Emerging Transnational Self-Defense Norms & Unrealized Liberal Values

Abstract

This Chapter critiques emerging norms regarding the use of alleged defensive force by powerful states against violent non-state groups located in the territory of other, typically weaker states, sometimes called “transnational self-defense.” Although the contemporary international legal system now formally and universally embraces basic liberal values of sovereignty, equality, and liberty/autonomy, emerging transnational self-defense norms effectively perpetuate a system of de facto inequality traceable to an earlier era. The use of armed conflict paradigms and war measures against “terrorist” groups, including targeted killing in what is effectively preemptive or preventive self-defense, perpetuates a discriminatory international system wherein sovereignty and humanity are deemed equal only between so-called “civilized” nations and peoples. Properly understood, the self-defense principles of necessity and proportionality require that states: (1) resort to defensive measures only when necessary to protect lives and property from relatively certain, significant harm and (2) use only the amount of force which is strictly necessary to neutralize the threat that is reasonably believed to exist at the time force is used. Because self-defense principles constrain both the resort to force and the nature of any force used, the alternate norms posited here do not implicate contested issues involving the extraterritorial application of international human rights law.