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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/35753 |
| Date | 16 February 2022 |
| Creators | Kisla, Atilla |
| Contributors | Powell, Cathleen |
| Publisher | Faculty of Law, Department of Public Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Doctoral Thesis, Doctoral, PhD |
| Format | application/pdf |
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