19TH ANNUAL ANZSIL CONFERENCE - THE PROMISE AND LIMITS OF INTERNATIONAL LAW – 23-25 JUNE 2011 CANBERRA, AUSTRALIA

INTERNATIONAL LAW AND THE REGULATION OF VIOLENCE: SHIFTING PERCEPTIONS OF THE LEGITIMACY OF THE JUS AD BELLUM?Andrew Garwood-Gowers – Faculty of Law, QUT

Overview

The concept of legitimacy Legitimacy and the jus ad bellum Features of recent state practice in the

‘war on terror’:1. failure to provide legal justifications2. apparent lack of concern over

legalityShifting perceptions of legitimacy of the jus ad bellum?

The concept of legitimacy

Hurd’s definition: ‘an actor’s normative belief that a rule or institution ought to be obeyed’

A perception based on the substance of a rule or its source or process of formation

Norm internalization and socialisation Methodological difficulties in assessing

states’ perceptions

Legitimacy and the jus ad bellum Post-Iraq debate: ‘Realists’ vs. ‘Liberals’ State rhetoric and legal discourse as

indicators of states’ perceptions of legitimacy

Recent state practice

Post-2006 incidents in ‘war on terror’: Israel-Syria (2007 airstrike on Syrian nuclear

facility) Israel-Sudan (2009, 2011 airstrikes) Turkey-Iraq (2008 incursions targeting PKK) Ethiopia-Somalia (2006-2008 intervention)

2 significant features:1. Failure to offer explicit legal

justifications/report use of force to Security Council

2. International community’s apparent lack of concern over legality of uses of force

Interpretations and implicationsShifting perceptions of legitimacy? - ‘realist’ interpretation - ‘war on terror’ and ‘unequal sovereigns’ - natural development of customary international law