The Plea of State of Necessity: A palatable normative framework for extraterritorial self-defense against Non-State Actors

Moisés Montiel Mogollón

doi:10.18800/iusetveritas.202102.001

Abstract

The UN Charter law governing self-defense is inadequate to address emerging modalities of armed violence caused by non-State actors located in the territory of non-consenting third States. This paper offers an alternative grounded in the state of necessity as a circumstance excluding wrongfulness as per the law of State responsibility. The contention is that in integrating the rationale behind necessity as an excuse for non-performance of obligations and the conditions and processes under article 51 of the UN Charter, the law allows for an exercise of extraterritorial self-defense against non-State actors which safeguards the territorial State’s sovereignty and the need for a legal alternative of defense for the defending State without toeing the line of aggression.

Highlights

To the best of current knowledge (Haque, 2021) (Modirzadeh, 2021) there is no normative enshrinement of the right selfdefense against non-State actors operating from the territory of a third-State without the need for consent of the territorial State (Paddeu, 2020)(1) that is generally accepted or free from contestation
Seeing as the joint reading of articles 2(4) and 51 of the UN Charter counterintuitively restrict self-defense to inter-State exchanges, and despite some ambiguous language by the UNSC on the issue(3) (Ziccardi, 2007), the fact of the matter is that self-defense against non-State actors in the territory of third-State runs counter to the prohibition on the use of force and is outside of the personal scope of application of article 51
If the law governing the use of force fates States with suffering attacks under these circumstances with their hands tied, binding as it may be, it becomes a hindrance in the performance of duties owed to citizens and an enabler of irregular threats which empties the text and spirit of the UN Charter and the core principles of modern international law

Summary

Introduction

To the best of current knowledge (Haque, 2021) (Modirzadeh, 2021) there is no normative enshrinement of the right selfdefense against non-State actors operating from the territory of a third-State without the need for consent of the territorial State (Paddeu, 2020)(1) that is generally accepted or free from contestation. On the camp of those who argue against the legality of claiming self-defense in terms of article 51 UNC as a right to be exercised against NSAs located in the territory of a third non-consenting State, the arguments put forth by Kunz (1947), Stahn (2003), Kammerhofer (2007) and Orakhelashvili (2015) ring most persuasive These authors support the conclusion that the use of force system built into the UN Charter was designed exclusively for inter-State exchanges of violence(10) and negate the possibility of self-defense being a feasible or legal claim in the particular instance of scrutiny of this paper. (20) note how the Council occasionally dabbles in quasi-judicial exercises with the Al-Qaeda Sanctions Committee and in wouldbe normative practices when it issues thematic resolutions like s/res/1882 (2009), none of which have been met with protest from Member States, which would offer the reasonable assumption that such a behavior from the Council is -at least- not ultra vires

Conclusions

Bibliographic references