulted in several terrorist strikes, including the New York 9/11, London 7/7, Bali, and Madrid attacks. The ensuing ‘war’ on terror offered considerable media coverage to transnational terrorist networks, thereby enhancing the status of subversive non-State actors on the international scene,1 a trend that continues today.

However, more recently we have also witnessed a recrudescence of ‘lone wolf’ and ‘home-grown’ terrorist plots resulting in attacks, often unsophisticated in nature and directed at soft targets, in Australia, Belgium, Canada, Chad, Denmark, France, Kenya, Lebanon, Malaysia, Mali, Nigeria, Norway, Thailand, (p.40) the United Kingdom, the United States, and elsewhere. These developments have propelled to the fore the need to harness available legal and policy options with a view to preventing such practices, even including bolstering domestic criminal legal regimes.2 That said, it will become apparent in subsequent sections of this book that SR law and other international legal mechanisms can also play a role in global security strategies. In particular, many other transnational terrorist networks are still very much active in various parts of the globe, including Al-Qaeda, Harakat al-Shabaab al-Mujahideen, and Abu Sayyaf. Such entities often capitalize on territorial solace, weak counterterrorism structures, and governmental toleration. Many terrorist organizations are increasingly gaining access to new and devastating weaponry and making profitable use of virtual social network platforms. In particular, the world has witnessed the creation and horrendous activities of Islamic State of Iraq and the Levant (ISIL) in Iraq, Syria, and Libya, which are increasingly attracting scholarly attention,3 with some calling into question the potential benefits of counterterrorism strategies in forestalling this particular threat.4 Moreover, the group’s reach and influence are expanding across the globe with, for example, the leaderships of several groups, such as Boko Haram in Nigeria and Abu Sayyaf in Southeast Asia, swearing allegiance to ISIL. ISIL reciprocates by assisting some terrorists groups with their video propaganda activities and funding or supporting others, such as the Libyan group Ansar al-Sharia and Ansar Beit al-Maqdis in the Sinai Peninsula.5

This chapter investigates the problematic question of State support of terrorism with some consideration of how a sanctuary State’s tacit support, toleration, acquiescence, or logistical support of terrorism, which all contribute to its violation of the obligation to prevent, may affect the deployment of secondary norms (p.41) under SR repertoire. Given the conclusions in Sections 1.3 and 1.4 in the previous chapter, and to provide a frame for subsequent arguments, particularly in Part III, the chapter then moves on to an exploration of how recent events, particularly the response to 9/11, have effectively merged or conflated certain aspects of SR with use of force repertoire. Stepping away from the principal case study of terrorism, the chapter concludes by analysing briefly the prospects and limits of SR in tackling other global security threats whilst engaging the notions of risk assessment and precautionary approaches.

2.2 The Problem of State Support of Terrorism

The obligation incumbent upon all States to prevent terrorist attacks emanating from their territory can be derived from several international instruments, texts, rules, and principles.6 In fact, this obligation and its ancillary duties pre-dated 9/11. For example, States have an obligation to prevent the perpetration and financing of terrorism, particularly terrorist hijackings under the Hague Convention of 1971.7 States also have international legal obligations to prosecute and/or extradite the authors of terrorist acts, pursuant to various multilateral conventions.8 In fact, scholars have interpreted the provisions of extradition treaties and mutual judicial assistance agreements as fundamental obligations to combat and prevent terrorism for the purposes of triggering SR.9

More importantly, through Resolution 1373, the UN Security Council (UNSC) promulgated a general and distinct obligation to prevent transnational terrorism. This autonomous duty, which was described by some in the wake of 9/11 as the new de minimis legal basis in global counterterrorism, encompasses both active and passive State support, along with all other types of conceivable assistance to individuals, organizations, or other groups engaged in terrorist activities, ranging from economic to logistical support.10 The principal polemic as regards (p.42) this duty for SR purposes pertains to its actual content insofar as the facts surrounding a particular breach may or may not justify a response involving force. This is particularly true given the vast range of State passivity, inaction, or ‘wilful blindness’ vis-à-vis terrorist activities taking root on any given territory.11 Hence, State toleration of terrorism, particularly the more subtle kinds, will pose considerable challenges to the implementation of SR by UN organs in global security contexts, not least because it is often difficult to attribute the acts of non-State actors to the State from a factual standpoint. As a corollary, this reality may create serious evidentiary impediments to establishing a persuasive case of SR, even in instances where a would-be responsible State could have done more to prevent a given terrorist attack. These ideas were very much alive in a thought-provoking article published in 1989 in which Antonio Cassese identified the ‘varying degrees of support or backing which may be given by a State to terrorist groups’.12

Amongst possible scenarios, he identified six highly relevant levels of governmental input or involvement in the facilitation of terrorist acts, which in turn may directly affect the establishment and implementation of SR, along with the application of secondary norms of responsibility and/or available remedies. In particular, Cassese explored the possibility of a State: (i) committing terrorist acts through actual State officials (citing the examples of the assassination of Khalil al-Wazir allegedly carried out by Israeli security forces in 1988, and the attack on the Greenpeace ship, Rainbow Warrior, by French secret service agents in 1985); (ii) employing, funding, equipping, organizing, controlling, and commanding unofficial agents, mercenaries, or armed bands in the perpetration of terrorist attacks; (iii) supplying financial or military aid to terrorist groups, which remain ‘independent’ from the official State apparatus; (iv) simply supplying logistical support to terrorist organizations (ie providing training facilities on its territory, which may arguably be analogous to Afghanistan’s role in the 9/11 attacks); (v) not providing any sort of ‘active’ or ‘direct’ assistance to terrorist organizations (eg aid, arms, etc) but simply allowing them to seek refuge or solace on its territory before and after the perpetration of terrorist attacks against third States; and (vi) not (p.43) providing any assistance whatsoever (ie direct, indirect, passive, active) to terrorist organizations perpetrating terrorist acts on the high seas or in international airspace against nationals of one or more States.13 Unsurprisingly, legal scholars have followed suit in the intervening decades by proposing new or updated schematic typologies for State support of terrorism, taking into account contemporaneous developments.14 As will be seen in subsequent sections of this chapter, however, Cassese’s typology holds true today.

The facts surrounding the military campaign in Afghanistan were somewhat novel and complex in character, given that the 9/11 attacks were orchestrated and perpetrated entirely by non-State actors. International law could not endorse a US-led ‘war’15 in Afghanistan solely against bin Laden and high-ranking members of Al-Qaeda because a terrorist organization simply does not constitute a State.16 Understandably, the US-led response against Afghanistan, along with the broader fight against terrorism, prompted some publicists to query whether such military action could qualify as legitimate self-defence since it was initially difficult to attribute the 9/11 attacks to Afghanistan under classical SR rules.17 As one commentator observed, ‘[i]‌t remains to be seen whether such limited understanding of self-defense would stand the test of time in an age where transnational actors beyond the nation-state, whether terrorist or not, gain ever more factual and legal significance’.18

Indeed, modest or passive State involvement in terrorism poses intractable challenges to SR repertoire, be they evidentiary, compensatory, or related to the mechanics of that normative scheme.19 Moreover, clear-cut cases of direct (p.44) State involvement in unlawful guerrilla warfare or terrorism—whether waged through agency channels or surrogate paramilitary factions—appear to fit neatly within conventional SR frameworks, at least in theory. Yet, they are not routinely resolved under those schemes. In the prophetic words of Soviet jurist Professor Staroushenko in 1984, ‘if a State proclaims terrorism as an instrument of its foreign policy, if the governmental authorities get involved in bringing about the criminal acts following, such activities became terrorist activities of a State’.20 However, more elusive models, such as those envisioned in scenarios (iii)–(v) above, eschew straightforward application of SR mechanisms and warrant further exploration. Therefore, such conceptually and practically challenging circumstances should always act as a prism through which any reform of SR repertoire, including its potential implementation through UN organs as explored in Part II of this book, should be contemplated.

2.3 The Impact of 9/11: Conflation of Use of Force Repertoire with State Responsibility

As discussed elsewhere,21 including in Section 1.4 of this book, international law has evolved to recognize an injured State’s right to pursue terrorists into a neighbouring country under Article 51 of the UN Charter. The rationale behind this development is as follows: because injured States may now invoke the international responsibility of territorial States via the ‘harbouring and supporting’ principle (ie for failures to prevent terrorism), this legal scheme carries with it a potential right to adopt measures involving limited force or self-defence against transborder terrorism in the most extreme cases. Indeed, the SC has sometimes approved subsequent use of force by an injured State, judging that the responsible (territorial) State had failed to prevent a terrorist excursion emanating from its territory. Academic commentary has followed suit, with some eminent publicists recognizing the right to use force to counteract violations of international law in such instances. As Professor Franck noted, ‘[t]‌his clearly confirms the right of a victim state to treat terrorism as an armed attack and those that facilitate or harbor terrorists as armed attackers against whom, subject to the UN Charter and international law, military force may be used in self-defense’.22

(p.45) As will be seen in Part III of this book, the conceptual challenge lies in elucidating to what extent SR law plays a role in facilitating such recourses to force, especially in the more difficult cases where State involvement in terrorism amounts to tacit acquiescence or mere toleration, or is virtually imperceptible, or so indecipherable as to elude the application of classical attribution rules. In fact, the juxtaposition of these two distinct legal regimes23 was very much at play in the Armed Activities case, in which the International Court of Justice (ICJ) concluded that Uganda could not invoke a right to self-defence against the Democratic Republic of Congo (DRC) because it had harboured an armed militia on its territory.24 This line of inquiry takes us back to a vital query which remains inextricably intertwined with the scheme of countermeasures under SR repertoire: when a State is unable or unwilling to thwart terrorist strikes emanating from its territory, should we expect it to allow extraneous forces on its soil to repel and contain the threat? Surely, the deployment of law enforcement units across that State’s border with a view to neutralizing the extremist elements would be permissible in such case,25 and has been rightly envisaged as a proportionate countermeasure under SR repertoire.26 However, the more challenging question remains whether a victim-State might be permitted to adopt more ambitious forcible countermeasures in such eventuality, including responses grounded in self-defence.

An affirmative answer to this question on the basis of proportionality and reasonableness, perhaps paired with the proximity of the UN Headquarters to (p.46) the 9/11 attack sites, might have been the driving force behind the approval of US-led military action in Afghanistan. However, the response to 9/11, coupled with the accompanying political rhetoric, further obfuscated the conceptual and practical distinctions underpinning the proper interplay between self-defence and SR in counterterrorism contexts. Whilst the US initially framed its rhetoric within a programme seeking to hold individual terrorists accountable,27 what was sometimes perceived as a ‘secondary goal’28 cropped up in this counterterrorism campaign and shifted the focal point squarely to holding States accountable for providing assistance or solace to terrorist groups.29 In summary, whilst it was clear that the US was pursuing both individuals and States responsible for perpetrating or aiding and abetting terrorism, the actual targets of its action in self-defence—and the legal basis for adopting such posture—were not as clear.30

Granted, it might sometimes be possible to conclude that the actions of non-State actors amount to the acts of the government itself, as though committed through a prolongation of the State (ie direct SR), thereby fulfilling classical attribution criteria explored in Section 1.3 of this book. This threshold might be more easily traversed where the non-armed wing of a terrorist organization has been subsumed under the State’s official governing apparatus (eg Hezbollah in Lebanon).31 However, the relationship that connected Afghanistan with Al-Qaeda prior to 9/11 arguably fell short in triggering any of the bases for attributing that organization’s (p.47) wrongful conduct to the State, pursuant to Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) Articles 4–11. In short, Afghanistan at best provided logistical support to the terrorist network, without endorsing its excursions or participating in the planning or execution of the 9/11 attacks, a level of involvement far removed from the criteria of control, direction, instructions, and interdependence underpinning the ARSIWA.32 Whilst difficult to countenance from both legal and factual standpoints in the light of classical attribution precepts, several publicists nonetheless opined—at least implicitly—that a finding of direct SR against Afghanistan for the 9/11 attacks would have probably justified a military campaign against it, thereby conflating use of force and SR repertoires.33 Going a step further, some authors even argued that the ‘law of state responsibility now appear[ed] to include states that are aware of ongoing international terrorism in their territory and who fail to suppress it by refusing to arrest, prosecute, or extradite’; consequently, they observed that ‘under this interpretation, acts of self-defense would be justified against not only Al-Qaeda, but the Taliban government of Afghanistan’.34

The US rhetoric after 9/11 was eventually substantiated by Congressional authorization to use force against Afghanistan35 and any State aiding or harbouring terrorists involved in the 9/11 attacks in the following terms:

[t]‌he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or (p.48) aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United State by such nations, organizations or persons.36

Moreover, as will be seen in Section 5.2.4 of this book, US-led military action in Afghanistan not only gathered significant support from the SC but also from other high-profile international and intergovernmental bodies. Whilst these developments were undoubtedly engendered by exceptional measures taken in light of extraordinary circumstances, they suggest, fifteen years later, an evolution in SR law, which could signal that secondary norms may trigger the application of recourse to force repertoire; more controversially, they hint at the emergence of a lex specialis according to which forcible responses—be they incremental or large-scale—might have become an available countermeasure to counteract the most extreme State failures to prevent terrorism.

Furthermore, by granting an authorization to use force against the Taliban and Afghanistan, at least implicitly, the SC seemingly reinforced the emergence of a new precedent in SR law (which happened to also straddle use of force repertoire). It must be queried whether this latter regime might in fact share an intimate—albeit limited—connection with the SR-derived notions of return to legality and cessation. Part III of this book addresses these questions in detail. The foregoing considerations also demonstrated that the law governing the application of SR principles to global security violations is very much in flux and might pose some challenges to the institutionalization of SR, especially through UN organs. Before moving on to more substantive SR implementation proposals in Part II of this book, it is helpful to review other global security challenges that may fall within this book’s analytical purview.

2.4 Other Global Security Threats: The Limits of State Responsibility

Whilst transnational terrorism constitutes the principal case study used in this book, SR repertoire may also play a role in addressing other global security challenges. Indeed, the State and institutional practice canvassed in Part II, which investigates the institutionalization of SR through UN organs, pertains to the implementation of that normative scheme in other global security contexts alongside terrorism, including the non-proliferation of weapons of mass destruction (WMDs), international humanitarian law (IHL) violations, human rights abuses, unlawful use of force, etc. The collective security system has considerably expanded since the end of the Cold War and carved out both law enforcement and legislative functions for the SC which seem far removed from its attributions as originally envisaged. Consequently, the Council has been particularly active in (p.49) enforcing human rights and legislating on counterterrorism matters, although the latter exercise is arguably subject to legal, political, and practical limits.37

Moreover, the reform-oriented discourse advanced by the High-Level Panel on Threats, Challenges and Change in its report, titled ‘A More Secure World: Our Shared Responsibility’, carved out a proactive role for the SC in responding to non-military global security threats, including environmental degradation, terrorism, emerging and infectious diseases, nuclear proliferation, civil war, and poverty.38 For example, the case can arguably be made that climate change constitutes a threat to global security, which might empower the SC to authorize use of force against States whose conduct contributes to this problem, although such interpretation remains controversial.39 The purpose of this chapter is not to present a comprehensive survey of global security threats that share points of similarity with terrorism but rather to highlight some of the key challenges in institutionalizing the implementation of SR beyond counterterrorism. It is to be hoped that the core analytical focus of this study on terrorism will provide lessons and best practices in tackling other global security breaches. Thus, the remainder of this chapter investigates some of the more problematic aspects of institutionalized implementation in respect of other global security violations. As a corollary, it identifies some of the shortcomings of UN organs in this framework.

2.4.1 Environmental degradation, global warming, and climate change

It must be emphasized that transnational terrorism is akin to the global security threat of climate change, thereby warranting a truly transnational and resolute response.40 At the very least, the legal struggle against terrorism calls for parallels to be drawn with transboundary pollution. Indeed, some studies addressing the role that SR can play in counterterrorism are replete with analogies extracted from the international environmental field, an exercise that proves helpful when attempting (p.50) to devise effective counterterrorism policies.41 The International Law Commission (ILC) itself has taken account of environmental challenges in its codification projects, not only in respect of SR for internationally wrongful acts but also in the context of its work on liability for injurious consequences arising out of acts not prohibited by international law.42 Unsurprisingly, legal scholars are increasingly registering their scholarly and interdisciplinary interests in devising workable prevention and containment models in respect of climate change. In such efforts, several commentators are turning to the benefits that may be derived from international law, generally, and the law governing SR specifically, to counteract climate change and global warming.43 Similarly, many publicists have merged terrorism and environmental concerns—especially global warming and climate change—into one, integrated legal inquiry.44 For example, in a widely discussed book, Richard Posner examined apocalyptic catastrophes ‘that threaten the survival of the human race’, thereby subsuming pandemics, nuclear fallout, terrorism, and irreversible environmental degradation under that rubric.45

If we are truly to analogize transnational terrorism to climate change, we must inevitably ponder whether SR repertoire is adequately suited to govern breaches of international law contributing to global warming and, correspondingly extend that rationale to counterterrorism. Certainly, this area of research is in full development, with scholars investigating the benefits that may be derived from SR law in tackling climate change, including under the Climate Change Regime.46 Whilst SR might appear to be the international legal regime best suited to address some aspects of global warming, its invocation inexorably runs up against the (p.51) problem of State consent. Hence, ‘while state responsibility may theoretically be a more effective instrument to address global warming damages, particularly from the point of view of small developing countries, there is little hope that all states would agree to be bound by a regime of state responsibility.’47 This concern can be easily transposed, at least upon first glance, to counterterrorism policy: many States, especially those that have weak counterterrorism structures, might not agree to sign on to a treaty embodying the disciplines of SR for failing to prevent transborder terrorism. However, this concern was considerably assuaged by post-9/11 SC resolution-making, which imposed categorical counterterrorism obligations upon all States.

It must be recalled that the extant scheme of SR constitutes the bare minimum, a sort of safety net in international relations: recalcitrant States may be hard-pressed to refute the customary character of the ‘international breach–attribution–legal consequences’ mechanism if they violate their obligation of prevention, be it related to counterterrorism or environmental protection. Furthermore, there is significant academic support for the idea that SR repertoire can be brought to bear upon the responses to global warming.48 Even in 1991, influential scholarly voices opined that ‘[i]‌nternational practice shows that the States have now accepted a general principle that they must answer for environmental harm caused by activities they have carried out or allowed within their own territory or by activities that are under their control.’49 In the more recent Pulp Mills Case, the ICJ echoed these observations and recognized the customary status of the duty to prevent transboundary environmental harm, linking it to States’ obligation of due diligence: ‘[a] State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.’50

(p.52) Despite these advances, considerable obstacles remain to making SR law a truly viable model to address climate change and related challenges. For one thing, climate change poses singular challenges in respect of international regulation. Consequently, careful attention has been paid to available policy options in enhancing the protection of the environment under specific international treaty regimes.51 Furthermore, the reality on the ground is that many States often choose to exclude the application of SR principles for environmental damage by signing on to particular conventional or liability regimes, presumably to sidestep diplomatic problems stemming from the application of SR and State-to-State adjudication.52 What is more, despite its centrality in international law, SR repertoire has not been resorted to in dealing with some of the most important environmental disasters of the last century.53 But even starting from the premise that SR repertoire can play a role in addressing environmental global security threats, there is every indication that the potential implementation of that normative scheme outside inter-State contexts would run against institutional obstacles.

As argued in Part II, the SC can play a role, sometimes determinant, in implementing SR in respect of transnational terrorism. However, it is doubtful whether the rationale underpinning that line of inquiry would carry over seamlessly to environmental protection. As one publicist underscores, ‘the Council is ill-prepared for new threats to international peace and security, in particular conflicts arising from environmental disasters, the scarcity of natural resources, including fresh water and grain, or large-scale migrations of people seeking a habitable climate’.54 That said, the SC made some advances on this front in the past, in particular when it implemented Iraq’s SR, declaring that Iraq was ‘liable under international law’ for ‘environmental damage and the depletion of natural resources … as a result of Iraq’s unlawful invasion and occupation of Kuwait’.55 In the same resolution, the Council created the UN Compensation Commission (UNCC) to deal with mass claims arising out of Iraq’s international responsibility, including in the environmental field. Indeed, the ILC’s Commentary to ARSIWA Article 36 points out that ‘[c]‌ompensation claims for pollution costs have been dealt with by UNCC’.56

(p.53) For its part, the ICJ has not dealt with many environmental disputes aside from the Pulp Mills case, although it is increasingly seized of disagreements involving environmental issues and the conservation of living resources.57 However, this UN organ remains significantly fettered by jurisdictional constraints, which are explored in Section 3.1.3.2 of this book. Besides, whilst, for instance, States have contracted conventional obligations to ensure that greenhouse gas emissions emanating from their soil do not engender transboundary harm, some of which are also mirrored in customary international law, there is a disconnect between contracted commitments and actual behaviour on the ground. In summary, States rather subscribe to a general attitude of ‘irresponsible treatment of the global commons’, which conflicts with their legal undertakings. The road to international litigation in addressing such problems, it is argued, is paved with considerable obstacles; even in the event that international litigation proves successful in tackling State-to-State environmental degradation, this avenue might adversely affect climate change (and other environmental) negotiations and dissuade States to enter into conventional environmental schemes in the first place.58

In many ways, SR law is ill-suited to tackle many of the global security threats related to the environment and protection/conservation of living resources. In a critical contribution, Catherine Redgwell astutely points out that SR repertoire constitutes the ‘wrong trousers’ in addressing violations of international environmental law before unfolding a comprehensive review of major obstacles to that prospect in various environmental sectors.59 A few of the key obstacles identified warrant mention: the nature of international environmental law and/or the climate change regime, along with intrinsic difficulties in seeking redress under SR repertoire;60 the existence of alternate avenues to the application of SR principles (p.54) and traditional dispute resolution, such as treaty-based compliance mechanisms;61 the deficient ‘one-size-fits-all’ of the ARSIWA; the sometimes unclear or imprecise content of primary international environmental legal obligations; the obstacles in attributing wrongful conduct to States in the environmental field; the challenges in identifying both responsible and injured States, especially when faced with the violation of obligations erga omnes; the characterization of harm and identification of the relevant threshold beyond which it becomes an internationally wrongful act;62 the impossibility of securing restitution, particularly as regards species extinction or global warming, which results in a disconnect between doctrinal endorsement of SR principles and State practice;63 the multilateral character of regulatory approaches concerning the climate change regime, as opposed to the bilateral character of compensation under SR;64 the fact that SR repertoire cannot supplant the need for systematic regulatory supervision on both regional and international levels;65 etc.

One of the most challenging problems in applying SR norms to environmental law violations is both factual and evidentiary and resides in the transnational nature of pollution and climate change. ARSIWA Article 47(1) provides that ‘where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act’.66 This provision was presumably adopted specifically to govern situations where an internationally wrongful act spans over several territories and, therefore, engages the responsibility of more than one State.67 Whilst there are some detractors to the idea that the principle of joint and several liability could be borrowed from the common law and civil law traditions and extended to this setting (ie if a handful of States are not responsible for the ‘same wrongful act’),68 this provision is undoubtedly relevant vis-à-vis both global warming and some instances of transnational terrorism. However, some commentators call into question the (p.55) adequacy of this provision ‘to address cases of gradual and cumulative pollution arising from numerous sources that are located in different States’; they add that ‘[t]‌his kind of pollution happens if natural elements, such as the sea, international rivers or the atmosphere are polluted by land-based sources’.69 Consequently, they argue that requiring an injured State to establish a causal connection between specific conduct and the resulting environmental damage would be patently unfair, given that ‘the contribution of every single source of pollution is extremely difficult to assess’.70

Given the manner in which Article 47(1) was drafted, SR law erects relatively few conceptual barriers to making every government involved in the chain of events accountable. Rather, the problem is one of evidence: how can the exact ‘wrongful act: ensuing/commensurate responsibility’ ratio be precisely ascertained for every single source of harmful activity, be it in the case of the emission of toxic pollutants or the toleration by a State of terrorist activity on its territory leading to transboundary harm? Indeed, leading environmental law publicists have long observed that in the context of compensation under SR, for instance, it is exceedingly difficult to establish a causal nexus between the wrongful act and the harm caused as the ‘normal’ consequences of that unlawful activity.71 The answer to these questions will obviously depend on a careful analysis of every case of transnational harm that arises. Furthermore, a delicate balance should be struck between vindicating specific policy objectives underlying global security and international law and justice more generally, and enhancing transnational cooperation on both SR issues and global security efforts.

Therefore, SR principles can play some role in the prevention of global warming and other environmental threats, although a severely limited one. The key point, however, is that it can play some role, however small it may be. Surely, analogies can be drawn from global warming in order to identify potential deterrence and prevention models for counterterrorism, yet whilst global warming is—as would-be detractors of invoking SR to fight terrorism might argue—a highly de-territorialized and decentralized phenomenon, compelling arguments nonetheless militate in favour of engaging that normative scheme. Surely, invoking a State-centric legal regime to combat a transnational problem is only part of the equation; the role of States in preventing/failing to prevent global security violations must be assessed on its own merits, alongside the participation (p.56) of actual terrorists, other non-State actors (eg international civil society, the media),72 informal and implicit networks of governance, etc, in the grander scheme of transnational activity. What is certain is that there is an increasing interest, indeed need, in developing a coherent international legal regime to address transnational pollution and environmental degradation.73 What is less certain is whether institutional actors—particularly UN organs as explored in Part II of this book—would be sufficiently equipped to oversee effective implementation of SR for environmental breaches; this is especially true given the normative paucity of some primary obligations and the relative uncertainty surrounding applicable legal standards.

Thus, the potential implementation of SR must be pursued in tandem with transnational cooperation and enhanced multilateralism on global security initiatives. One commentator had embodied this impetus in 1989, observing that although ‘the principles [of SR] and liability for harm provide a useful starting point for dealing with the issue of global warming … international cooperation will provide a more effective solution’.74 Ultimately, the interpretation and application of relevant legal norms will be shaped by the ways in which both States and institutional actors internalize the risks posed by transnational pollution, terrorism, and other global security threats. As such, this very notion of ‘risk’ is analysed briefly in the next section.

2.4.2 Risk assessment and precautionary approaches

Undoubtedly, the prospect of applying SR principles effectively to global security violations constitutes an exercise in risk assessment and management. In the environmental sector and in respect of the global commons, there is renewed interest in international legal questions pertaining to international responsibility, risk, and liability.75 The international community is imposing a heavier burden of precaution upon States in complying with their counterterrorism obligations; similar advances have been made in other cognate fields such as environmental law. With this in mind, Part II of this book attempts to carve out a role for UN organs in implementing international responsibility models. However, the main policy thrust of any effective institutionalization of SR must be articulated around the vital notion of prevention, a concept highly reconcilable with a precautionary approach to the assessment of risk. Therefore, when further exploring the role of SR repertoire in preventing and suppressing global security violations, inspiration (p.57) could be drawn from the precautionary principle, a concept well developed in the field of international environmental law.

Certain scholars infer that both prevention and precaution operate symbiotically.76 Similarly, ICJ Judge Mohamed Bennouna emphasized that the obligation of prevention is bolstered by the precautionary principle, which is destined to palliate the scientific uncertainty inherent in certain industrial projects and their impact on the environment or the health of populations.77 In one global security context, the cost–benefit analysis will hinge, to a large extent, on whether States sufficiently internalize the risk of terrorist activity emanating from their territory to divert and inject funds into counterterrorism policy, so as to avoid international responsibility. In short, a delicate balancing act between compliance/State consent and self-interest/sovereign prerogatives must be struck; that is not to say, however, that by diverting funds to combat terrorism within its territory, a State will only be sacrificing sovereignty over compliance with its obligations. Quite to the contrary, a compelling case can be made that compliance with counterterrorism obligations is not only beneficial for States within the immediate geographical radius of the would-be territorial State but also for the international community at large. These mutual interests therefore translate into a shared understanding that combating terrorism can promote political stability and human security on both a regional and global basis.78 Similar reasoning could extend to other global security challenges.

Aside from extrapolating the benefits of SR law for counterterrorism, it is imperative to recall that any policy ultimately implemented by States will depend on their perception of the risks involved. Thus, the costs of actually shifting policy infrastructures and diverting funds to counterterrorism measures in the low or unlikely probability that the risk of a terrorist strike might materialize weighs in the balance when making cost-sensitive policy decisions. Conversely, the prospect of incurring international responsibility—and having to compensate the victim-State for failing to prevent terrorism or some other global security breach—also amounts to a (potentially significant) cost in the analysis, irrespective of the fact that a terrorist risk can seldom be assessed a priori or even quantified with any degree of precision. In a widely discussed book, Cass Sunstein echoed this position regarding terrorism and global warming: ‘[i]‌n the context of terrorist threats, it makes sense to adopt a kind of Precautionary Principle against dangers whose probability cannot be assessed but that would be devastating if they materialized. In the context of global warming, the risk of catastrophe, if it cannot be ruled out as insignificant, might similarly justify costly precautions’.79

(p.58) Thus, the implementation of obligations of prevention is largely informed by the risks incurred, as perceived by the would-be responsible State, by virtue of available information and knowledge at its disposal. The ICJ’s reasoning in the Bosnian Genocide case bolsters this proposition, albeit in the context of the obligation to prevent genocide.80 Indeed, the Court opined that

a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way; for it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.81

Conversely, the precautionary principle nonetheless applies in the event that the risk cannot be ascertained or established by virtue of the lacuna of information or knowledge on the impact of the risk-generating activities.82 Whilst this principle is usually associated with new and relatively unknown fields of activity, there is no reason to preclude transnational terrorism (or other global security threats) from its purview. In summary, it amounts to a politico-moral principle that shifts the burden of justification onto the party wanting to adopt a behaviour that could engender serious or irreversible damage to the public order or the environment, absent any dispositive scientific consensus justifying the proposed measure or behaviour.83 Whilst scientific uncertainty remains the analytical linchpin under the precautionary principle, the transplantation of that approach to global security contexts is nonetheless particularly apt. For example, weighing the potential policy benefits of the precautionary principle seems logical given that its rationale may be extended, with few conceptual barriers, to the factual uncertainty surrounding the formulation of legal responses to transnational terrorism.

The idea of precaution and its relation to the perception of risk is also mirrored in domestic settings. For instance, attention was drawn to the fact that the costs of insurance against terrorist threats in the context of landowner liability are more acute, precisely because of this perception of risk-to-factual-uncertainty ratio.84 Similarly, the impact of the precautionary principle can be best illustrated by connecting people’s reaction or perception of risk to a ‘visualization’ or ‘imagery’ of (p.59) the risk involved.85 It follows that in the event that the visualization of a negative result is attainable (eg terrorist strike), that image will arouse anxiety about that risk and, correspondingly, propel precautionary considerations to the fore of the decision-making process.86 A salient example can be extracted from flight insurance scenarios: when asked how much they are willing to disburse for ‘terrorism’ flight insurance, customers are invariably inclined to pay more than for insurance covering losses resulting from all causes.87 As Sunstein explains, ‘[t]‌he evident explanation for this peculiar result is that the word “terrorism” evokes vivid images of disaster, thus crowding out probability judgments’.88 When transposed to SR law—itself envisaged as a sort of insurance policy tailored to safeguard common/collective interests (ie protection against terrorism and other global security threats)—the precautionary principle might compel governments to: (i) act and prevent terrorism before an over-imposing threat has materialized or; (ii) act after the fact or in reaction to a completed terrorist attack so as to prevent future excursions (ie similarly to the way in which precaution militates in favour of regulation in the environmental field, even if no scientific consensus convincingly supports the adoption of the measure). This application of the principle seems congruent with the idea of shifting good global security incentives to governments advocated throughout this book.

However, the potential contributions of the precautionary principle cannot be overstated. International institutions, individual States, and the international community are all likely to overdramatize—or ‘over-visualize’ to invoke previous parlance—the perceived risk and, as a result, are prone to overreaction.89 Otherwise put, the process of devising an effective institutionalized scheme of State accountability for global security violations should gauge the role of other important and competing interests in the equation (eg respecting human rights when instituting measures to suppress terrorism). Invoking the precautionary principle in this setting is also impeded by the fact that virtually all international jurisdictions routinely refuse to classify it as a rule of customary law, be they the ICJ,90 the World Trade Organization’s Dispute Settlement Body,91 the (p.60) International Tribunal for the Law of the Sea (ITLOS),92 and various arbitral tribunals.93 In the Pulp Mills case, the ICJ did not address the precautionary principle except to underscore that ‘a precautionary approach’ might have been ‘relevant in the interpretation and application of the provisions’ of the contentious instrument between the parties, but did not operate ‘as a reversal of the burden of proof’.94 The Court’s silence on this front was pointed out, with varying degrees of admonishment, by some judges writing separately.95 Furthermore, the normative status of the precautionary principle under international law has been rather divisive in scholarship, with some calling for the acknowledgment of its customary character,96 and others rejecting it flat out.97 However, the relevance of precautionary approaches is increasingly prominent in both legal scholarship and international adjudication, as courts and tribunals are called upon to handle (p.61) science-heavy and factually complex disputes, some of which have a direct connection with global security.98

The confusion surrounding the normative status of the precautionary principle is further exacerbated by the uncertainty surrounding its actual contents and contours. In fact, no consensus has been reached on both the substance and scope of this principle. Twenty years ago, Sands rightly underscored that ‘[t]‌here [was] no uniform understanding of the meaning of the precautionary principle among States and other members of the international community’.99 That said, despite the fact that in the 1990s authors cast it as an ‘elusive concept’100 or similarly concluded that it was ‘not a term of art’,101 the precautionary principle now comprises a conceptual core that may facilitate its application irrespective of its uncertain legal status. After all, ‘terrorism’, whilst not universally defined,102 is understood broadly enough to generate studies, national and international regulation, SC and General Assembly (GA) resolutions, and political and judicial decisions (granted, of course, that unlike the precautionary approach, terrorism is not a legal principle but a method or tactic). Despite the judicial vacuum as to its customary character, the precautionary principle nevertheless underpins the formulation of various national, international, and regional legal policies.103

For instance, it has been consecrated as a general and mandatory principle of law under EU structures. Furthermore, it has also been enshrined in several international instruments on environmental matters, most notably in Principle 15 of the Rio Declaration on Environment and Development,104 the Vienna Convention for the Protection of the Ozone Layer,105 the 1990 Bergen Ministerial (p.62) Declaration on Sustainable Development,106 the Convention on the Protection and Use of Transboundary Watercourses and International Lakes,107 the 1992 Convention on Biological Diversity,108 and the 1992 UN Framework Convention on Climate Change.109 Similarly, the Commentary to Article 10(c) of the ILC’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities consecrates the precautionary principle, noting that concerned States take several factors into consideration when adopting preventive measures, including ‘the risk of significant harm to the environment and the availability of means of preventing such harm, or minimizing the risk thereof and the possibility or restoring the environment’.110

In sum, the precautionary principle can be brought to bear on the future development of SR law in relation to global security challenges, subject to the abovementioned caveats. Whilst the principle needs further elaboration and has yet to attain the status of a binding international obligation,111 it may nevertheless come to guide the action of UN organs when confronted with global security breaches. The pivotal element thus lies in the fact that the lack of scientific evidence or knowledge should not impede the prospect of adopting certain measures aimed (p.63) at counteracting activities that may engender serious or irreversible effects. When transposed to the specific context of counterterrorism, the notion of an informational lacuna readily translates into the lack of knowledge; knowledge about imminent terrorist attacks, terrorist activity taking place on a State’s territory, funding/fundraising of terrorist organizations taking place on that territory, etc. Therefore, it may well be that a precautionary approach also informs the institutionalized implementation of SR by UN organs. In fact, this is one possible rationale behind the SC’s implementation of Libya’s responsibility in the Lockerbie case; by insisting that Libya cease its support of terrorism and attributing the bombings to that State in the face of some factual uncertainty, the Council attempted to prevent further attacks from being carried out (ie by imposing a higher burden of precaution on Libya).112

Therefore, the potential contributions of the precautionary principle in the field of global security are numerous, not least at the level of primary international legal norms. Because of its conceptual core identified earlier, this principle could act as a substantive foundation for the further development of customary law.113 Yet, similarly to many other relevant analogies, the invocation of the precautionary principle in global security contexts might trigger evidentiary challenges (paradoxically, in the case of the precautionary principle, scientific proof/evidence cannot serve as an obstacle when vindicating specific policy objectives, provided its application is ultimately accepted). Given the ICJ’s resistance to recognizing the customary status of the precautionary principle, it remains to be seen how it will evolve in the coming years. However, one must register some scepticism about the SC drawing inspiration from that approach, given that this organ appears particularly ill-suited to tackle all present-day, non-military threats. Conversely, for reasons explored earlier, well-calibrated precautionary sensibilities could inform both the formulation of primary legal norms and implementation of SR in other areas, such as counterterrorism and non-proliferation.

2.4.3 Ungoverned spaces and territories

Many global security challenges canvassed in the present volume depend on ungoverned spaces and territories as propitious incubators. Whilst dominant models of transnational terrorism can seldom be dissociated from territorial solace or from some kind of governmental toleration or acquiescence,114 there is (p.64) something to be said about taking the territorial component out of the equation when crafting potential legal responses. The growing phenomenon of ‘home-grown’ terrorists aside,115 operating within ‘ungoverned spaces’, or unmonitored areas, constitutes an increasingly attractive option for terrorist networks in preparing and executing their attacks. Recent manifestations of this practice by ISIL and Al-Shabaab have been witnessed in parts of the Middle East and Somalia. Unsurprisingly, ‘[a]‌s sovereignty erodes and it becomes harder to control borders, Black Holes, the ungoverned spaces, become breeding grounds for all forms of illicit commodities and provide succor for international terrorism’.116 Unquestionably, some instances of terrorism move towards a more de-territorialized or decentralized model, thereby seemingly weakening the points of rapprochement with SR repertoire. Many terrorist networks prey on inefficient or wilfully blind governments or seek refuge in sanctuary States endowed with weak or ineffective counterterrorism structures. In such scenarios, when enforcing international law the SC has no choice but to espouse a comprehensive strategy—which it has done when dealing with ISIL and other terrorist networks—in which the duty of States to exercise their sovereignty responsibly is part of a broader counterterrorism mosaic.117

This opportunism is further exacerbated in cases of ‘failed’, ineffective, or government-less States, such as Iraq, Lebanon, Somalia, Sudan, Syria, Yemen, or certain areas of sub-Saharan Africa, a reality that was canvassed thoroughly elsewhere.118 Consequently, in recent years there has been renewed emphasis in both national and international (pre-emptive and reactive) policy-making on the notion of ‘ungoverned spaces’.119 It must be underscored that ‘[t]‌he continuing problem is that ungoverned spaces will be filled by chaos [eg terrorist networks] because frayed, faux, and failed states lack the capacity to monopolize (p.65) power’.120 Although not directly apropos, a principal concern originally voiced over Kosovo in different circles was that it had the propensity to become a rump Islamist state.121 Similarly, in the US the African command of the Pentagon was set up because of similar situations, most notably in Somalia and Ethiopia; the policy focus therefore shifted to ungoverned spaces in States that were not formally at war with the US.122 Therefore, there is increasing policy emphasis on the link between ungoverned spaces and issues of transnational crime and law enforcement, which pose considerable challenges for global security.123 As will be seen, UN organs will have to grapple with this reality when implementing SR. Suffice it to say that SR principles—particularly attribution standards, at least in their current formulation—prove exceedingly difficult to apply to global security breaches that have tenuous or virtually non-existent territorial connections with any States.124

Other de-territorialized security challenges may fall within the purview of institutionalized implementation of SR by UN organs. The problem of international piracy constitutes an example par excellence of such practice, which has been acute off the coast of Somalia (particularly in the Gulf of Aden and Arabian Sea), in the Straits of Malacca, in the Gulf of Guinea, and on Falcon Lake on the US–Mexico border.125 Whilst State-to-State recourses under SR repertoire may be limited in repressing this global security threat, the SC nonetheless has a leading role to play in repressing and preventing this practice.126 There is no need to exclude the potential application of SR principles by that organ; in fact, as will be seen in Part II of this volume, the broad range of enforcement means available to it might in fact include resort to secondary SR norms to implement the international responsibility of States that fail to comply with counter-piracy obligations. Indeed, States like Somalia must be seen as deploying best efforts—no matter (p.66) how limited—in addressing piracy in their geographical vicinity, subject to the eventual invocation of their international responsibility if they fail to do so.127 Aside from the potential contributions of UN organs, it must be stressed that regional bodies such as the Organization of African Unity, African Union, Arab League, and the Association of Southeast Asian Nations (ASEAN) must play a proactive role in developing counter-piracy and counterterrorism strategies.

Finally, picking up on the thread explored earlier in Section 2.4.1, the increasing practice of space exploration and related activities have brought the relevance of SR frameworks to the fore. Indeed, there is a growing number of States developing outer-space programmes and engaging in space activities, which has implications for global security and remains intertwined with the issue of environmental degradation. As a result of this ‘rush to space’, many outer-space activities are generating space debris, which in turn can engender significant transboundary damage. Whilst the international legal frameworks and instruments that may be brought to bear on the SR calculus for space activities have been discussed elsewhere,128 it is also posited that the legal regime governing such activities, and the treatment of space debris specifically, is outdated.129 Similarly to other de-territorialized global security challenges, the nature of many space activities might obfuscate the straightforward application of SR principles, particularly attribution standards, although those concerns have been partly alleviated by integrating ‘objective’ and/or ‘strict’ liability models in certain international instruments.

2.4.4 Cyberterrorism

In terms of de-territorialized security threats, modern technology also provides terrorists and criminals with increased means and methods of inspiring fear and carrying out virtual attacks. This reality had been acknowledged before 9/11.130 Consequently, there is a growing body of literature dealing with the relationship between cyberterrorism and SR repertoire: at this stage, there appear to be more questions than answers, with interlocutors attempting to circumscribe applicable legal frameworks better than formerly.131 Unsurprisingly, cyberterrorism and (p.67) cybercrime, more broadly, pose considerable challenges to the application of traditional SR norms, particularly attribution standards.132 For instance, if an individual or organization sets up a website promoting terrorism under the auspices of an Internet service provider located in a specific State, can that State’s responsibility be engaged under the prevailing primary rules of ‘harbouring’ and ‘supporting’ terrorist activity? Terrorist networks such as ISIL and Al-Shabaab are increasingly using Internet technology, including social networks, for multiple purposes such as radicalization, recruitment, fundraising, operational planning, training, and public relations. Certainly, failing to prevent such activities, when the State(s) in whose territory they take place have the ability to contain them, might have implications for SR law and signal the violation of different preventive counterterrorism obligations.

As will be seen later,133 the ‘cyber’ dimension of transnational subversive activity not only impedes the application of SR norms but also propels the regime interaction between SR law and use of force repertoire (particularly self-defence) to the fore. Consequently, increasing scholarly emphasis is placed on armed conflict in virtual settings134 and self-defence in response to cyber-attacks.135 As a corollary, the ‘virtual battlefield’ and its legal implications have attracted considerable attention, with international legal scholars of all stripes tackling SR issues, be they linked to attribution, countermeasures, due diligence, sovereignty, obligations, or self-defence.136 Similarly, domestic law scholars have begun to explore (p.68) the links between cyberterrorism and SR, specifically, with a view to identifying viable legal regimes to suppress or repress such activity.137

A most salient example of cyberterrorism occurred in 2007 when irregulars launched a series of ‘distributed denial of service’ attacks (DDOS attacks) primarily from Russia on Estonian targets. Among other things, the attacks incapacitated the online portal of Estonia’s largest bank, resulting in financial losses exceeding US$1 million in a single day.138 Whilst previous recorded instances of cyberwar had occurred in the context of international armed conflicts, such as the 2008 conflict between Russia and Georgia over South Ossetia, virtual subversion is taking place in the internal armed conflict in Iraq; online hostilities include computer hacking for intelligence gathering, malware operations to subvert and secure remote control over hostile computer networks, sending booby-trapped email messages, and terrorizing the civilian population through social networks.139 Given the inadequacy of current legal standards, some advocate the implementation of strict liability models according to which large-scale cyberattacks would be automatically or directly imputed to the State from which the activity was authored.140 Focusing on the intersection of SR and use of force repertoire, others suggest that any computer attack authored by non-State actors engendering harm akin to that of a military attack should be characterized as an ‘armed attack’; thus, ‘[i]‌mmediate destruction of life is not a prerequisite’.141 Whilst this eventuality had been recognized prior to 9/11, the legal discourse pertaining to legal frameworks governing wrongful acts occurring in cyberspace is in (p.69) a state of flux, and relevant State practice is relatively unknown.142 International policy and legal communities have attempted to fill that void.

In 2013, high-level consultations of policy and legal experts culminated in the Tallinn Manual, which sought to articulate the legal frameworks applicable to cyber warfare with particular emphasis on virtual ‘armed attacks’.143 A second edition, Tallinn 2.0, is currently being prepared and scheduled to be published in 2016; it will address online activity falling short of the threshold of ‘armed attack’, with some emphasis on SR principles.144 However, some publicists rightly lament the Tallinn Manual’s extension of the ARSIWA’s attribution norms to the cyber realm, which is characterized by ‘attribution asymmetry’, thereby hardening the narrow approach to attribution and enabling States to use private groups to ‘engineer plausible deniability’. A ‘virtual control test’, they contend, would be better suited to cyberterrorism than classical attribution standards.145

Considerable confusion still surrounds applicable legal norms, particularly attribution standards, in virtual settings. For example, seizing relevant Internet Protocol addresses following an online attack can prove unreliable as a basis for attributing virtual wrongful conduct to a ‘territorial’ State, as online technology is increasingly used by both States and non-State actors to pursue subterfuges, create avatars, control subversive proxies, perpetrate criminal activity, and conceal the origin and authorship of certain acts.146 Whilst it is possible that UN organs, particularly the SC, will be called upon to handle situations involving cyberterrorism/ (p.70) crime in a global security context, they may lack the benefit of clear legal postulates to govern the implementation of SR for the foreseeable future.

For the time being, UN organs have been pursuing a logical strategy: extending ‘terrestrial’ legal sensibilities to the ‘virtual battlefield’, suggesting that virtual internationally wrongful acts are similar to their physical analogues save that they are committed using novel technology, and promulgating broad statements and guidelines on cyberterrorism.147 Unquestionably, relevant legal standards will have to be revisited and adapted to cyberterrorism to ensure resolute responses to this security challenge. For its part, the SC has adopted resolutions imposing upon States the obligation to criminalize the incitement to terrorism and other related acts, which include online radicalization, fundraising, operational planning, training, and promotion of terrorist enterprises.148 Therefore, as will be seen in other global security contexts in Part II of this book, it has formulated primary international legal norms; it is only logical that it might eventually be seized of a matter in which it actually has to implement those norms under SR law. Similarly, in Resolution 1963 the Council expressed ‘concern at the increased use, in a globalized society, by terrorists of new information and communication technologies, in particular the Internet, for the purposes of the recruitment and incitement as well as for the financing, planning and preparation of their activities’.149 Furthermore, SC involvement in counterterrorism strategies, aside from those which will be explored in Part II of the present volume, has been active through the Working Group on Countering the Use of the Internet for Terrorist Purposes, which is part of the Counter-Terrorism Implementation Task Force (CTITF).150

Finally, the phenomena of cybercrime and cyberterrorism present significant points of similarity with climate change and global warming in that a series of internationally wrongful acts can span over several States and ultimately facilitate the commission of a terrorist act; similarly to transboundary pollution, the exact sources or causes of a given attack—which may be gradual and cumulative—might be difficult to ascertain.151 Hence, the challenge does not reside at the conceptual level, but rather arises in the factual and evidentiary components of the SR calculus.

(p.71) This type of situation challenges the core of the ARSIWA as it is unclear what will constitute the crystallizing moment for the purpose of apportioning liability when several preparatory terrorist acts—be they virtual or physical—span over more than one territory. As seen earlier, ARSIWA Article 47(1) provides one possible solution, at least in theory.152 As a general rule, it is fair to assume that every State’s international responsibility in a chain of failures to prevent, leading to a transnational terrorist attack, might be commensurate with its level of accommodation or support of the harmful activity.153 Moreover, there appears to be jurisprudential support for assessing each participating State’s responsibility independently pursuant to ARSIWA Article 47(1). For instance, in the Phosphate Lands in Nauru case the ICJ found that Australia’s responsibility could be assessed individually, even though both New Zealand and the UK also administered Nauru whilst it was a trust territory.154 However, implementing this approach in practice might prove difficult, especially when enforcement of relevant norms is envisaged through UN political organs, which may not dispose of sophisticated or sufficiently exhaustive fact-finding mechanisms. (p.72)

Notes:

(1) See ME O’Connell, ‘Enhancing the Status of Non-State Actors through a Global War on Terror?’ (2005) 43 CJTL 435. Even today, some transnational terrorist groups carry out large-scale attacks such as exploding aircrafts. For example, on 31 October 2015 Islamic State of Iraq and the Levant (ISIL) militants destroyed a Russian airliner over the Sinai desert. See, eg, G Topham et al., ‘Egypt Plane Crash: Russia Says Jet Was Bombed in Terror Attack’ The Guardian (London, 17 November 2015). This incident was condemned and ultimately attributed to ISIL by the UN Security Council (SC). See UNSC Res 2249 (20 November 2015) UN Doc S/RES/2249 [1]‌ (also lamenting recent attacks carried out in Sousse, Ankara, Beirut, and Paris). On the role of SR in addressing the conduct of non-State actors, see C Ryngaert, ‘State Responsibility and Non-State Actors’ in M Noortmann et al. (eds), Non-State Actors in International Law (Hart 2015) 163.

(2) See generally R Spaaij and MS Hamm, ‘Key Issues and Research Agendas in Lone Wolf Terrorism’ (2015) 38 SCT 167; J McCoy and WA Knight, ‘Homegrown Terrorism in Canada: Local Patterns, Global Trends’ (2015) 38 SCT 253; H Fenwick, ‘Redefining the Role of TPIMs in Combating “Home-Grown” Terrorism within the Widening Counter-Terror Framework’ (2015) 1 European Human Rights Law Review 41; M Becker ‘Explaining Lone Wolf Target Selection in the United States’ (2014) 37 SCT 959; C Appleton, ‘Lone Wolf Terrorism in Norway’ (2014) The International Journal of Human Rights 127; R Spaaij, Understanding Lone Wolf Terrorism: Global Patterns, Motivations and Prevention (Springer 2012); SM Kleinmann, ‘Radicalization of Homegrown Sunni Militants in the United States: Comparing Converts and Non-converts’ (2012) 35 SCT 278; K Coffey, ‘The Lone Wolf–Solo Terrorism and the Challenge of Preventative Prosecution’ (2011) 7 FIU Law Review 1; R Spaaij, ‘The Enigma of Lone Wolf Terrorism: An Assessment’ (2010) 33 SCT 845.

(3) See P Cockburn, The Jihadis Return: ISIS and the New Sunni Uprising (OR Books 2014); JA Sekulow et al., Rise of ISIS: A Threat we Can’t Ignore (Howard Books 2014); V Cheterian, ‘ISIS and the Killing Fields of the Middle East’ (2015) 57 Global Politics and Strategy 105; D Holbrook, ‘Al-Qaeda and the Rise of ISIS’ (2015) 57 Global Politics and Strategy 93; I Kfir, ‘Social Identity Group and Human (In)Security: The Case of the Islamic State in Iraq and the Levant (ISIL)’ (2015) 38 SCT 233; G Stansfield, ‘The Islamic State, the Kurdistan Region and the Future of Iraq: Assessing UK Policy Options’ (2014) 90 International Affairs 1329.

(4) See, eg, AK Cronin, ‘ISIS Is Not a Terrorist Group: Why Counterterrorism Won’t Stop the Latest Jihadist Threat’ (2015) 2 FA 87.

(5) See, eg, MR Gordon and E Schmitt, ‘Coalition Debates Expanding ISIS Fight’ NYT (New York, 30 April 2015) A11.

(6) Although other sources also ground this obligation, it can be derived from the Trail Smelter Case (USA v Canada) (1941) 3 RIAA 1905; Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4, 22. For a pre-UN Charter formulation of this duty, see also C Eagleton, The Responsibility of States in International Law (NYU Press 1928) 80. For a fuller discussion, see also V-J Proulx, Transnational Terrorism and State Accountability: A New Theory of Prevention (Hart 2012) 18–30.

(7) See, eg, J-M Sorel, ‘Some Questions About the Definition of Terrorism and the Fight against Its Financing’ (2003) 14 EJIL 365.

(8) See generally DF Vagts, ‘Which Courts Should Try Persons Accused of Terrorism?’ (2003) 14 EJIL 313.

(9) See, eg, MC Bassiouni, ‘International Terrorism’ in idem (ed.), International Terrorism and Political Crimes (Charles C Thomas 1975) 500–93; WA Kerstetter, ‘Practical Problems of Law Enforcement’ in AE Evans and JF Murphy (eds), Legal Aspects of International Terrorism (Heath 1978) 535–49; JF Murphy, ‘Legal Controls and the Deterrence of Terrorism: Performance and Prospects’ (1982) 13 Rutgers Law Journal 465, 477. The prescriptions of Resolution 1373 also include a prohibition on providing protection to terrorists. See WP Hoye, ‘Fighting Fire with … Mire? Civil Remedies and the New War on State-Sponsored Terrorism’ (2002) 12 Duke Journal of Comparative & International Law 105, 106.

(10) J-C Martin, Les Règles Internationales Relatives à la Lutte contre le Terrorisme (Bruylant 2006) 457. Calling into question whether ‘control’ over non-State actors, which underpins attribution logic in the ARSIWA, remains an appropriate standard to gauge governmental toleration and/or passive support of terrorists, some ponder whether every State now has a duty to warn other potentially affected States if it ‘possesses information about the existence of a terrorist cell on its territory without having sufficient proof for legal action against its members but suspects that the cell is part of a network which targets other States and uses the territory as an operational base’. See K Zemanek, ‘Does the Prospect of Incurring Responsibility Improve the Observance of International Law’ in M Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (Brill 2005) 125, 131.

(11) See also RP Barnidge, Jr, Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principle (TMC Asser Press 2008) 145–6 fn 44; CM Henderson, ‘Michael Byers, War Law: International Law and Armed Conflict’ (2007) 12 JCSL 150, 152–3. On the notions of ‘sponsorship’ and ‘support’ of terrorism, see SC Malzahn, ‘State Sponsorship and Support of International Terrorism: Customary Norms of State Responsibility’ (2002) 26 Hastings International and Comparative Law Review 83.

(12) A Cassese, ‘The International Community’s “Legal” Responses to Terrorism’ (1989) 38 ICLQ 589, 597.

(13) Cassese (n 12) 598.

(14) Compare with the respective typologies suggested by the following authors: JA Cohan, ‘Formulation of a State’s Response to Terrorism and State-sponsored Terrorism’ (2002) 14 Pace International Law Review 77, 90–2; Martin (n 10) 457–8; N Lubell, Extraterritorial Use of Force against Non-State Actors (OUP 2010) 36–8; Proulx (n 6) 34–50; G Guillaume, ‘Terrorisme et Droit International’ (1989) 215 RdC 287, 396.

(15) Consider G Battaglini, ‘War against Terrorism Extra Moenia, Self-Defence and Responsibility: A Pure Juridical Approach’ in Ragazzi (n 10) 139.

(16) On this specific question vis-à-vis terrorist organizations, see P-M Dupuy, ‘State Sponsors of Terrorism: Issues of International Responsibility’ in A Bianchi (ed.), Enforcing International Law Norms against Terrorism (Hart 2004) 3, 6–7. Some commentators expounded that the US could not wage war against members of Al-Qaeda. See, eg, JJ Paust, ‘War and Enemy Status After 9/11: Attacks on the Laws of War’ (2003) 28 YJIL 325, 326 and ‘Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions’ (2004) 79 Notre Dame Law Review 1335, 1344. Incidentally, the validity of the traditional view that only sovereign States can be targeted in self-defence against terrorism is explored in Chapter 6.

(17) See, eg, S Wiessner, ‘The Articles on State Responsibility and Contemporary International Law’ in KK Koufa (ed.), Thesaurus Acroasium Vol 34: State Responsibility and the Individual (Sakkoulas 2006) 246, 260. Compare WH Taft IV and TF Buchwald, ‘Agora: Future Implications of the Iraq Conflict: Preemption, Iraq, and International Law’ (2003) 97 AJIL 557. See also WM Reisman, ‘Assessing Claims to Revise the Laws of War’ (2003) 97 AJIL 82.

(18) Wiessner (n 17) 260.

(19) See also Section 1.3. Moreover, certain types of terrorism, particularly cyberterrorism, may further obfuscate evidentiary standards and erect obstacles to the successful establishment of SR in respect of virtual wrongful conduct. See generally M Roscini, ‘Evidentiary Issues in International Disputes Related to State Responsibility for Cyber Operations’ (2015) 50 Texas International Law Journal 233.

(20) International Law Association, ‘Report of the Paris Reunion’ (1984) 168–9, cited in E McWhinney, The September 11 Terrorist Attacks and the Invasion of Iraq in Contemporary International Law: Opinions and the Emerging New World Order System (Nijhoff 2004) 29.

(21) For a review of relevant State and institutional practice, see generally Proulx (n 6) esp ch 2.

(22) TM Franck, Recourse to Force: State Action Against Threats and Armed Attacks (CUP 2002) 54. This phenomenon had somewhat been recognized before 9/11. See, eg, MB Baker, ‘Terrorism and the Inherent Right of Self-Defense (A Call to Amend Article 51 of the United Nations Charter)’ (1987) 10 HJIL 25, 40. See also RJ Beck and AC Arend, ‘“Don’t Tread on Us”: International Law and Forcible State Responses to Terrorism’ (1994) 12 Wisconsin International Law Journal 153; WA O’Brien, ‘Reprisals, Deterrence and Self-Defense in Counter Terror Operations’ (1990) 30 VJIL 421; O Schachter, ‘The Extraterritorial Use of Force Against Terrorist Bases’ (1989) 11 HJIL 309; O Schachter, ‘The Lawful Use of Force by a State against Terrorists in Another Country’ in HH Han (ed.), Terrorism & Political Violence: Limits & Possibilities of Legal Control (Oceana 1993) 241–66.

(23) But see I Brownlie, System of the Law of Nations: State Responsibility (Part I) (Clarendon Press 1983) 375 (stressing that both regimes should not be conflated).

(24) Armed Activities on the Territory of the Congo (DRC v Uganda) (Merits) [2005] ICJ Rep 168, 219–21 [131]–[136], 222–3 [146]–[147]. See also TM Franck, ‘On Proportionality of Countermeasures in International Law’ (2008) 102 AJIL 715, 722 (observing that the majority ‘could have replaced the question of attribution with a finding of liability of states for injurious effects emanating from their territory and affecting the rights of neighboring states’). On the treatment of self-defence in that case, see SA Barbour and ZA Salzman, ‘“The Tangled Web”: The Right of Self-Defense against Non-State Actors in the Armed Activities Case’ (2008) 40 NYUJILP 53. See also Section 6.2.3 of this book.

(25) Several accounts concede that a State allowing its territory to become a launch pad for terrorism may forfeit its right to sovereignty in various contexts and, correspondingly, is entitled to solicit outside intervention to neutralize the threat. See Baker (n 22) 40; PS Rao, ‘International Crimes and State Responsibility’ in M Ragazzi (n 10) 68. See also M Byers, ‘Letting the Exception Prove the Rule’ (2003) 17 Ethics and International Affairs <http://vlex.com/vid/letting-the-exception-prove-rule-53214923> accessed 10 August 2015. It should also be reiterated that ‘Security Council resolutions post September 11, asserted a duty on UN member states to deny safe haven to terrorists and to bring them to justice’. See H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP 2005) 493. As a corollary, Resolution 1373 may actually enable States to use defensive force against non-State actors on a theory of ‘indirect attribution’, should the territorial State be unable to contain or repress the terrorist threat. See Section 4.2.1, this book. On related issues, see RL Johnstone, ‘State Responsibility: A Concerto for Court, Council and Committee’ (2008) 37 Denver Journal of International Law and Policy 63.

(26) See, eg, Martin (n 10) 493.

(27) See, eg, GW Bush, ‘Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11’ in ‘America’s Ordeal: “Our Grief Has Turned to Anger”’ Newsday (Melville, 21 September 2002) A2; T Blair, ‘Why Saddam Is Still a Threat to Britain’ Daily Express (London, 6 March 2002) 12; J Sullivan, ‘Why War Against Terrorism Is Justified’ Financial Gazette (Harare, 1 November 2001).

(28) See, eg, SE Smith, ‘International Law: Blaming Big Brother: Holding States Accountable for the Devastation of Terrorism’ (2003) 56 Oklahoma Law Review 735, 736.

(29) See, eg, J Diamond, ‘Powell Sets Terms for a New Regime’ Chicago Tribune (Chicago, 25 October 2011) 6; US National Security Council, The National Security Strategy of the United States of America (17 September 2002) <www.state.gov/documents/organization/63562.pdf> accessed 30 April 2015, 6, 13–16; JM Vogelson, ‘Multinational Approaches to Eradicating International Terrorism’ (2002) 36 International Lawyer 67, 70. But see M Levitt, ‘Patterns of Terrorism 2002: Terror, Counterterror, and State Sponsorship’ (30 April 2003) Washington Institute for Near East Policy <www.thewashingtoninstitute.org/templateC05.php?CID=1631> accessed 30 May 2015.

(30) This critique keeps in line with post-9/11 scholarly accounts suggesting that we were ‘confronting a confusion of international legal norms that threatens to undermine constraints on the use of force in international society’. See J Brunnée and SJ Toope, ‘Canada and the Use of Force: Reclaiming Human Security’ (2004) 59 International Journal 247, 250 who were particularly vocal about the US merging analytically distinct international legal categories, such as human rights, refugee protection, and threats to peace and security under a single, overriding threat pre-emption model.

(31) See, eg, S Kirchner, ‘Third Party Liability for Hezbollah Attacks against Israel’ (2006) 7 German Law Journal 777, 780. See also C Bloom, ‘The Classification of Hezbollah in Both International and Non-International Armed Conflicts’ (2008) 14 Annual Survey of International and Comparative Law 61, 78–82; D Byman, ‘Should Hezbollah Be Next?’ (2003) 82 FA 54 and ‘Hezbollah’s Dilemma’ (13 April 2005) (author’s update) <www.foreignaffairs.com/articles/middle-east/2005-04-13/hezbollahs-dilemma> accessed 30 May 2015; J Slomich, ‘The Ta’if Accord: Legalizing the Syrian Occupation of Lebanon’ (1998–9) 22 Suffolk Transnational Law Review 619, 633.

(32) This line of argument was fully fleshed out in V-J Proulx, ‘Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks?’ (2005) 23 BJIL 615. Moreover, the Taliban maintained that its refusal to extradite bin Laden rested on Muslim customs and did not amount to the adoption or endorsement of Al-Qaeda’s cause. See, eg, KN Trapp, State Responsibility for International Terrorism (OUP 2011) 54.

(33) See, eg, A-M Slaughter and W Burke-White, ‘An International Constitutional Moment’ (2002) 43 HILJ 1, 19–21; M Byers, ‘Terrorism, the Use of Force, and International Law after 11 September’ (2001) 51 ICLQ 401, 405–10; MA Drumbl, ‘Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order’ (2002) 81 North Carolina Law Review 1, 34–5; M Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’ (2002) 84 International Review of the Red Cross 401, 406–9; ME O’Connell, ‘Evidence of Terror’ (2002) 7 JCSL 19, 28–32. On the ‘direct/indirect’ responsibility distinction in counterterrorism contexts, see Section 5.2.4.

(34) JP Kelly, ‘The International Law of Force and the Fight against Terrorism’ (2003) 21 Delaware Lawyer 18, 19.

(35) The US and the international community have never recognized the Taliban as the legitimate government of Afghanistan. See, eg, UNSC Res 1193 (28 August 1998) UN Doc S/RES/1193, 1214 (8 December 1998) UN Doc S/RES/1214, 1267 (15 October 1999) UN Doc S/RES/1267, 1333 (19 December 2000) UN Doc S/RES/1333, 1363 (30 July 2001) UN Doc S/RES/1363. Based on these precedents and international law, it was difficult to justify, on legal grounds, the US-led strikes against Afghanistan. Some resolved this discrepancy by asserting that the Taliban was the de facto government of Afghanistan, irrespective of US or international perception. 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, 6. Moreover, there is overwhelming evidence that the Taliban wielded de facto control over most of the region. See, eg, GH Aldrich, ‘The Taliban, Al Qaeda, and the Determination of Illegal Combatants’ (2002) 96 AJIL 891, 891, 893; RA Falk, The Great Terror War (Olive Branch Press 2003) 101; M Mofidi and AE Eckert, ‘“Unlawful Combatants” or “Prisoners of War”: The Law and Politics of Labels’ (2003) 36 CILJ 59, 81, 83–5.

(36) Authorization for Use of Military Force, Public Law No 107–40, 115 Stat 224 (2001).

(37) See, eg, V Gowlland-Debbas, ‘The Security Council as Enforcer of Human Rights’ in B Fassbender (ed.), Securing Human Rights?: Achievements and Challenges of the UN Security Council (OUP 2011) 36–73; LMH Martínez, ‘The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political and Practical Limits’ (2008) 57 ICLQ 333.

(38) UNGA ‘Report of the High-level Panel on Threats, Challenges and Change: A More Secure World: Our Shared Responsibility’ (2 December 2004) UN Doc A/59/565, paras 17–23. See also generally J Wolf, ‘Responses to Nonmilitary Threats: Environment, Disease, and Technology’ in PG Danchin and H Fischer (eds), United Nations Reform and the New Collective Security (CUP 2010) 173–92.

(39) See, eg, C Gray, ‘Climate Change and the Law on the Use of Force’ in R Rayfuse and SV Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012) 219, 229–35.

(40) In fact, some interlocutors opine that global warming poses a more pressing, and potentially more damaging, challenge to the global order than terrorism. Michael Bloomberg aptly summarized this position: ‘[t]‌errorists kill people, weapons of mass destruction have the potential to kill enormous numbers of people. Global warming, long-term, has the potential to kill everybody’. See B Avni, ‘Mayor Compares Threat of Global Warming to Terrorism’ The New York Sun (New York, 12 February 2008) <www.nysun.com/national/mayor-compares-threat-of-global-warming/71103/> accessed 30 May 2015.

(41) See, eg, T Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Hart 2006) 57–62; Proulx (n 6) 18–30, 51, 92, 115–16, 138–9, 145–6, 162, 189, 192, 197, 218, 219–20, 224, 232–3, 254, 268, 270, 277–82, 290, 292, 299, 319. But see Becker (n 41) 263 (observing that the fields of ‘human rights and environmental law’ are to ‘be regarded as qualitatively distinct from contemporary cases of terrorism’). On the intersection of SR repertoire and environmental protection, see also RM Bratspies, ‘State Responsibility for Human-Induced Environmental Disasters’ (2012) 55 GYIL 175.

(42) See, eg, the Draft Articles on prevention of transboundary harm from hazardous activities with commentaries in ILC, ‘Report of the International Law Commission on the Work of its 53rd Session’ (23 April–10 August 2001) UN Doc A/56/10, 146–70. On the consideration of environmental questions in the elaboration of the ILC’s work on SR, see JJ Ruiz, ‘Les Considérations Relatives à l’Environnement dans les Travaux de Codification sur la Responsabilité Internationale de l’État’ in D Amirante et al. (eds), Pour un Droit Commun de l’Environnement: Mélanges en l’Honneur de Michel Prieur (Dalloz 2007) 181–205.

(43) See, eg, Rayfuse and Scott (n 39); M Hall, ‘State Responsibility for the Adverse Impacts of Climate Change on Individuals: Assessing the Potential for an Interdisciplinary Approach’ in SD Farrall et al. (eds), Criminological and Legal Consequences of Climate Change (Hart 2012) 215–40.

(44) See, eg, S Atapattu, ‘Sustainable Development and Terrorism: International Linkages and a Case Study of Sri Lanka’ (2006) 30 William & Mary Environmental Law & Policy Review 273; CR Sunstein, ‘Irreversible and Catastrophic: Global Warming, Terrorism, and Other Problems’ (2005–06) 23 Pace Environmental Law Review 3 and ‘On the Divergent American Reactions to Terrorism and Climate Change’ (2007) 107 Columbia Law Review 503, 515–6. Others espouse a criminal law-minded approach in tackling transnational pollution. See, eg, R White (ed.), Transnational Environmental Crime (Ashgate 2013).

(45) RA Posner, Catastrophe: Risk and Response (OUP 2004) 6, 21–91.

(46) See, eg, B Mayer, ‘State Responsibility and Climate Change Governance: A Light through the Storm’ (2014) 13 Chinese Journal of International Law 539; C Tomuschat, ‘Global Warming and State Responsibility’ in H Hestermey et al. (eds), Law of the Sea in Dialogue (Springer 2011) 3–9; R Lefeber, ‘Climate Change and State Responsibility’ in Rayfuse and Scott (n 39) 321–49; RM Fernández Egea, ‘State Responsibility for Environmental Harm “Revisited” within the Climate Change Regime’ in S Maljean-Dubois and L Rajamani (eds), Implementation of International Environmental Law (Nijhoff 2011) 375–417.

(47) P Cullet, ‘Liability and Redress for Human-Induced Global Warming: Towards and International Regime’ (2007) 43A SJIL 99, 100. In ibid 107, Cuellet also frames the shortcomings of SR in terms of a lack of substantive development at the State level: ‘the unwillingness of states to develop the law of state responsibility sufficiently means that it is unlikely to provide an effective tool to compensate for damages’.

(48) See, eg, R Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility (Nijhoff 2005) 225–32. For a more nuanced appraisal, see C Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 NJIL 1. For an empirical assessment of both tort law/causal standards of obligations and strict liability regimes for climate change, see DA Weisbach, ‘Responsibility for Climate Change, by the Numbers’ (2009) <http://ssrn.com/abstract=1324857> accessed 30 May 2015.

(49) R Pisillio-Mazzeschi, ‘Forms of International Responsibility for Environmental Harm’ in F Francioni and T Scovazzi (eds), International Responsibility for Environmental Harm (Graham & Trotman 1991) 15–35.

(50) Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 38, 55–6 [101] (also citing Corfu Channel (n 6) 22; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 242 [29]).

(51) See, eg, BJ Gareau, From Precaution to Profit: Contemporary Challenges to Environmental Protection in the Montreal Protocol (Yale University Press 2013).

(52) See, eg, A-C Kiss and D Shelton, International Environmental Law (3rd edn, Transnational 2004) 320; HW McGee, Jr, ‘Litigating Global Warming: Substantive Law in Search of a Forum’ (2005) 16 Fordham Environmental Law Review 371, 391.

(53) See the examples and references invoked in Proulx (n 6) 138.

(54) B Fassbender, ‘The Security Council: Progress is Possible but Unlikely’ in A Cassese (ed.), Realizing Utopia: The Future of International Law (OUP 2012) 52, 58. See also generally CK Penny, ‘Greening the Security Council: Climate Change as an Emerging Threat to International Peace and Security’ in International Environmental Agreements: Politics, Law and Economics, vol 7 (Kluwer 2007) 35–71.

(55) UNSC Res 687 (3 April 1991) UN Doc S/RES/687 [16]. On other aspects of this precedent, see Sections 4.4.3 and 4.5.1 of this book.

(56) 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) p 101 [14]. See also generally CR Payne and PH Sand (eds), Gulf War Reparations and the UN Compensation Commission: Environmental Liability (OUP 2011); PH Sand, ‘Environmental Damage Claims from the 1991 Gulf War: State Responsibility and Community Interests’ in U Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (OUP 2011) 1241–61. For further discussion on SC Res 687 (n 55) and related implications for the implementation of SR, see Sections 4.4.3 and 4.5.1, this book.

(57) See, eg, Aerial Herbicide Spraying (Ecuador v Colombia) (Removal from List) [2013] ICJ Rep 278 (which was stricken from the ICJ’s General List before being heard on the merits, in light of an agreement between the parties); the joined proceedings in Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Joinder) [2013] ICJ Rep 184 and Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Joinder) [2013] ICJ Rep 166.

(58) DH Cole, ‘The Problem of Shared Irresponsibility in International Climate Law’ in A Nollkaemper and D Jacobs (eds), Distribution of Responsibilities in International Law (CUP 2015) ch 10. See also generally T Stephens, ‘International Environmental Disputes: To Sue or Not to Sue?’ in N Klein (ed.), Litigating International Law Disputes: Weighing the Balance (CUP 2014) 284–304. As a result, there has been a corresponding increase in domestic litigation, particularly to tackle greenhouse gas emitting operations, to palliate the lack of robust international regulation and enforcement. See generally R Lord et al. (eds), Climate Change Liability: Transnational Law and Practice (CUP 2012); WCG Burns and HM Osofsky (eds), Adjudicating Climate Change: State, National and International Approaches (CUP 2009).

(59) C Redgwell, ‘The Wrong Trousers: State Responsibility and International Environmental Law’ in P Koutrakos and M Evans (eds), The International Responsibility of the European Union: European and International Perspectives (Hart 2013) 257–74 (and authorities cited therein).

(60) See also A Nollkaemper, ‘Compliance Control in International Environmental Law: Traversing the Limits of the National Legal Order’ (2002) 13 YIEL 165, 186; M Fitzmaurice, ‘Responsibility and Climate Change’ (2010) 53 GYIL 89, 137. On the difficulty of quantifying environmental harm for the purposes of compensation under ARSIWA (n 56) Art 36(2), see Proulx (n 6) 217–19. For a comparative study, see J Liu, Compensating Ecological Damage: Comparative and Economic Observations (Intersentia 2013).

(61) See also M Fitzmaurice and C Redgwell, ‘Environmental Non-Compliance Procedures and International Law’ (2000) 31 NYIL 35, 65; A Andrusevych et al. (eds), Case Law of the Aarhus Convention Compliance Committee (2004-11) (2nd edn, Resource and Analysis Centre Society & the Environment 2011).

(62) See also generally M Bowman and A Boyle (eds), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (OUP 2002); P Wetterstein (ed.), Harm to the Environment: The Right to Compensation and the Assessment of Damages (Clarendon Press 1997).

(63) See also A Boyle, ‘Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches’ in Wetterstein (n 62) 89. In particular, see also Redgwell (n 59) 267 (critiquing the ‘“backward-looking” nature of state responsibility with respect to restitution and compensation’).

(64) See also Boyle (n 63) 89 (identifying the Iraq–Kuwait scenario as a rare example of exclusive State liability for environmental harm, which was largely implemented through claims submitted in an international forum).

(65) See also P Birnie et al., International Law and the Environment (3rd edn, OUP 2009) 237.

(66) ARSIWA (n 56) Art 47(1).

(67) See also Proulx (n 6) 128, 275, 291–2, 299.

(68) See, eg, I Brownlie, Principles of Public International Law (6th edn, OUP 2003) 189; Voigt (n 48) 19 (both arguing that there is little State practice and academic support justifying the importation of joint/several liability into international law).

(69) T Scovazzi, ‘Some Remarks on International Responsibility in the Field of Environmental Protection’ in Ragazzi (n 10) 217–18. This phenomenon also appears to fly in the face of the reasoning extracted from Corfu Channel. See, eg, Smith (n 28) 754.

(70) Scovazzi (n 69) 217–18. Moreover, internationally wrongful conduct might engender ‘ripple effects’ or continuing environmental harm beyond the initial breach. Whilst the extension of that conduct’s consequences over time might assist for the quantification of damage, for example, it does not necessarily convert that act into a ‘continuing violation’. See ILC Report (n 42) 60 [6]‌. Similarly, multiple actors, be they States, non-State entities, or individuals, can potentially contribute to the same harmful conduct, which engenders considerable challenges for the purposes of establishing causation. See I Plakokefalos, ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity’ (2015) 26 EJIL 471.

(71) Redgwell (n 59) 266–7; Lefeber (n 46) 341–2.

(72) Although not directly on point, consider SJ Toope, ‘Public Commitment to International Law: Canadian and British Media Perspectives on the Use of Force’ in CPM Waters (ed.), British and Canadian Perspectives on International Law (Nijhoff 2006) 13–25.

(73) See, eg, S Vinogradov, ‘The Impact of the Deepwater Horizon: The Evolving International Legal Regime for Offshore Accidental Pollution Prevention, Preparedness, and Response’ (2013) 44 Ocean Development & International Law: The Journal of Marine Affairs 335.

(74) VP Nanda, ‘Global Warming and International Environmental Law: A Preliminary Inquiry’ (1989) 30 HILJ 375, 385.

(75) See, eg, J Barboza, The Environment, Risk and Liability in International Law (Nijhoff 2010).

(76) See, eg, N Horbach and P Bekker, ‘State Responsibility for Injurious Transboundary Activity in Retrospect’ (2003) 50 NILR 327.

(77) M Bennouna, ‘Réflexions sur la Régulation Internationale du Risque à Propos du Concept de Prévention’ in R Hostiou et al. (eds), Terres du Droit: Mélanges en l’Honneur d’Yves Jégouzo (Dalloz 2009) 371, 376. See also generally M Bennouna, ‘Prevention and International Law’ in Collected Courses of the Xiamen Academy of International Law, vol 4 (Nijhoff 2013) 157–209.

(78) On the role of SR in stabilizing international relations, see Proulx (n 6) 251–63.

(79) CR Sunstein, Laws of Fear: Beyond the Precautionary Principle (CUP 2005) 61. For a critical take on the role of risk in Sunstein’s framework, and on the precautionary principle more generally, see JD Ellis, ‘Overexploitation of a Valuable Resource? New Literature on the Precautionary Principle’ (2006) 17 EJIL 445.

(80) For a deconstruction of the obligation to prevent genocide in light of that case, see P Gaeta, ‘On What Conditions Can a State Be Held Responsible for Genocide?’ (2007) 18 EJIL 631.

(81) 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, 223 [432].

(82) See, eg, Bennouna, ‘Réflexions’ (n 77) 376.

(83) See, eg, C Raffensperger and J Tickner (eds), Protecting Public Health and the Environment: Implementing The Precautionary Principle (Island Press 1999).

(84) See, eg, ML Reynolds, ‘Landowner Liability for Terrorist Acts’ (1996) 47 Case Western Law Review 155, 175. See also TS Renoux and A Roux, ‘The Rights of Victims and Liability of the State’ in R Higgins and M Flory (eds), Terrorism and International Law (Routledge 1997) 251, 252 (‘[a]‌s for the insurance companies, they have for a long time excluded terrorist attacks from their risks covered’).

(85) The terminology is borrowed from Sunstein (n 79) 40. See also P Slovic et al., ‘Violence Risk Assessment and Risk Communication’ (2000) 24 Law and Human Behaviour 271.

(86) See, eg, Sunstein (n 79) 40.

(87) See, eg, EJ Johnston et al., ‘Framing, Probability Distortions, and Insurance Decisions’ (1993) 7 Journal of Risk and Uncertainty 35.

(88) Sunstein (n 79) 40.

(89) See generally JE Mueller, ‘Terrorism, Overreaction, and Globalization’ in RN Rosecrance and AA Stein (eds), No More States? Globalization, National Self-Determination, and Terrorism (Rowman & Littlefield 2006) 47–74.

(90) See Judge Weeramantry’s Dissenting Opinion in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case (Provisional Measures) [1995] ICJ Rep 288, 342–4; Dissenting Opinion of Judge Palmer in ibid 412; Separate Opinion of Judge Koroma in Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Merits) [1997] ICJ Rep 7, 152.

(91) See, eg, WTO, European Communities: Measures Concerning Meat and Meat Products (Hormones)—Report of the Appellate Body (16 January 1998) WT/DS26/AB/R and WT/DS48/AB/R [123]; European Communities: Measures Affecting the Approval and Marketing of Biotech Products—Report of the Panel (29 September 2006) WT/DS291/R, WT/DS292/R, and WT/DS293/R [7.86][7.89]; Australia: Measures Affecting Importation of Salmon (submitted by Canada)—Report of the Panel (12 June 1998) WT/DS18/R; Japan: Measures Affecting Agricultural Products—Report of the Panel (27 October 1998) WT/DS76/R; Japan: Measures Affecting Agricultural Products—Report of the Appellate Body (22 February 1999) WT/DS76/AB/R; India: Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products—Report of the Panel (6 April 1999) WT/DS90/R; Japan: Measures Affecting the Importation of Apples—Report of the Panel (15 July 2003) WT/DS245/R.

(92) See, eg, Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures, Order of 27 August 1999) ITLOS Reports 1999, 75, 77, 79; The MOX Plant Case (Ireland v UK) (Provisional Measures, Order of 3 December 2001) ITLOS Reports 2001 [75], [89]. However, the Bluefin Tuna Cases have profoundly divided scholarly currents on whether ITLOS in fact applied the precautionary principle in those instances. Some infer that it applied the precautionary principle. See, eg, A Fabra, ‘The LOSC and the Implementation of the Precautionary Principle’ (1999) 10 YIEL 17. Others opine that the precautionary principle did not seep into the Tribunal’s decision-making. See, eg, P Chrestia, ‘Chronique de Jurisprudence Internationale’ (2000) 104 RGDIP 52; MD Evans, ‘The Southern Bluefin Tuna Dispute: Provisional Thinking on Provisional Measures?’ (1999) 10 YIEL 14; DM Johnston, ‘Fishery Diplomacy and Science and the Judicial Function’ (1999) 10 YIEL 35. A third school of thought remains rather vague or contradictory on the subject. See, eg, F Orrego Vicuña, ‘From the 1893 Bering Sea Fur-Seals Case to the 1999 Southern Bluefin Tuna Cases: A Century of Efforts at Conservation of the Living Resources on the High Seas’ (1999) 10 YIEL 33, 33–4; S Marr, ‘The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources’ (2000) 11 EJIL 816.

(93) See, eg, Bluefin Tuna Cases (Australia and New Zealand v Japan) (2000) 23 RIAA 1, 48–9 [72].

(94) Pulp Mills Case (n 50) 71 [164].

(95) Consider the Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, the Separate Opinion of Judge Cançado Trindade, and the Dissenting Opinion of Judge ad hoc Vinuesa in the Pulp Mills Case (n 50) [23], [62]–[96], [100], respectively.

(96) See, eg, J Cameron and J Abouchar, ‘The Status of the Precautionary Principle in International Law’ in D Freestone and E Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (Kluwer 1996) 29, 45; H Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law – The Precautionary Principle: International Environmental Law Between Exploitation and Protection (Graham & Trotman 1994) 184; A Kiss, ‘Émergence de Principes Généraux du Droit International et d’une Politique Internationale de l’Environnement’ in I Rens (ed.), Le Droit International Face à l’Éthique et à la Politique de l’Environnement (Georg 1996) 30.

(97) See, eg, P Birnie and AE Boyle, International Law and the Environment (Clarendon Press 1992) 98; D Bodansky, ‘Remarks: New Development in International Environmental Law’ (1991) 85 ASIL Proceedings 410; L Boisson de Chazournes et al. (eds), Protection Internationale de l’Environnement (Pedone 1998) 19; P-M Dupuy, ‘Où en est le Droit International de l’Environnement à la Fin du Siècle?’ (1997) 101 RGDIP 889; M Fitzmaurice, ‘International Environmental Law as a Special Field’ (1994) 25 NYIL 220.

(98) See generally CE Foster, Science and the Precautionary Principle in International Courts and Tribunals (CUP 2013); J D’Aspremont and MM Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 Journal of International Dispute Settlement 240; MM Mbengue, Essai sur une Théorie du Risque en Droit International Public: L’Anticipation du Risque Environnemental et Sanitaire (Pedone 2009); J Cazala, Le Principe de Précaution en Droit International (Anthemis 2006).

(99) P Sands, Principles of Environmental Law (Manchester University Press 1995) 212.

(100) L Gundling, ‘The Status in International Law of the Precautionary Principle’ (1990) 5 International Journal of Estuarine and Coastal Law 25; L Gundling, ‘The Status in International Law of the Precautionary Principle’ in D Freestone and T Ijilstra (eds), The North Sea: Perspectives on Regional Environmental Co-operation (Graham & Trotman 1990) 23–30.

(101) G Handl, ‘Environmental Security and Global Change: The Challenge of International Law’ (1990) 1 YIEL 3, 23.

(102) For a thoughtful but dated study on the question, see B Saul, Defining Terrorism in International Law (OUP 2006).

(103) See, eg, J Chaisse and T Balmelli (eds), Essays on the Future of the World Trade Organization, vol 1 (Edis 2008) 382.

(104) Rio Declaration on Environment and Development (adopted 14 June 1992) (1992) 31 ILM 874, Principle 15 reads as follows:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation (emphasis added).

(105) The Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 1513 UNTS 293 and the Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3 both allude to ‘precautionary measures’ in their respective preambles. See also Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions (adopted 14 June 1994, entered into force 5 August 1998) (1993) 33 ILM 1540, preamble.

(106) Bergen Ministerial Declaration on Sustainable Development in the ECE Region (adopted 16 May 1990) UN Doc A/CONF.151/PC/10, Annex I, para 7 (stating that its objective of sustainable development must be achieved by adopting measures that are in conformity with the precautionary principle). The document also provides that ‘environmental measures must anticipate, prevent and attack the cause of environmental degradation’, whilst also incorporating a portion of the wording of Principle 15 (n 104).

(107) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1993, entered into force 6 October 1996) 1936 UNTS 269, Art 2.5(a) provides that members must be guided by ‘[t]‌he precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand’.

(108) Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79. However, the preamble of this instrument does not expressly refer to the precautionary principle. For more background on this treaty, see M Bowman and C Redgwell, International Law and the Conservation of Biological Diversity (Kluwer 1995).

(109) UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107; see particularly Art 3(3) of that instrument. See also Treaty on European Union (Maastricht Treaty) Art 130R; Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa (adopted 30 January 1991, entered into force 22 April 1998) 2101 UNTS 177, Art 4(3); Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3, Arts 5–6.

(110) ILC Report–53rd Session (n 42) 161–3.

(111) See, eg, L Boisson de Chazournes, ‘Precaution in International Law: Reflection on Its Composite Nature’ in TM Ndiaye and R Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Nijhoff 2007) 21–34.

(112) Various aspects of this precedent are discussed in Sections 3.1.5.1, 3.2.1, 3.2.1.1, 3.2.2, 4.1, 4.4.1, 4.4.5, 4.4.9, 4.5.1, 4.5.2, and 4.6.1.

(113) See, eg, A Pellet, Recherche sur les Principes Généraux de Droit en Droit International Public (Thesis, Paris 1974) 428; M Virally, ‘Le Rôle des Principes dans le Développement du Droit International’ in IUHEI de Genève (ed.), Recueil d’Études de Droit International en Hommage à Paul Guggenheim (Tribune 1968) 531, 546; H Kelsen, ‘Théorie du Droit International Public’ (1953) 84 RdC 182; S Sur, ‘Quelques Observations sur les Normes Juridiques Internationales’ (1985) 89 RGDIP 901, 906; P Weil, ‘Le Droit International en Quête de son Identité—Cours Général de Droit International Public (1992) 237 RdC 9, 148–51.

(114) See, eg, Proulx (n 6) 77–80.

(115) See, eg, E Rosand, ‘The UN-Led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?’ (2006) 11 JCSL 399, 401 (discussing the emergence of home-grown terrorism and linking it to both the Madrid and London bombings, along with the assassination of Theo van Gogh). See also Section 2.1.

(116) H Rishikof, ‘Long Wars of Political Order—Sovereignty and Choice: The Fourth Amendment and the Modern Trilemma’ (2006) 15 Cornell Journal of Law and Public Policy 587, 618. See also JG Dalton, ‘The United States National Security Strategy: Yesterday, Today, and Tomorrow’ (2005) 52 Naval Law Review 60, 62 (underscoring that ‘[a]‌n “arc of instability” stretching from the Western Hemisphere, through Africa and the Middle East, and extending to Asia serves as a “breeding ground” for such activities’). See also L Condorelli, ‘The Imputability to States of Acts of International Terrorism’ (1989) 19 IYHR 233, 240. As pointed out by JA McCredie, ‘The Responsibility of States for Private Acts of International Terrorism’ (1985) 1 Temple International and Comparative Law Journal 69, 73, a ‘state may be subject to penalties for a failure to exercise jurisdiction if the offense is committed within its borders’.

(117) See Introduction nn 18–19 and accompanying text. The SC has also done so in a variety of other contexts, including in response to terrorist threats in Mali. See, eg, UNSC Res 2227 (29 June 2015) UN Doc S/RES/2227, preamble. On the security risks posed by Al-Shabaab in both Somalia and Yemen, see UNSC Res 2232 (28 July 2015) UN Doc S/RES/2232.

(118) See, eg, Proulx (n 6) 242–8.

(119) See, eg, RM Gates, ‘A Balanced Strategy: Reprogramming the Pentagon for a New Age’ (2009) 88 FA 28. This is also particularly true in the case of counterinsurgency strategy. See, eg, D Kilcullen, ‘Counter-Insurgency Redux’ (2006) 48 Survival: Global Politics and Strategy 111, 111–12.

(120) CH Norchi, ‘The Legal Architecture of Nation-Building: An Introduction’ (2008) 60 Maine Law Review 281, 290.

(121) See, eg, SP Rosenberg, ‘Promoting Equality after Genocide’ (2008) 16 Tulane Journal of International and Comparative Law 329, 337 fn 20 and accompanying text; N Cigar, Genocide in Bosnia: The Policy of ‘Ethnic Cleansing’ (Texas A&M University Press 1995) 42–3.

(122) See, eg, B Gellman, ‘Secret Unit Expands Rumsfeld’s Domain’ Washington Post (Washington, DC, 23 January 2005) A1.

(123) See, eg, DE Stigall, ‘Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law’ (2013) 3 Notre Dame Journal of International & Comparative Law 1.

(124) See also Proulx (n 6) 305–6 (arguing that in the case of ‘failed’ or ineffective States, the benefits of SR law ‘might have met their match’ and the remedy of satisfaction can only play some symbolic role in such instances).

(125) For various views, see, eg, RC Beckman and JA Roach (eds), Piracy and International Maritime Crimes in ASEAN: Prospects for Cooperation (Edward Elgar 2012); D Guilfoyle (ed.), Modern Piracy: Legal Challenges and Responses (Edward Elgar 2013); C Houry, La Piraterie Maritime au Regard du Droit International: Incertitudes et Évolutions Contemporaines (L’Harmattan 2014); R Geiss and A Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (OUP 2011). On the role that international law can play in combating piracy, see D Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (Zone Books 2009).

(126) See, eg, D Momtaz, ‘L’apport du Conseil de Sécurité à la Lutte contre l’Impunité des Pirates Opérant au Large des Côtes de la Somalie’ (2010) 15 Annuaire du Droit de la Mer 239.

(127) See, eg, Section 4.6.2 n 465 and accompanying text.

(128) See Proulx (n 6) 232–5, 319–20, and authorities cited therein. See also G Goh, International Law and Outer Space (OUP, forthcoming 2016) ch 9.

(129) See, eg, AF Snyman, ‘The Environmental Responsibility of States for Space Debris and the Implications for Developing Countries in Africa’ (2013) 46 Comparative and International Law Journal of Southern Africa 19.

(130) See, eg, WM Reisman, ‘International Legal Responses to International Terrorism’ (1999) 22 HJIL 3, 4. On the challenges of cyber-terrorism, generally, see GS McNeal, ‘Cyber Embargo: Countering the Internet Jihad’ (2007–8) 39 CWRJIL 789.

(131) See, eg, SJ Shackelford, ‘From Nuclear War to Net War: Analogizing Cyber Attacks in International Law’ (2008) 27 BJIL 191, 214; SJ Shackelford and RB Andres, ‘State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem’ (2001) 42 GJIL 971. More broadly, publicists and policy experts are also attempting to better define cyber legal frameworks not only as regards SR, but in other international legal fields as well. See N Tsagourias and R Buchan (eds), Research Handbook on International Law and Cyberspace (Edward Elgar 2015), and A Antonopoulos, ‘State Responsibility in Cyberspace’ in ibid 55–71.

(132) See N Tsagourias, ‘Cyber-Attacks, Self-Defence and the Problem of Attribution’ (2012) 17 JCSL 229; MN Schmitt and L Vihul, ‘Proxy Wars in Cyberspace: The Evolving International Law of Attribution’ (2014) Fletcher Security Review 55.

(133) See Section 6.2.4 nn 120–1, authorities cited therein, and accompanying text.

(134) CM Kirsch, ‘Science Fiction No More: Cyber Warfare and the United States’ (2012) 40 Denver Journal of International Law and Policy 620; JM Beard, ‘Law and War in the Virtual Era’ (2009) 103 AJIL 1.

(135) M Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014); MN Schmitt, ‘The Use of Cyber Force and International Law’ in M Weller (ed.), The Oxford Handbook of the Use of Force in International Law (OUP 2015) 1110–30; MC Waxman, ‘Self-defensive Force against Cyber Attacks: Legal, Strategic and Political Dimensions’ (2013) 89 International Law Studies 109; C Lotrionte, ‘State Sovereignty and Self-Defense in Cyberspace: A Normative Framework for Balancing Legal Rights’ (2012) 26 Emory International Law Review 825; JP Kesan and CM Hayes, ‘Mitigative Counterstriking: Self-Defense and Deterrence in Cyberspace’ (2012) 25 Harvard Journal of Law & Technology 429.

(136) MN Schmitt and CM Pitts, ‘Cyber Countermeasures and Effects on Third Parties: The International Legal Regime’ (2014) 14 Baltic Yearbook of International Law 1; K Bannelier-Christakis, ‘Cyber Diligence: A Low-Intensity Due Diligence Principle for Low-Intensity Cyber Operations?’ in ibid 23; ET Jensen, ‘State Obligations in Cyber Operations’ in ibid 71; AL Kozik, ‘The Concept of Sovereignty as a Foundation for Determining the Legality of the Conduct of States in Cyberspace’ in ibid 93; N Tsagourias, ‘The Law Applicable to Countermeasures against Low-Intensity Cyber Operations’ in ibid 105; MN Schmitt, ‘“Below the Threshold” Cyber Operations: The Countermeasures Response Option and International Law’ (2014) 54 VJIL 697; L Grosswald, ‘Cyberattack Attribution Matters under Article 51 of the U.N. Charter’ (2011) 36 Brooklyn Journal of International Law 1151; MN Schmitt, ‘Cyber Activities and the Law of Countermeasures’ in K Ziolkowski et al. (eds), Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy (NATO Cooperative Cyber Defence Centre of Excellence 2013) 659–90; R Geiss and H Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses towards Non-forcible Countermeasures and Collective Threat-prevention’ in ibid 621–57.

(137) See, eg, OA Hathaway et al., ‘The Law of Cyber-Attack’ (2012) 100 California Law Review 817, esp 831 (discussing the actions of the ‘Kremlin Kids’, private hackers who disabled the Georgian Internet during Russia’s invasion of South Ossetia, in the context of the intersection of SR and terrorism), 843 (invoking the violation of customary international law by way of clandestine, online State action that violates the norms governing non-intervention), 857–9, 879–80 (examining the scourge of cyber-attacks in the context of countermeasures under SR repertoire). See also generally JT Biller, ‘Cyber-Terrorism: Finding a Common Starting Point’ (2013) 4 Journal of Law, Technology & the Internet 275.

(138) For an extensive review of this precedent, see Proulx (n 6) 273–5, 297–8 and authorities cited therein (also exploring the challenges in attributing cyber-attacks under SR law). Other relevant incidents occurred in Georgia in 2008 and Iran in 2010.

(139) See D Turns, ‘The First Case of Cyberwar in Non-International Armed Conflict? The Matrix in Iraq’ (2015) 19 ASIL Insights <http://www.asil.org/insights/volume/19/issue/18/first-case-cyberwar-non-international-armed-conflict-matrix-iraq> accessed 18 August 2015. For another conflict, see also G Boulet, ‘Cyber Operations by Private Actors in the Ukraine-Russia Conflict: From Cyber War to Cyber Security’ (2015) 19 ASIL Insights <http://www.asil.org/insights/volume/19/issue/1/cyber-operations-private-actors-ukraine-russia-conflict-cyber-war-cyber> accessed 10 August 2015.

(140) See, eg, DE Graham, ‘Cyber Threats and the Law of War’ (2010) 4 Journal of National Security Law and Policy 87, 92–3, 96. See also generally MJ Sklerov, ‘Solving the Dilemma of State Responses to Cyberattacks: A Justification for the Use of Active Defenses against States Who Neglect their Duty to Prevent’ (2009) 201 Military Law Review 1, 6–7; J Carr, Inside Cyber Warfare: Mapping the Cyber Underworld (2nd edn, O’Reilly 2010) 56.

(141) SR Ratner, ‘Self-Defence against Terrorists: The Meaning of Armed Attack’ in L van den Herik and N Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (CUP 2013) 334, 352–3.

(142) Prior to 9/11, the analytical crux focused on the impact of the online attack. See, eg, MN Schmitt, ‘Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework’ (1999) 37 CJTL 885; TC Wingfield, The Law of Information Conflict: National Security Law in Cyberspace (Aegis Research Corporation 2000).

(143) MN Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare: Prepared by the International Group of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence (CUP 2013). For various views on the Tallinn Manual, see D Fleck, ‘Searching for International Rules Applicable to Cyber Warfare: A Critical First Assessment of the New Tallinn Manual’ (2013) 18 JCSL 331; L Boer, ‘Restating the Law “As It Is”: On the Tallinn Manual and the Use of Force in Cyberspace’ (2013) 5 Amsterdam Law Forum 4; O Kessler, ‘Expertise, Uncertainty, and International Law: A Study of the Tallinn Manual on Cyberwarfare’ (2013) 26 LJIL 793; WH von Heinegg, ‘The Tallinn Manual and International Cyber Security Law’ (2012) 15 Yearbook of International Humanitarian Law 19; N Tsagourias, ‘The Tallinn Manual on the International Law Applicable to Cyber Warfare: A Commentary on Chapter II—the Use of Force’ (2012) 15 Yearbook of International Humanitarian Law 19; C Lecomte, ‘Le Manuel de Tallinn au Regard des Principes Posés dans la Jurisprudence de la Cour Internationale de Justice’ in SFDI (ed.), Internet et le Droit International (Pedone 2014) 309–22. See also generally HH Dinniss, Cyber Warfare and the Laws of War (CUP 2012).

(144) For further information, see <https://ccdcoe.org/research.html> accessed 10 August 2015.

(145) See P Margulies, ‘Sovereignty and Cyber Attacks: Technology’s Challenge to the Law of State Responsibility’ (2013) 14 Melbourne Journal of International Law 496. See generally Z Huang, ‘The Attribution Rules in ILC’s Articles on State Responsibility: A Preliminary Assessment on their Application to Cyber Operations’ (2014) Baltic Yearbook of International Law 41.

(146) See, eg, S Brenner, ‘At Light Speed: Attribution and Response to Cybercrime/Terrorism/Warfare’ (2007) 97 Journal of Criminal Law and Criminology 379, 424. See also generally N Bussolati, ‘The Rise of Non-State Actors in Cyberwarfare’ in C Finkelstein et al. (eds), Cyber War: Law and Ethics for Virtual Conflicts (OUP 2015) 102–26.

(147) See, eg, The United Nations Global Counter-Terrorism Strategy, UNGA Res 60/288 (20 September 2006) UN Doc A/RES/60/288 [12]. See also UNODC, ‘The Use of the Internet for Terrorist Purposes’ (2012) <https://www.unodc.org/documents/terrorism/Publications/Use_of_Internet_for_Terrorist_Purposes/ebook_use_of_the_internet_for_terrorist_purposes.pdf> accessed 18 August 2015.

(148) See, eg, UNSC Res 1624 (14 September 2005) UN Doc S/RES/1624 (also imposing the obligation on States to deny safe haven to inciters).

(149) UNSC Res 1963 (20 December 2010) UN Doc S/RES1963, preamble. See also UNSC Res 2214 (27 March 2015) UN Doc S/RES/2214.

(150) See, eg, CTITF Working Group Compendium, ‘Countering the Use of the Internet for Terrorist Purposes—Legal and Technical Aspects’ (2011) <http://www.un.org/en/terrorism/ctitf/pdfs/ctitf_interagency_wg_compendium_legal_technical_aspects_web.pdf> accessed 10 August 2015.

(151) See T Scovazzi (n 69) 217–18. Moreover, shared responsibility mechanisms might be limited in responding to transnational pollution. See Y Tanaka, ‘Reflections on Transboundary Air Pollution in the Arctic: Limits of Shared Responsibility’ (2014) 83 NJIL 213.

(152) For the text of the provision, see n 66 and accompanying text. On this provision and its implications in the counterterrorism debate, see Proulx (n 6) 128, 275, 291–3, 298–9.

(153) See, eg, SN Schiedeman, ‘Standards of Proof in Forcible Responses to Terrorism’ (2000) 50 Syracuse Law Review 249, 261; Smith (n 28) 746.

(154) Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240, 258–9. See also generally JE Noyes and BD Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ (1988) 13 YJIL 225; A Nollkaemper, ‘Issues of Shared Responsibility before the International Court of Justice’ in E Rieter and H de Waele (eds), Evolving Principles of International Law (Nijhoff 2012) 199–237. On shared responsibility, generally and in relation to terrorists, see KN Trapp, ‘Shared Responsibility and Non-State Terrorist Actors’ (2015) 62 NILR 141; A Nollkaemper and I Plakokefalos (eds), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (CUP 2014); A Nollkaemper, ‘Concerted Adjudication in Cases of Shared Responsibility’ (2014) 46 NYUJILP 809; A Nollkaemper and D Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 MJIL 359.