Academic journal article Australian International Law Journal

State Responsibility and Self-Defence in International Law Post 9/11: Has the Scope of Article 51 of the United Nations Charter Been Widened as a Result of the US Response to 9/11?

Academic journal article Australian International Law Journal

State Responsibility and Self-Defence in International Law Post 9/11: Has the Scope of Article 51 of the United Nations Charter Been Widened as a Result of the US Response to 9/11?

Article excerpt

In the aftermath of 9/11, there has been a general consensus that an armed attack of sufficient gravity is still a requisite element to establish the right of self-defence in international law. Debate has however surrounded the level of state responsibility required to invoke this right. It has been suggested that a new threshold has arisen post 9/11 and that state responsibility now encompasses the 'harbouring' of non-state actors. The author examines this argument in light of the international community's support for the US response to 9/11, the two Security Council Resolutions affirming the right and State practice post 9/11. The author then proposes a suitable threshold of state responsibility appropriate for today's threats.

Introduction

Six years following the terrorist attacks of September 11 2001 the images of that day still resonate in the international community, while the United States' response in apparent self-defence against the attacks has fuelled the current debate about the scope of the right of self-defence in international law. The prohibition on the use of force in international law is paramount to the preservation on the use of force in international law is paramount to the preservation of international peace and security. article 51 of the United Nations Charter ('UN Charter') gives States a right to defend themselves against an armed attack, and is one of only two exceptions to the prohibition on the use of force in article 2(4). (1) Not many States have in the past resorted to article 51 to justify responses to terrorist attacks. (2) Traditionally, in order for a State to resort to armed force in self-defence, it needs to demonstrate that it has suffered an armed attack to sufficient gravity, and for which another State is responsible. (3) In terms of a terrorist attack, the settled law at present states that the level of State responsibility verges on that State having an active role in supporting the terrorist group responsible, that is, the State against which force will be used needs to have been an active participant. (4)

This view however has recently been challenged. Following the September 11 2001 terrorist attacks in New York and Washington (hereafter 9/11), the United States, claiming to be exercising its right to self-defence, (5) launched 'Operation Enduring Freedom' (6) in Afghanistan, declaring that the 9/11 attacks were made possible 'by the decision of the Taliban regime to allow parts of Afghanistan that it controls to be used by Al-Qaeda as a base of operation'. (7) This claim alluded to passive, rather than active support by the Taliban, and such justifications for the use of force in self-defence were in the past met with condemnation from the international community. (8) The US justification was however seemingly met with approval by the international community, with the Security Council passing Resolutions 1368 and 1373 condemning the 9/11 attacks and reaffirming the right of self-defence.

As a result of the two Security Council resolutions and the overwhelming support of the international community, it has been suggested that the scope of self-defence under article 51 has become wider with respect to the level of state responsibility required to attribute the acts of terrorists to a State which supports them. (9) Many arc now suggesting that active participation by a State is no longer the required standard, and that States which 'harbour' terrorists make themselves subject to the use of force in self-defence by the victim State. (10)

When one considers that the prohibition on the use of force in the UN Charter has at its core the protection of the international community against die ravages of war through the preservation of international peace and security, any arguments as to the widening of the scope of the right of self-defence should be carefully examined. Part one of this paper provides a brief overview of the right of self-defence under the UN Charter. …

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