From Brownlie to Brandom: Recollective Stories of the Right of Self-Defense and a Theory of the Pragmatic Semantics of Legal Conceptual Change

[Dr Nehal Bhuta holds the Chair of Public International Law at the University of Edinburgh. Dr Rebecca Mignot-Mahdavi conducts postdoctoral research in international law at the T.M.C. Asser Institute (University of Amsterdam). Twitter: @RMignotMahdavi] 

[This is a summary of the arguments developed in: Mignot-Mahdavi, Rebecca and Bhuta, Nehal, “Dangerous Proportions: Means and Ends in Non-Finite War”, Asser SSRN Research Paper 2021-01, February 22, 2021, Forthcoming in: Bhuta, N., Hoffman, F., Knuckey, S., Megret, F. & Satterthwaite, M. (eds.) The Struggle for Human Rights: Essays in Honour of Philip Alston (OUP, 2021). Available at SSRN: https://ssrn.com/abstract=3790612]

Photo credit: Friends Committee on National Legislation

The re-articulation of the right of self-defense by some states active in the war on terror entails a set of interconnected legal propositions that cumulatively engender a highly permissive framework. This set of propositions, which we call the revisionist framework, entails the following basic claims, which are now quite well known: It can be summarized in three propositions: (i) that non-state armed groups can commit armed attacks, enlivening the right to use force in self-defense against the non-state armed group on the territory of another state, even though (ii) the territorial/host state does not effectively control the non-state armed group, but may have failed in its duties of due diligence in constraining the functioning of the group on its territory, due to connivance (unwillingness), negligence or incapacity (inability) because its authority does not extend to those parts of the territory in which the armed group operates, and (iii) the extent and nature of force used in self-defense must be necessary and proportionate to the nature of the threat posed by the armed group and individual members, but necessity and proportionality can have a concertina-like quality – at times focusing on the threat posed by particular individuals, and at other times encompassing the overall animus of the armed group, its hostile intentions, and its general capacity to continue to act.

This set of propositions supports the preventive, extraterritorial, use of lethal force against individuals and non-state groups, with a geographically and temporally expansive scope. This permissive version of self-defense is neither lex lata nor even de lege ferenda, but it nonetheless has practical consequences on how force is used and on the international legal order. Today, what was initially a tactic of targeted killings has arguably become thoroughly normalized – including through the revised version of self-defence – as a means to pursue a temporally and geographically extended military strategy against certain Islamist armed groups.

While this framework is not the law as it stands, it participates in a blurring and expansion of the boundaries and application of the relevant legal rules. It has also supported the normalization of drone wars. It is supported in some scholarly work and has gained influence not just in the US but also in the UK, Australia and France. Overall, it has provided a sophisticated framework for what we call in our longer paper, an asymmetrical jus ad bellum.

Some have chosen to argue against this version of self-defense as erroneous and departing from the ‘old days’ when the law was allegedly certain – that is, when the law required, among other elements, a high threshold of effective control by the territorial state over the non-state armed group. Others have chosen to compartmentalize the set of criteria composing the right of self-defense, and defend or reject them individually (thereby somehow omitting their interconnectedness). Others prefer to focus discussions on customary international law and on whether the different aspects of the revisionist framework can be considered as custom.

Building on Robert Brandom’s Hegelian account of the determinateness of legal concepts [a more technical and detailed account can be found in the paper], we frame this version of self-defense as a historically-embedded process of determination of a new content of the norm. The development of the U.S. targeted killings practice and drone program is a process that has consolidated over time; and it was stabilized through the creation of structures and bureaucratic interactions, but also through a highly legalistic mode of justification that has influenced allies to adopt similar practices – the UK and France among others. For this normalization to happen, a handful of states have navigated the semantic frame of certain legal concepts, including the right of self-defence.

Recent literature on the right of self-defence, as Tams recently noted, gives the wrong impression that there used to be a clear and certain interpretation of the relevant concepts’ application in the past and that the newly proposed framework departs from it. Distinguishing ourselves from this assumption of truth or certainty, we argue that certain stories about the content of self-defense are, if not certain in a transcendental manner, at least stable at certain points in time. In other words, this new version of self-defense does not deconstruct the correct, unique version of self-defense but is the product of a historical change, a departure from the right of self-defense as framed by Brownlie when he writes in 1963 and that crystallized as the predominant one in the context of decolonization.

Building on this understanding of norms’ evolution, one can further explore how concepts structure legal relationships and, hence, how conceptual revisions bring with them a reconfiguration of these relationships. In the case of self-defense, the use of “proportionality” under an asymmetrical relationship between recognized public powers and organized groups of hostile individuals, risks becoming a license for an unending “police action” in the territory of other states burdened by a limited territorial sovereignty. Such a concept of proportionality revives a limb of the jus ad bellum – the right to self-preservation – deemed to have atrophied, if not entirely disappeared, since 1945. In the 1963 book that would become a locus classicus of the ‘restrictionist’ interpretation of the use of force in the UN Charter, Ian Brownlie made an exhaustive argument for reading the UN Charter as reflecting and developing customary international law in a manner that restricted the permissible use of force to narrow readings of grounds found in the Charter (self-defense and Security Council authorization). Of particular concern to Brownlie, writing in the aftermath of the Suez Crisis, was to refute the continued possibility of reliance of pre-Charter rights to use force under concepts such as the right to self-preservation, intervention and necessity.

Regarding self-defense, Brownlie places great weight on the principle of proportionality as giving some measure of objective content to uses of force that traverse the boundary between the concepts of self-defense and self-preservation. Brownlie appears to have concluded that the presence of hostile armed groups on the territory of another state, was shown by history to be too tempting and promiscuous a casus belli to persist unamended. Brownlie reaches for proportionality as a restraining concept against such temptations:

It is possible in a very limited number of situations that force might be a proportionate reaction where there is unequivocal evidence of an intention to launch a devastating attack almost immediately. However … to commit a state to an actual conflict when there is only circumstantial evidence of an impending attack would be to act in a manner that disregarded the requirement of proportionality. (p. 259)  

Using force against ‘indirect aggression’ by armed groups operating on the territory of another state can be derived from Article 51 only if the conduct of the armed groups is attributable to the state from the territory of which they act, “if the requirement of proportionality is to be strictly observed”. The exact relation between proportionality and attribution is not made explicit, but read as whole, his argument rests on an intuition that the symmetry of forms and statuses entailed in state-to-state interactions (even hostile ones) is in some sense a limiting one: states treating each other as enemies with equal rights, not as criminals or outlaws, is a constitutive element of the meaning of proportionality.

The essential logic of this position was taken up by the emerging Third World bloc of states in the 1960s, which sought to constrain the interventionist potential remaining within the concept of self-defense. Reflecting in 1962 on the “contemporary attitudes of newly independent states toward the rules of international law,” Georges Abi-Saab noted that for decolonized states long subject to ‘domination or intervention’ by other states, “sovereignty is a hard-won prize of their long struggle for emancipation … the doctrine of sovereignty is resorted to more readily by these countries to bar intervention by other states.” Decolonized states’ efforts to shape the content of international law unsurprisingly focused on United Nations fora “where their voices can be heard and where they have scope for concerted action.” The concern to constrain unilateral intervention, both military and non-military, by Western states, was framed by recent and ongoing wars of decolonization against colonial powers such as France, the UK, Portugal, South Africa, and the continuing practices of intervention in self-declared spheres of influence by Cold War rivals and former colonizing states (such as the Belgian intervention in the Congo). At the same time, newly independent states sought to use the General Assembly to strengthen the content of sovereignty and non-intervention to exclude forms of political and economic coercion and more expansive justifications for the use of force, drafting and passing a battery of resolutions whose titles displayed their normative ambitions: The Declaration on the Granting of  Independence to Colonial Countries and Peoples (1960), the Declaration on Permanent Sovereignty over Natural Resources (1962), and the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty (1965). In 1967, the General Assembly also voted to establish a Special Committee on the Definition of Aggression. Commencing in 1963, the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States would meet in parallel to these developments, throughout the 1960s, and draft the Declaration on Friendly Relations as an attempt to authoritatively state certain key principles of international law. Taken as a whole, these texts reflect a ‘revolutionary’ attempt by decolonizing states to recast, through General Assembly-led processes, the content of constitutive norms of international law in a manner that articulated their concerns: reinforcing sovereign equality and discrediting foreign intervention, amplifying self-determination as an expression of sovereignty and national political and economic authority, and promoting a solidarist vision of cooperation between and on behalf of states that had come into being as representing peoples and territories previously dominated through colonialism and imperialism.

Brownlie’s intuition that proportionality and the symmetry of state-to-state interactions are interdependent resonates today with the metamorphosis of the principle of proportionality under the revisionist framework. We argue in our paper that under the asymmetrical jus ad bellum, the proportionality requirement is not just extended: its content and shape shift. Indeed, the temporal and material changes of self-defense transform what is meant by necessity and proportionality: if there is no identified armed attack in relation to which force should be necessary and proportional to use force against Islamist terrorist groups, these requirements cannot be based on such an attack. The tests are de facto impossible to conduct in relation to tangible or at least identified or expected material circumstances. Thus, the change from a material use of self-defense (i.e. to halt and repel an identified attack or restore a status quo ante) to an individualized self-defense (i.e. to eliminate an individual posing a continuing imminent threat) means that the requirements of necessity and proportionality are not just affected in scope like the other limitations to self-defense but rather in nature.

This metamorphosis leads to a troubling situation where the norm is reconfigured and where it hardly regulates conduct. To talk about recollective stories is a way to reframe the discussion on these evolutions and the different interpretations of the norm available in the norm’s semantic frame. It allows to unpack how norms’ semantic frame bring about conceptual revisions that reconfigure legal relationships. It also emphasizes that even in the event of crystallization of a norm’s content at a certain point in time, controversies (or, rather, their potential) never disappear.

The historical and pragmatic conditions of norms’ content determination are particularly salient in international law in the absence of a single authoritative organ. Our framework, building on Robert Brandom’s account of the determinateness of legal concepts, offers a paradigm to understand how norms gain or lose content over time. Of course, this framework is not aimed at telling us which interpretation of the norm is “right” or desirable. Rather, it is an invitation to analyze norms’ evolution in the interaction of conceptual change and history;  customary international law reflects the results of this evolution, but our theories of custom arguably do not allow us to readily capture this interaction of concepts and history that lies beneath.