Departmental Bulletin Paper Interdependency between ‘Primitiveness’ and ‘Change’ in International Law: International Law of Self-Defence and the Overuse of ‘Exception’ after September 11

Watanuki, Ryo

(80)  , pp.37 - 65 , 2015-09-30 , 国際基督教大学
This paper examines the legal debates concerning the right of self-defence after the attacks of September 11, 2001. Historically, the right of self-defence has been employed to legitimise the use of force in accordance with necessity. The general prohibition of war after the First World War has made the concept of self-defence a legitimate response to illegal use of force namely the war of aggression by an aggressor state. However, the UN Security Council authorises its member states to use their military forces against terrorists immediately after the event of September 11. From a legal point of view, this decision raised a fundamental question whether the event was crucial enough to transform the legal principle of the right of self-defence. Many international lawyers have discussed the issue only to find that the debate is a ‘never-ending story’ (Quéntivet 2005). Contrary to these struggles of international lawyers, some political theorists assume that the international response against terrorism illustrates the limitation of liberalism as a foundational principle of international order. They criticise that to legitimise the War on Terror paradoxically results in justifying recourse to violence in the name of protection of liberty. This paper exploresthe legal possibility of identifying ‘change’ in international law by investigating the historical development of the right of self-defence. This paper argues that legalists’ inability of recognising change in international law is attributed to their relative neglect of the ‘primitiveness’ of international law. This paper proposes to focus more on the latter in order to perceive the structure of international politics more correctly.

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