Right Of Self-defense Research Articles

To call a spade a spade: use of force depriving a people of their right to self-determination as violation of Jus Contra Bellum

ABSTRACT This article argues that a use of force which deprives a self-determination entity (‘SDE') of its right to self-determination is prohibited under both Article 2(4) of the UN Charter and customary international law, even if there may not be sufficient practice accepted as law (opinio juris) to establish that such forcible deprivation of an SDE's right to self-determination constitutes an armed attack that entitles the SDE to the right of self-defence. The article also argues that a State's use of force to occupy or subjugate an SDE to permanently prevent an armed attack from emanating from that SDE does not qualify as lawful self-defence in the absence of an actual or imminent armed attack. Furthermore, a State's use of force against attacks emanating from an SDE that could have been averted by the State’s relinquishing control over the SDE does not satisfy the necessity requirement to qualify as lawful self-defence.

US AND UK MILITARY STRIKES IN YEMEN AND THE JUS AD BELLUM

AbstractThe United States and United Kingdom have carried out a series of strikes upon Yemeni territory since January 2024. The acting States have justified these on the basis of the right of self-defence in response to the series of attacks that have been perpetrated by the Houthi group in Yemen against various commercial and military vessels in the Red Sea. On the face of it this was a relatively straightforward justification. Yet, when subjected to analysis it becomes evident that not only is the justification itself not clear, but that the law governing the actions—the jus ad bellum—is not sufficiently settled to provide clear parameters by which to assess the legality of the strikes. Furthermore, the strikes themselves, and the purposes for which they were undertaken, may have set a precedent with unforeseeable consequences.

Retorsion: An Underrated Retaliatory Measure Against Malign Cyber Operations

Abstract The articles discusses the application of the concept of retorsion in relation to defensive measures against hostile cyber operations. Retorsion is a concept not regulated by international law, which gives the victim state a high degree of flexibility in its use. However, its limits are formed by the rules of international law (retorsion is an unfriendly act not prohibited by international law). The paper is divided into three main parts. The first part discusses the concept of retorsion in general terms and its relation to cyber operations, the second part defines the relationship between retorsion, countermeasures, plea of necessity and the right of self-defence, and the third part consists of in-depth analysis of states’ practice. The analysis of states’ practices includes both the actual measures that states have taken in response to cyber operations (e.g. expulsion of diplomats, economic sanctions, travel bans) and official statements on the issue that have been published, particularly in the period 2019–2022. Attention is also paid to the possibilities of using retorsion against cyber operations carried out by non-state actors.

A never-ending tug-of-war: The inherent right of self-defense against non-state actors

Within the scope of jus ad bellum, the right of self-defense attracts the greatest legal controversies. The long doctrinal debate surrounding it reveals the difficulty in determining its scope and precise limits during a unilateral military reaction against terrorist organizations. Here, we integrate this debate, arguing that this right is no longer only capable of being invoked in the event of an armed attack already perpetrated by a State, but it also does not have enough elasticity – without distorting it – to accommodate self-defense against terrorism. The cases of Afghanistan and Syria, on the one hand, reflect this controversy. On the other hand, they demonstrate the need for jus ad bellum to quickly adapt to reality. Therefore, we propose an intermediate position – the Unwilling and Unable doctrine, which allows the implemented system not to be distorted if it is properly defined, and if it is no longer indiscriminately invoked by States.

Israel’s Fateful March: From Settler Colonialism to Genocidal State

This article delves into the legal discussions surrounding the crisis unleashed by the military operation launched on October 7, 2023, in Southern Israel by Palestinian forces of the resistance based in Gaza. Israel considered this a “terrorist attack,” asserted the right of self-defense, declared war on Gazans, and started the continuous and indiscriminate bombardment of Gaza. As a result, Gaza has become the new Dresden, in which thousands have been killed and tens of thousands injured. This article is an attempt to answer the following questions to illuminate the legal issues surrounding the current crisis and the broader context of Israel’s legal status as a state and its territorial claims: Was the Palestinian offensive in Southern Israel an instance of terrorism and/or an act of aggression? Which side of the conflict can rightfully claim the right of self-defense? Did Israel commit genocide in Gaza? Do Israel’s statehood and territorial claims rest on firm legal grounds? Is it legally sensible to argue that Israel is a threat to international peace and security?

The right and justice of subsistence wars as necessity: a Grotian account

AbstractSubsistence wars revolve around the use of force exercised by those faced with hunger, deprivation, and other survival crises. This idea has been formulated as an act emerging from the right of self-defense in the ethics of war literature. Alternatively, this study attempts to conceptualize and justify it with the notion of the right of necessity derived from Hugo Grotius. The structural difference between self-defense and necessity highlights strict just war conditions that must be met before, during, and after waging a subsistence war, especially when it emerges from the right of necessity. The idea of waging a war out of necessity seems too permissive; in fact, it has a regulatory aspect as well. Given the significance of the right to subsistence, which is universally shared yet globally threatened, the war of subsistence is to be seen as a real and pressing concern in current and future international society.

INHERENT RIGHT OF SELF-DEFENCE IN RUSSIA – UKRAINE CONFLICT

The Inherent right of self-defense under Article 51 of the United Nations Charter has been invoked by the Russian side as part of the basis for its "special military operation" to be conducted in Ukraine from February 24, 2022. However, the theoretical application of the right to just self-defense remains a matter of controversy, especially in the way it is described and interpreted as a means of legitimizing the use of force. The following study will examine the correctness of Russia's claim on the right of self-defense to make comments and assessments about the event while giving some recommendations to the stakeholders. Foreigners will contact and draw experience from Vietnam to avoid similar problems.

Whether and to what extent does international law allow states to use military force against armed non-state actors on the territory of another state?

The relevance of the article is due to the importance of understanding the legal boundaries of state actions in the context of the growth of transnational terrorism, insurgent movements and asymmetric wars. Recent conflicts and military interventions highlight the urgent need to clarify international law regarding the acceptable use of force against armed non-state actors located in the territory of another state. Finding the delicate balance between respecting state sovereignty and ensuring the right to self-defence poses a significant challenge. The subject of the research is primarily the contemporary attribution concepts that may be used during the justification of the use of military force by states against armed non-state actors on the territory of another sovereign state. The purpose of the research is to critically examine legal aspects and state practice relating to the aforementioned concepts. The novelty of the study lies in the fact that by bringing together legal developments, state practice and some issues in using force sphere, the article offers new insights into the complex interralation between state sovereignty and the right to self-defence. Brief conclusions: 1) According to some states and experts, using military force against armed non-state actors on the territory of another state violates the sovereignty of that state, whereas others claim that it may be justified under the right of self-defence. In this regard, state practices have been inconsistent. 2) Nowadays, the «effective control» test is the only legally justified approach that triggers the right to self-defence against armed non-state actors on foreign soil. 3) There is no well-established state practice and opinio juris relating to other examinded attribution tests or the «Unable or Unwilling» doctrine.

Cyber-Attack Regulation: Issues and Advances in International Law

With the development of network technology, cyber-attacks and cyber wars are likely to become new forms of warfare that endanger world peace. The current international law has difficulties in the definition of national sovereignty, the identification of national responsibility and the exercise of the right of self-defense when cyber-attacks occur. The international community needs to supplement and improve the existing rule system as soon as possible and impose stronger legal constraints on transnational cyber-attacks. Some measures can be taken to solve this problem. Firstly, countries around the world should be promoted to reach a consensus on the legal concept of cyber sovereignty. Secondly, the applicable conditions of the current law need to be clarified. That is to say, the national responsibility for cyber-attacks and a clearer interpretation of threat or use of force and armed attack should be clarified. Meanwhile, the circumstances and methods of exercising the right of self-defense should be clarified when a cyber-attack is encountered. Thirdly, new rules of international law and relevant international soft laws should be created to solved these problems.

Legality of the Use of Armed Forces Against Foreign Parties Obstructing Efforts to Eradicate Illegal, Unregulated, Unreported Fishing in the Exclusive Economic Zone

The purpose of this research is to find out the legality of the entry of Chinese coastguards into Indonesia's EEZ to protect the Kway Fei 10078 Fishing Boat and to find out the legality of using armed forces against foreign parties who obstruct efforts to eradicate Illegal, Unregulated, Unreported Fishing in EEZ and to find out what actions Indonesia should take against China's actions. This study uses normative juridical research methods, namely looking for applicable provisions and library materials. Based on the analysis and research conducted, it was concluded that the entry of the Chinese coastguard into Indonesia's EEZ which protects the Kway Fei 10078 ship is illegal because other countries' ships are only given the right to sail, not protect other ships that violate other countries' EEZ areas according to Article 58 UNCLOS 1982. Retaliation for armed attacks against foreign parties that hinder the eradication of IUU Fishing can be carried out because the right of self-defense is granted by Article 51 of the UN Charter can be realized by a state that is harassed by foreign parties. The actions of disruptive foreign parties are usually in the form of bringing in warships or coastguards to carry out security.

Military Assistance to Ukraine: Enquiring the Need for Any Legal Justification under International Law

Abstract Since the invasion of Ukraine by Russia on 24 February 2022, Western states have provided significant military support to the Ukrainian armed forces, through the supply of arms or intelligence. This article enquires whether those states need any legal justification to make such support lawful under international law and, more particularly, under the law on the use of force, the law of neutrality and the regulation of arms transfers. It concludes that such justification might be required in certain circumstances and that the supporting states’ narrative, namely helping Ukraine to exercise its right of self-defence in response to a blatant armed attack, might act as a valid justification, except with respect to certain regulations on arms transfer.

Research on the Right of Self-Defence from the Perspective of International Law

The right of self-defence is an indispensable concept in international law, especially in the UN charter. States can protect their legitimate rights and interests from other states infringement by exercising different types of the right of self-defence. However, with the rapid advancement of technology, economy, and politics, the right of self-defense faces new challenges. The collective self-defence, the anti-terrorism self-defence and the preventive self-defence are not perfect, and the specific content of the armed attack is not clear. Although there is no clear solution system in international law at present, it can be thought of and tried from the aspects of perfecting restrictive provisions, reasonably interpreting relevant terms, and strengthening the compelling force of international law.

The Evolution of State Sovereignty under International Institutions Led to Less Use of Force and More Efficient Dispute Settlement

The continuous amelioration of the principle of state sovereignty by international law and through international institutions has reduced states' use of military force since the Peace of Westphalia. This paper will focus on why and how the evolution of is state sovereignty contributes to the maintenance of peace and security around the globe. The first part will discuss why states respect and comply with the principle of equal sovereignty under the United Nations Charter. The second part reviews the amelioration of the right of self-defense and how it is significant in constraining aggressions. The third part will examine how the affirmation of independence and sovereignty helps resist colonial ideas and behaviors. Lastly, some challenges and controversies on the principle of sovereignty will be brought up and discussed.

Turkey's Extraterritorial Use of Force against Armed Non-State Actors

AbstractThe use of force in foreign territories has been contained in the Constitution of the Republic of Turkey, with the authorisation of the Grand National Assembly of Turkey, in ‘cases deemed legitimate by international law’ and where required by international treaties to which Turkey is a party. Yet Turkey's extraterritorial use of force against armed non-state actors lead to the most important question of identifying the circumstances under which the Turkish authorities have long justified military intervention in foreign territories. This article aims to assess whether Turkey's use of force and alleged extraterritorial self-defence contravenes international law. In order to address how Turkey interprets the right to use armed force and the right of self-defence, and to bring clarity to the state's approach to international law on the use of force (jus ad bellum), the article explores Turkey's practice based on the assessment of the Turkish military intervention in Syria, in line with both bilateral security or defence treaties to which Turkey is a party and the use of force in self-defence. The aim is to determine whether Turkey's justifications are compatible with the jus ad bellum criteria.

국제법상 자연법론에 대한 고찰

The purpose of this study is to review the natural law theory in international law in order to examine some of the limitations of today’s international legal system, that is, the legal system based on voluntaristic legal positivism, and to consider the modern implications of natural law theory. Today, it is difficult to find international law scholars who take natural law as their legal theory. Even if there are natural law theorists, they may simply be referring to or emphasizing morality/justice rather than taking an approach based on “true law” or metaphysics like the classical natural law theorists. Therefore, there may be more cases of doubts on the necessity of studying natural law. Nevertheless, there is significance in studying natural law. This is because it is difficult to say that there are no remnants of natural law in the international legal system today. Historical study of natural law has been taken in order to comprehend how it has changed its nature throughout the history of international law. Furthermore, the inter-related thesis of (classical) natural law has been identified. Even though it is difficult to find the adherents of natural law today, the traces of natural law could be identified. Traces such as pacta sunt servanda, opinio juris, general principles of law, obligation of reparation, jus cogens, right of self-defence, equity, and human rights are discussed. Apparently, depending on your point of view, these issues may not be traces of natural law theory. However, in this study, it will be stated that there is a part to increase the understanding of the international legal system through the study of natural law theory. The fact that natural law was influential until the 19th century means that this jurisprudence could not have evaporated in an instant. It does not simply mean that there was a transitional period. There may be remnants of natural law in today’s international legal system, and they may still be affecting it. Therefore, an understanding of natural law may be necessary to deeply examine the limitations of today’s international legal system.

Cyber-attacks and the right of self-defense: a case study of the Netherlands

Whilst Article 51 of the UN Charter as a rule indicates that an “armed attack” may trigger a State’s right of self-defense, the actual purport of armed attack remains a matter of interpretation and qualification. To improve the notion of the rule on self-defense and contribute to the jus ad bellum, more clarification as to what constitutes an armed attack in cyberspace is necessary. Therefore, policy norms—regarding when cyber-attacks reach the threshold of an armed attack—could guide State behavior. On the one hand, these policy norms could be used in the political decision-making processes for States that consider initiating cyber-attacks. On the other, they could help victim States in their decision-making processes in response to grave cyber-attacks. The aim of the paper is to propose a tangible guideline that outlines when cyber-attacks—perpetrated solely in or through cyberspace and not in conjunction with conventional military attacks—can qualify as an armed attack. By assessing the positions of States and leading academic opinions regarding the qualification of cyber-attacks as armed attacks, and applying international and interdisciplinary policy documents to transfer the legal debate into tangible options, a policy framework is deduced that can serve as a baseline for international cyber norms. This framework distinguishes three separate categories of armed attack in cyberspace, each with their own distinctive levels to determine when a cyber-attack can qualify as an armed attack. These absolute levels are tailored for the Netherlands but could also be suitable for other States when transferred to percentages of the gross national/domestic product and the population size.

Searching for on-site nuclear balance against North Korea

As North Korea succeeds in developing hydrogen bombs, ICBMs, and SLBMs capable of destroying U.S. cities, the current U.S. extended deterrence may not work. The United States must empower South Korea with a nuclear option to exercise its right of self-defense by prescribing an on-site nuclear balance. This article presents and compares two options for the United States: (1) South Korea’s nuclear armament and (2) another nuclear sharing system in Northeast Asia. As a result, this article recommends the second option with sea-borne sharing and incremental implementation.

Grounds for Territorial Changes in International Law

In the past, territories were often acquired through war and conquest, but modern international law offers other methods for gaining territory without using force. The UN Charter, which serves as evidence of this, includes a principle that prohibits the use of force against the territorial integrity or political independence of any state and also includes the right of self-defense for nations in the event of an armed attack. This is outlined in Article 2 point 4 and Article 51 of the Charter.

The targeted killing of Qasem Soleimani: A case study through the lens of jus ad bellum

AbstractAt dawn on 3 January 2020 local time, the United States targeted and killed Iranian General Qasem Soleimani, which it claimed was an exercise of its right to self-defense. In this analysis, we will examine this operation through the system of jus contra bellum. The airstrike was conducted against a military official of a state, which differs from ‘traditional’ targeted killings, that mostly target members of non-state actors. We will pay particular attention to the antecedents of the attack, as well as the legal reasoning of the United States and the reactions of the international community. The case study will use a critical approach to analyze the claims made in support of the exercise of the US right of self-defense, in particular their lex lata justification. The study concludes that the targeted killing of General Soleimani was unquestionably illegal under the jus ad bellum regime of international law, as the United States was not the victim of an armed attack prior to the operation.

NON-FORCIBLE MEASURES AND THE LAW OF SELF-DEFENCE

AbstractThe right of self-defence is usually presented as an exception to the principle of non-use of force. Conventional wisdom therefore holds that the right of self-defence can only be relied on to justify those measures constituting a threat or use of force. This article rejects that claim. It argues that self-defence is a general right under international law and, as such, can be invoked to justify all measures necessary to repel an armed attack regardless of whether they are forcible or non-forcible in nature. To support this argument, this article examines the genesis of the right of self-defence under customary international law, the text of Article 51 of the United Nations Charter, the structure of the United Nations Charter and State practice on Article 51.