The legality of extraterritorial use of force against non-state actors without the territorial state's consent

Abstract

This dissertation examines the right of a state to use extraterritorial defensive force against a non-state actor without the territorial state?s consent. Article 51 of the United Nations Charter provides states with the right to unilaterally use defensive force but only after an armed attack has occurred. This right of self-defence is narrow and does not provide adequate protection to states facing an imminent threat. Fortunately, the right of self-defence is an inherent right that predates the Charter. Indeed, in terms of customary international law, states have the right to defend themselves before a threat materialises, provided the principles of necessity and proportionality are met. Article 51 makes no mention of the identity of the attacker. This is because the only relevant element of the right of self-defence is the gravity of the armed attack not the nature of the attacker. Indeed, despite the International Court of Justice?s interpretation of article 51, the attacker can be any subject of international law. In the case of an attack by a non-state actor, attribution to a state is not required for the right of self-defence to be valid. However, since non-state actors often operate from the territory of another state, the defending state must attempt to obtain the consent of the territorial state. If consent cannot be obtained, the territorial state?s right to sovereignty and territorial integrity must be balanced with the defending state?s right of self-defence. Current state practice demonstrates that this balance is increasingly leaning tipped in favour of the right of self-defence. Unfortunately, states have yet to unite around clear legal standards governing the right to use extraterritorial force against non-state actors. This dissertation provides recommendations aimed at bridging the gap between the current state practice and the legal norms on self-defence.