Also to the other Kurt convenors of the guy discussion group and discussion group.
And in addition to Professor Knock on there and Professor Katherine Ventrell,
who I think have also being part of extending this invitation to us, it's really a pleasure to be here.
We are going to proceed as follows. I think Rebecca will take the floor first to outline some of the key dimensions of the paper.
And I will follow up with some points that she doesn't address.
We hope to be able to speak for thirty, forty five minutes and then tax much time as possible for questions.
So I'll hand over directly to Rebecca. Thanks a lot, Annie Hall.
And I join myself to your thanks. We are delighted to be here and to see also some familiar faces in the audience.
Thanks, everyone, for for joining. So the context.
Oh, I cannot share my screen in the end. If you are.
I guess if I'm Kahootz, then this solves the issue.
Yes, I think. Thank you so much. OK, great.
So the context of them, of the paper is that of counter-terrorism since 9/11 and the practise of targeted killings of suspected terrorists.
As you know, the development of the U.S. targeted killing practise and the drone programme is a process that has
consolidated over time and that has been stabilised through the creation of bureaucratic infrastructures,
but also through highly legalistic mode of justification that has influenced also allies to adopt similar practises and similar legal narratives.
The U.K. and France on on some aspects of it. So today,
what has what was initially a tactic has arguably become thoroughly normalised as
the means to pursue extended military strategy against certain Islamist groups.
So we take a look at the basis of this paper, which is part of a collected volume, collected volume in honour of Philip Alston.
We we start with his intuition in 2010 and his report, 22 was U.N. special rapporteur on targeted killings.
That there is a displacement of clear legal standards with a vaguely defined licence to kill and the creation of a major accountability vacuum.
So for for this normalisation to happen that I was mentioning for for starters,
a handful of states have navigated disavow mantic frame of certain legal concepts.
And here in this paper, we focus on the right of self-defence.
So the US, Australia, the UK and France interpretation of the right of self-defence, what we call in the paper,
the revisionists framework leads to a troubling situation where the norm is reconfigured and where it hardly regulates conduct.
If we follow this revisionist framework in the paper,
we distinguish ourselves from the view that the revisionist framework departs from the old days where the law was allegedly certain.
That is when the law required a high threshold of effective control, for instance, by the territorial states over the non-state armed group.
And instead. And this will be developed by Professor, what we build on Robert Brenden's Hegelian account of the determinant ness of legal concepts to
identify the revisionist framework as a concept of self-defence that is historically embedded.
So in this chapter, we show that these conceptual revisions bring with them a reconfiguration of the structure of legal
relationships presupposed by the use of Belgium's concept of proportionality and the new determinists,
which renders the concept more permissive than constraining.
So before delving into this conceptual analysis of the evolution of how the norms content is determined with me,
how I wanted to share with you them re collective stories of the right of
self-defence that we trace in the paper before reaching the way it is framed today.
What we call the provision is framework, which is a chain we show are of interconnected prepositions.
And of course, a disclaimer for starters, we do not claim that the revisionist framework is the law as it stands, it's not at all.
The goal of the paper. But we we claim that it is fair to say that it participates in the blurring and expansion of the
boundaries and application of the legal framework that it has supported a normalised drone wars.
And it's fair to say, at least in some aspects and on some parts of the revisionist framework,
that it is supported by some scholarly work, but also by other states like the U.K., Australia and France.
And we show that this chain of prepositions is a chain of interconnected and interdependent
prepositions that affect one another as a cascade effect through a cascade effect.
So to to guide you through this chain of prepositions, for starters, we have a Russian,
a person, a limitation in this revisionist framework that includes armed attack,
armed attacks perpetrated by non-state actors with the loose link of attribution that the
whole state is unwilling or unable to address the threat posed by these non-state actors.
This, we show, has it a direct incidence on the Russian name Matari limitation of self-defence as this first move towards
and winning enable invites us to include the modes of action of these specific non-state actor groups,
one which is said to be dispersed and difficult to victory lies and anticipate at least which we.
We consider that this led states to articulate an extensive version of the accumulation doctrine,
one that goes beyond the accumulation doctrine defined according to which a series of
minor incidents taken together can be said to reached the threshold of an armed attack.
The revision is framework proposes that we can infer from a series of past events that
the threatening group carries or has the capacity and intention to carry future attacks.
The second step.
Also has an impact on the rational temporaries limitation of self-defence and brings us to move towards not éminence in the restrictive sense that,
as you know, the threat is instant, overwhelming,
leaving no choice of means and no moment of deliberation, but towards a permanent imminence of the threat derived from,
again, this series of past events that tell the tells us that members of a group pose a continuing imminent threat.
This, of course, in the last instance also has a direct effect on the rationing can conditioner's limitations of self-defence,
necessity and proportionality. In fact, the cascade effect we consider culminates into a metamorphosis of those limitations of self-defence.
So the temporal and material changes that we describe of self-defence automatically transform what is meant by necessity and proportionality.
So in other words, if there is no identified armed attack in relation to which a material test of proportionality can be conducted,
then the test is de facto impossible to conduct.
So a change from a material use of self-defence to halt and repel an identified attack to an individualised self-defence,
one that aims to eliminate an individual opposing a continuing imminent threat means
that the requirements of necessity and proportionality are not just affected in scope.
Like the other steps that we went through together, the three first ones, but in nature.
So the principle of proportionality,
rather than being a test of whether the threatened state had no other means to halt the attacks other than the recourse to this scale of armed force.
Is it a test where this scale of armed force was, let's say,
the only means to weaken the group or diminish or halt the threat more generally posed by the group or the individual as part of this group?
So when navigating through recent literature on the right of self-defence as a Christian Time Times recently noted,
actually we get the wrong impression that there used to be a clear and certain interpretation of
the Leavens Concepts application in the past and that this revision is framework departs from it.
So this allegedly certain interpretation is, as I said,
one where a high threshold of effective control by the territorial state over the non-state armed group used to be
necessary to give rise to a right to use force against non-state armed group on the territorial states third degree.
Here we distinguish ourselves from this assumption of of truth or uncertainty.
And we argue that certain stories about the content of self-defence are,
if not certain, in a transcendental manner, at least stable at certain points in time.
So we call it revisionist, not because it's deconstruct the correct unique version of self-defence,
but because it's the product of a historical change,
a departure from the right of self-defence as framed by Brown knew when he writes in 1960, story three.
So when when is writing in nineteen sixty three in the aftermath of the Suez crisis,
he aims with his limitation is to view to articulate a version of the right of self-defence that comes
as an alternative preposition to the right of self-defence as fulfilling projects of self-preservation.
So even if Brownlee's clearly open for argument and this week we describe in
the paper whether certain elements of self-preservation still can continue.
It is fair to say, in our view, that his interpretation crystallises as a stable one in the politics of decolonisation.
So in that context, Brownlee articulates the different limitations of self-defence and puts particular emphasis on the principle of
proportionality as he frames it in a way that allows him to differentiate precisely the use of self-defence,
the use of force in self-defence from the use of force in self preservation.
I think how we'll say more about this, but I can mention briefly at this stage that his argument there rests on an intuition
that proportionality essentially rests on the symmetry of state to state interactions.
So as such, another limitation he uses to constrain the right of self-defence is the higher threshold of connexion,
as I mentioned before, between the non-state armed group and the territory.
And this highest threshold, we continue their what we call the recollected story is what Brownlie pushes for as a council in Nicaragua.
So this does not mean that his version of the right of self-defence,
whether it's the only one available, we recoil in that regard, Barratt's conflicting version of it.
But it is the one that became prominent at this specific point in time,
reflected in the efforts over two decades to promote sovereign equality and to remove the
colonialism and imperialist culture from norms of H.O. efforts that culminated in Nicaragua.
In the Nicaragua decision rendered in 1996 and Pozniak Caraco decision Brownlee's limitation as view accepted by the ICJ,
faced alternative currents that we also go through in our generation of these collective
stories until we finally reached the point where we describe the revisionist framework.
So to talk about collective stories is a way, in a sense,
to reframe the discussion on these evolutions and the different interpretations of the norm available.
So once you start to assemble these stories, we see that new circumstances leads to new determinations which create new possibilities.
And this is where we will conceptually explore now by focussing with me how on Romney's intuition within the Brandon frame.
Now the floor is yours. Thank you.
So thank you very much, Rebecca. So let me, I suppose,
try to step back a little bit from the very sort of helpful layout of the argument that Rebecca has undertaken and
try to maybe put our finger on what we're trying to do in this paper by using these particular theoretical ideas.
So as Rebecca has said,
we we tried to set up a basic comparison distinction between something called the revisionist framework and what came before it.
And the revisionist framework is it is a label.
It's not something that we think is a state of law.
It's a label we give to a constellation or a network of arguments, which when you put them all together, first of all,
seek to rework the legal content of some concepts that are already with us on the tack, attribution, etc.
Self-Defence Éminence. And in addition to that, they seem in an interesting way.
If you look at them as they work as a set of arguments in an interesting way,
they seem to generate new possibilities as to what can be subsumed under concepts like Éminence or attribution.
So in laying that out, what we're trying to get at here is, first of all,
the the relationship between these concepts and that kinds of reasons that
we can use when we argue about whether the concept applies or doesn't apply.
That's what they used that we tried to make of the work of Robert Brandon so that the theoretical point in this paper,
we sort of had a broad brushed historical claim about how to think about the emergence of what we might call now the certainty of old.
And we we showed that to be essentially a historical process whereby a range of possibilities
that were by no means eliminated by the charter in 1945 in terms of the concept of the content,
of the content of concept of self-defence, remained available to states in framing their reasons for the use of force.
But that in the period between 1960 and 1975,
there was a process by which some of these available reasons were narrowed or eliminated from the content of the concepts.
And Brownlie was not singularly responsible for this,
but rather an interesting example of someone whose arguments were very much in sync with what was a sort of epoch making redefinition,
legal redefinition and reshaping of the framework governing the use of force,
essentially through the political process of the General Assembly and the activism of the nascent federal block between 1960 and 1975.
And we traced that through the paper. So our point our basic point here is if you're trying to we should try to understand
something of the origins of the Nicaragua style test for attribution and effective control.
The notion that non-state actor only provides a casus belli in the event that it's attributable to a state
that one needs to retrace the process by which alternative arguments were evacuated from the concept.
And this didn't happen all at once. As we know, it's not clearly there.
As a matter of treaty law, but rather it reflects transformed politics of international relations,
the politics of the membership in particular of the United Nations,
and a legal politics in which these terms were subjected to fairly lengthy and sometimes quite onerous
processes of discussion and negotiation in in and re definition in ultimately non-binding documents.
But documents that carried quite a bit of normative force and became in some ways,
touchstones for the articulation of notions such as aggression and armed attack.
So. What are the broad strokes of what we're trying to point out is once that is in some sense evacuated from some of these concepts?
As a matter of usage in the period nineteen to nineteen seventy five and reaching a kind of crystallisation with Nicaragua in 1986,
I'm not thereby banished for all time. They remain available to states, but they are highly marginal.
And those of us who seem familiar with this, I mean,
I just know the stories of states that have attempted to invoke the right of self-defence directly against non-state actors,
invoking the unwilling and unable test. That is something that does happen between 1965 and 1990.
It's just that overwhelmingly it's met with rejection by other states as being incompatible with the content of the concept.
And the sort of emblematic instance of this is the states reactions to Israel's attack on the PLO in Tunisia in 1986.
However, the story we're telling is it suggests that what happens after 1989 is a rehabilitation, a re-emergence of these threads,
available contents of these concepts which which starts to develop incrementally in ways that think well documented,
for example, by Christian Times and and then accelerate in after 2001.
And the Texas 10 11 and in 2001 moving forward.
In fact, what you see is not just sort of the resurfacing of various arguments about the conditions under
which one might strike a non-state actor in the absence of attribute ability to another state.
But what we see is in some sense, their radicalisation into what we call highly extensive and permissive concepts under,
under, under the revisionist idea. So that's the broad sort of landscape of the argument we're trying to make.
And I just wanted to to we have sort of seven or eight pages rather dense in the frame in the in the paper about Robert Brandon.
And I suppose what I wanted to address in my remarks about this is,
is really just to sort of situate the utility of this as a set of constant sort of theories that help us understand perhaps what we're seeing.
And that's the spirit in which we use Bradham first and foremost.
The basic intuition of of of random and his work is a pragmatic one,
that the determinants of a concept that is that the way in which we know what is within the application of concept and what is outside
the application of the concept is a function of its use in history to know concepts are inherently determinate and clear ex ante.
And that's true in the natural sciences as it is in the social sciences or in law.
The fact that the that the.
The concepts are that are given their boundaries.
In other words,
the conditions under which we can know whether they ever legitimately apply or properly apply to a factual situation or not through the use it.
The range of uses that is available to the person who is applying them.
That's our determinant ness. The boundaries of the concept are a function of its use in history.
But at the same time, it's not reducible to its U.S. history.
I think it's an important distinction for those. We could follow these fairly arcane debates.
In fact, in this theory of language, you know, one of the questions about the relativity of meaning to historical use is, well,
does that mean that the concept applies to the values of the concept or simply given whenever the historical practise changes?
So it's always relative to history, in which case, you know,
an extreme version of this is as soon as a community uses, you see changes in the meaning of the concept changes.
And in some sense, the meaning is fundamentally indeterminate.
The value, I think, for our argument in Branden's framework is that it creates something of a something of a distance between history and meaning.
It says in the first instance, the space of reasons that's available to us in the use of a concept is ultimately given by usage,
by history, by the historical circumstances in which we find ourselves.
Not no meaning is given ex ante and transcendentally.
But at the same time, once we start to use a concept and we start to use a concept,
we we necessarily have to start applying it in terms of what is included in what is excluded.
What is an extension of the concept? As a matter of inference.
And what is incompatible with the concept as a matter of inference and this logical
relationship which is connected to the semantics of the concept is in some sense,
if not completely reducible to its any given historical use.
So for our purposes, Branom is interesting.
Essentially for to underline two points that if you wish to understand the space of reasons that is available to you when you are using a concept,
it's not really very useful to go to pure logical relationships.
Spaces of spaces, of concepts are spaces of reasons.
And that's in doubt to us by history, by the moment we are in time.
At the same time, as we act in a moment to apply a concept, it's not an infinite variety of historical possibility.
It's not whatever we choose to do with the concept at that moment,
but rather the boundaries of the concept are in some sense shaped also by the logical possibilities of the concept.
And those logical possibilities rest on concrete relationships that are given to us by the circumstances in which we use the concept.
So all of this is to say that the value in our estimation, the utility, the usefulness.
We're not we're not sort of interested in being, you might say, analysing Brandon for his own sake as a what?
I think it is a very profound theory of both language and knowledge, but rather he does seem to us to have some particular utility.
And helping us to clarify a little bit the dynamic that we've observed,
intellectual development in the conceptual development of some key concepts in the use of force over the last 50 years or so.
And it perhaps helps us figure out or understand better the consequences of the shift that we are that we are seeing.
Of course, one way of talking about this shift, which which many have made, is to say, well, of course, Nicaragua was always somewhat arbitrary.
There's no necessity that that used to the use of force should be restricted only against a state actor or non-state actor attributable to a state.
And this was a kind of mistake that Nicaragua engaged in at some point.
The alternative position is well known.
Nicaragua reflects the true intentions of what the use of force framework was meant to
achieve and therefore must be defended against this revisionist change in our view.
Both of these are just different ways of giving a recollected story about the concept and about its content.
But what they both miss, in a way,
is the conditions under which one version of the concept seemed to become determinant and then the conditions under which it's lost.
It's determined to see it that time.
And used is achieving a new determined see, which is the that which is seems a variable through the revisionist framework.
And one of the things we highlight,
we have we highlight many aspects about the revisionist framework and the ways in which it turns Éminence into a permanent state.
The ways in which it focuses on the sort of subjective characteristics of individuals as the foundation of whether they are a threat,
whether they amount to an imminent threat of an armed attack.
And we we showed that this was resulting in quite a few changes in how we think about the application of these concepts
and even indeed their their accessibility to us as a as as as something that can be scrutinised in light of evidence.
But one of the things we point to in particular is the ways in which this concept that the implications of the original concept is in relation to you,
said Balam, proportionality. So we might say that what we're tracing is a shift from a symmetrical use of Belgium to an asymmetrical cerebellum.
And the implication of the asymmetrical, said Belgium.
It seems to us to be important and significant in that the the the presuppositions of the application of proportionality have changed.
Now, Rebecca's pointed out that in 1963 work, Brownlie is quite puzzled by by the application of proportionality to attacks against non-state actors.
And he doesn't really explain why he's puzzled, but he seems to think that.
And he said he certainly says in the text that attacking a non-state actor where that actor is not attributable to a state.
Cannot be proportionate.
Not because at one level, this is not to make any sense of I mean, if one thinks that proportionality is just the balance between means and ends,
between how you wish to prevent and how you wish to do harm, you need to inflict.
There's no reason, it seems to me, why it cannot be proportionate.
But that's I don't think Brownlee's Point Brownlee's intuition seems to be that
proportionality is not purely about the balancing of harms in material damage.
It's also about the balancing of rights, the right of a territorial sovereignty against another.
That's part of the calculus about whether the infringement on the territory of the other state as an equal sovereign,
as an equal legal person is justified. And I think the perplexity of a logical problem he seems to have is that a non-state actor,
which is not some sense attributable to the personality of a sovereign equal state.
Has no rights, actually. They have no rights as a corpus.
They have no rights as a legal person. That individuals might have rights as criminals or as as as as they might have human rights.
But these are not on the same order of the rights of sovereigns, which can be balanced against each other.
So that our.
I mean, this and this and us and this is our reading of Brownlie is that he's he's he's discussion of proportionality reflects this this puzzle.
And he ultimately concludes that while there could be circumstances in which a non-state actor, you know,
it could be legitimate use force against a non-state actor, he finds it very difficult to understand.
You can see the conditions on which that would be proportionate, except with the non-state actor is attributable to a state.
So if we move forward to the present, to the. The revisionist fretwork, what strikes us about the framework is in a sense,
precisely because it has effectively dispensed with the strong requirement of attribution.
It gives rise to what's sometimes known as the innocent state problem. In a way that the innocent state problem is a reflection of a deeper issue,
which is what is it concretely that sets boundaries to the extent of the use of force against the threat?
What limits out there?
We know that proportionality is a limiting concept, but contains within it no clear boundaries as to if it's a highly flexible concept of limitation.
When we apply the concept of proportionality to an interstate conflict,
there's some sense actually in which we know how to reason our way through all the way in which we reason our way through is dependent
and boys closely connected to the fact that we are speaking of two equal sovereigns with equal rights under international law.
And the implication of that is interesting. If you think it through. Under what conditions?
Is it proportionate to pursue a conflict against a state in self-defence?
To the extent that it requires the complete overthrow of that state's government and
the destruction of its military capacity so it can no longer pose a threat to you.
Now, this is not ruled out by proportionality in international law.
We know that. However, it's interesting to observe the conditions we attach to these to the circumstances in which that would be proportionate.
If it involves. A kind of limit case where a government is so anemically hostile.
Not just an ideological stance, but in a sense of constantly threatening you and seeking to destroy you under those conditions.
It's conceivable that a proportionate response would be invasion, regime change.
But it's the outer limits of what would be considered proportional in an interstate conflict.
And we often know that and we know from observance that proportionality is often used to say,
well, it was if it was acceptable to go this far into the territory into to respond in this way.
But it was not acceptable to go another 60 miles in order to seise control over a greater portion of the territory,
because there was it was not obvious that the threat would would would justify that.
And so in some sense, it gives us parameters, territorial parameters.
And these territorial parameters or parameters about the extent of damage reflect not a mere weighing of material harms,
but some sense in which to what extent are you allowed to breach or to intrude upon the equal rights,
the sovereign equal rights of territory, of political sovereignty,
of independence of that other state in order to in order to defend yourself against the threat that they pose.
What's interesting, I think in the way in which we talk about proportionality under the what let's call it the asymmetrical, you said Bellow,
is that the concrete sense in which there are limitations seems to be much harder to determine if they are determinable at all.
I mean, the paper we cite some examples both from French practise but also from the Americans,
which which points to the fact that the at the complete destruction of the military
capacity of the non-state armed group is considered to be and maybe it is a proportionate
and which can be pursued because it's it's considered it's considered to be necessary
to contain the harm that is posed or the risk of harm that is posed by those groups.
Strikingly, as I said, that's a limit case in the interstate conflict.
But it seems to be the central case or the normal case in the way in which we're
starting to think about the concept of proportionality in this asymmetrical.
You've said Belgium now first. So I guess one what about points about this is that's interesting.
And we should think about it. Right. To what extent is proportionality no longer a limiting device,
but a massive device which greatly extends the scope of continuous intensive violence in the territory of another
state in the name of debilitating or permanently disabling non-state armed group operating from that state?
And the sense is that is the limits of that proportionality really simply the destruction of that capacity?
Well, that's not to us does seem like the recipe for a forever war, because ultimately non-state armed groups can never be completely destroyed,
particularly if they they probably derive their their viability through various kinds of political support.
So ultimately, that point, you need a political strategy, not a military one. The second element of that, though, which is interesting to think about,
I think, is if that's plausible, if that's sort of something that seems right,
that there is this differentiation between what proportionality might mean in relation to a non-state group and what it might mean to a state.
Does that tell us something interesting about the presuppositions of the concepts that we
have inherited in relation to the use of force there into a public nature that that any way?
Again,
the claim is not to say one is necessary in some transcendental sense that we must always be into public war that is privileged by the UN Charter.
But I think it helps us examine better the stakes of the debate rather than have what I think are really ultimately fairly
fruitless debates about what's the true the true meaning of the charter or what has always been in the case of the law.
I think what we need to be having, rather, is a relatively clear discussion about what's at stake in moving,
sort of stumbling from a symmetrical you said Balam framework to one that endorses asymmetrical,
often asymmetrical yourself bellum as a sort of permanent feature of the legal landscape.
Rebecca, if you want to add anything to this before we close off.
No, that's great. I'm looking forward to two questions and four to the discussion as well.