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Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors
The attacks of 9/11 constitute a crucial point in the development of the right of self-defence against a non-state actor in customary international law. More and more states used force against non-state actors while claiming their right of self-defence in the post-9/11 era. Situations such as the US...
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| Format: | Thesis |
| Language: | English |
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Department of Public Law
2022
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| _version_ | 1867613181447241728 |
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| access_status_str | Open Access |
| author | Kisla, Atilla |
| author2 | Powell, Cathleen |
| author_browse | Kisla, Atilla Powell, Cathleen |
| author_facet | Powell, Cathleen Kisla, Atilla |
| author_sort | Kisla, Atilla |
| collection | Thesis |
| description | The attacks of 9/11 constitute a crucial point in the development of the right of self-defence against a non-state actor in customary international law. More and more states used force against non-state actors while claiming their right of self-defence in the post-9/11 era. Situations such as the US fight against the Taliban in Afghanistan, Russian attacks on Chechen fighters in Georgia or the fight against ISIS in Syria raise the question of whether the customary right of self-defence is still unchanged. While most of such situations were considered unlawful uses of the right to self-defence, this thesis focuses on the question of whether customary international law in this respect has evolved to allow for some of such uses of force. Building on a discussion of the theoretical framework of the formation of custom, this thesis examines traditional as well as non-traditional approaches to the elements of state practice and opinio juris. I then analyse the widely held view in the scholarship that the customary right to self-defence has not changed. As I identify weaknesses of such examinations of the customary right of self-defence, this thesis examines an alternative approach to the formation of custom. As an alternative, I discuss the applicability and requirements of the doctrine of specially affected states and re-examine the situations from the 21st century when states exercised their right of self-defence against non-state actors. The thesis argues that, if one were to apply the doctrine of specially affected states, one can argue that the customary right of self-defence against non-state actors has changed. To prevent abuse of such an interpretation, I discuss to what extent opinio juris or other sources of international law could limit such a formation of custom. In the example of the right of self-defence, this thesis analyses to what extent a re-interpretation of the element of opinio juris is required and how concepts like jus cogens or general principles of international could be employed as limiting factors to such a formation of custom resulting from the doctrine of specially affected states. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/35753 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:32:03.909Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2022 |
| publishDateRange | 2022 |
| publishDateSort | 2022 |
| publisher | Department of Public Law |
| publisherStr | Department of Public Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/35753 Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors Kisla, Atilla Powell, Cathleen Public Law The attacks of 9/11 constitute a crucial point in the development of the right of self-defence against a non-state actor in customary international law. More and more states used force against non-state actors while claiming their right of self-defence in the post-9/11 era. Situations such as the US fight against the Taliban in Afghanistan, Russian attacks on Chechen fighters in Georgia or the fight against ISIS in Syria raise the question of whether the customary right of self-defence is still unchanged. While most of such situations were considered unlawful uses of the right to self-defence, this thesis focuses on the question of whether customary international law in this respect has evolved to allow for some of such uses of force. Building on a discussion of the theoretical framework of the formation of custom, this thesis examines traditional as well as non-traditional approaches to the elements of state practice and opinio juris. I then analyse the widely held view in the scholarship that the customary right to self-defence has not changed. As I identify weaknesses of such examinations of the customary right of self-defence, this thesis examines an alternative approach to the formation of custom. As an alternative, I discuss the applicability and requirements of the doctrine of specially affected states and re-examine the situations from the 21st century when states exercised their right of self-defence against non-state actors. The thesis argues that, if one were to apply the doctrine of specially affected states, one can argue that the customary right of self-defence against non-state actors has changed. To prevent abuse of such an interpretation, I discuss to what extent opinio juris or other sources of international law could limit such a formation of custom. In the example of the right of self-defence, this thesis analyses to what extent a re-interpretation of the element of opinio juris is required and how concepts like jus cogens or general principles of international could be employed as limiting factors to such a formation of custom resulting from the doctrine of specially affected states. 2022-02-18T09:32:48Z 2022-02-18T09:32:48Z 2021 2022-02-16T15:42:25Z Doctoral Thesis Doctoral PhD http://hdl.handle.net/11427/35753 eng application/pdf Department of Public Law Faculty of Law |
| spellingShingle | Public Law Kisla, Atilla Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors |
| thesis_degree_str | Doctoral |
| title | Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors |
| title_full | Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors |
| title_fullStr | Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors |
| title_full_unstemmed | Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors |
| title_short | Two or more wrongs make a right? – The evolution of the customary right of self-defence in the post 9/11 era, and the effect of ‘unlawful' state behaviour on the formation of custom on the right of self-defence against non-state actors |
| title_sort | two or more wrongs make a right the evolution of the customary right of self defence in the post 9 11 era and the effect of unlawful state behaviour on the formation of custom on the right of self defence against non state actors |
| topic | Public Law |
| url | http://hdl.handle.net/11427/35753 |
| work_keys_str_mv | AT kislaatilla twoormorewrongsmakearighttheevolutionofthecustomaryrightofselfdefenceinthepost911eraandtheeffectofunlawfulstatebehaviourontheformationofcustomontherightofselfdefenceagainstnonstateactors |