Dear Nicholas, 

As this is a boundary discussion forum, it is probably better for us to shift to a different forum to discuss use of force issues jus ad bellum.

In sum, I would suggest that 4 of 5 permanent UNSC members (Russia, UK, France, and the US) have all used force against nonstate threats  numerous times without criticism and often with support. 

The criticism, when it comes, has not been over the right of self-defense against nonstate actors per se, but rather over jus in hello issues of necessity or proportionality. No country has alleged T the UNSC that Israel does not have a right of self-defense against nonstate threats...criticism is over how it was done (e.g. Proportionality).

Again, I refer you to writings by Monica Hakimi at U Michigan law school if you want to go deeper. 

After you have read her work and still want to discuss, please email me directly.

Best, James

Sent from my iPhone

On Oct 9, 2015, at 3:02 PM, Nicolas Boeglin <[log in to unmask]> wrote:

Dear James

Many thanks for your kind message and references of authors you mentionned

Customary international law is derived from State practice, indeed, and general acceptance of these norms by international community: I´m not very sure the two States you choose ( Israel and US ) and their respective military operations benefit of general acceptance ( in part due to strong condemnation of theses operations by many others States).

If I folllow you correctly, another intepretation of self defense as  "preventive self defense" (argued by Israel to bomb Osirak nuclear reactor in 1981,  by US to justify military intervention  in Irak based on Mass Destructions Weapons that never appeared, and by other States in other military adventures...) would also be, in your view, considered as customary international law?

SIncerely yours

Nicolas Boeglin

Note:  Concerning self defense under Article 51 and Israel, in 2004 ICJ decision, self defense argument presented by Israel to justify the construction of the Wall in Palestinian Territories is considered by IC as following:

"Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case" (Paragraph 139, of 2004 Advisroy OPinion available at

http://www.icj-cij.org/docket/files/131/1671.pdf


 

2015-10-09 15:25 GMT-06:00 James Kraska <[log in to unmask]>:
Customary international law is also derived from State practice, and there are ample examples, but here are two:

-Israeli operations against Hezbollah ( only criticized on proportionality, not nonstate status)

- US in Afghanistan 

See articles by Ashley Deeks or Monica Hakimi

Sent from my iPhone

On Oct 9, 2015, at 11:22 AM, Nicolas Boeglin <[log in to unmask]> wrote:

Dear James and colleagues

Many thanks for your kind message.

I understand that there are many threats in the world, some of them "continuing" as you mentionned. 

But  I always thought that a State can argued self defense based on Art.51 only in case of agression: the definition agreed of agression in Kampala in 2010 (many years after 11/9, as you know) do not refer to non states actors acts. The position of ICJ is also extremely strict with regard to the interpretation of Art. 51, even in its decisions after 2001.

Sincerely yours

Nicolas Boeglin

2015-10-08 14:05 GMT-06:00 James Kraska <[log in to unmask]>:
Hello

I don't see these interpretations as peculiar.

After 9/11, states may exercise self defense against nonstate actors. As ISIS is a continuing threat to France and the U.K. and their allies, they may defend themselves individually and collectively.

Best, James

Sent from my iPhone

On Oct 8, 2015, at 12:16 PM, Nicolas Boeglin <[log in to unmask]> wrote:

Dear colleagues of IBRU

Please find a short note on recent protest from Turkey concerning violations of its airspace by Russia: at the end official statement by Turkey - in english -  made public yestreday

http://derechointernacionalcr.blogspot.com/2015/10/reaccion-oficial-de-turquia-vuelos-de.html

A few weeks ago, France have argued that its first airstrikes of Sept. 27 in Syria were based on Article 51 of UN Chart (self defense); British officials with respect of its first targeted strike with a drone of Sept 7, killing three suspects, also referred to "self defense".

Maybe a distinguished colleague teaching international law of this list could help us to understand if these very peculiar interpretations of Art. 51 of UN Chart open a Pandora box for future military adventures or can be considered a positive progress for international law.

Sincerely yours

Nicolas Boeglin