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International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

By Andrew Garwood-Gowers

Abstract

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence

Topics: 180100 LAW, 180116 International Law (excl. International Trade Law), international law, use of military force, self-defence, legitimacy
Year: 2011
OAI identifier: oai:eprints.qut.edu.au:46534
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