Yip: To Call a Spade a Spade: Use of Force Depriving a People of their Right to Self-Determination as Violation of Jus Contra Bellum

Ka Lok Yip (Hamad Bin Khalifa Univ.) has posted To Call a Spade a Spade: Use of Force Depriving a People of their Right to Self-Determination as Violation of Jus Contra Bellum (Journal on the Use of Force and International Law, forthcoming). Here's the abstract:

This article argues that a use of force which deprives a self-determination entity (‘SDE’) of its right to self-determination is prohibited under both Article 2(4) of the UN Charter and customary international law, even if there may not be sufficient practice accepted as law (opinio juris) to establish that such forcible deprivation of a SDE’s right to self-determination constitutes an armed attack that entitles the SDE to the right of self-defence. The obfuscation between a prohibited use of force and an armed attack triggering the right to self-defence often fans the escalation of conflict involving a SDE which claims the right to use force in self-defence (an issue discursively over-emphasized but not actually regulated under jus contra bellum) against the original use of force which deprives the SDE of its right to self-determination (an issue discursively under-emphasized but actually prohibited by jus contra bellum).

The article also argues that a State’s use of force to occupy or subjugate a SDE to permanently prevent an armed attack from emanating from that SDE does not qualify as lawful self-defence in the absence of an actual or imminent armed attack. Even when a State uses force in the name of self-defence against attacks emanating from a SDE, such use of force cannot satisfy the necessity requirement for lawful self-defence if the State could have taken non-forcible means to avert or stop the attack that emanates from the SDE, notably by relinquishing control over the SDE in discharge of its duty to respect the SDE’s right to self- determination. Where attacks by an armed group originating from a SDE involve serious violations of international humanitarian law (‘IHL’), an argument could be made that the attacks are simply unconcerned with the SDE’s right to self-determination, could not have been averted or stopped by the State relinquishing its control over the SDE and therefore render forcible self-defence necessary. While this argument cannot be precluded upfront, neither IHL provisions nor historical precedents suggest that IHL violations per se would sever the nexus between attacks by an armed group originating from a SDE and the pursuit of the SDE’s right to self-determination.