From Al-Qaida to ISIL: The decisions and practices of the UN Security Council related to the right to self-defense against non-state actors from 2002–2014: A deafening silence after Resolutions 1368 and 1373 (2001)

Abstract

Security Council Resolution 1373, adopted in the aftermath of the 9/11 attacks and “recognizing the inherent right of individual … self-defense,” was regarded as having expanded the scope of Article 51 to cover armed attacks by autonomous non-state actors. However, the ICJ refused to recognize such expansion in its Wall Opinion. The ICJ’s conclusion cannot be regarded as the last word. As Bruno Simma has highlighted: “The rules of treaty interpretation … of international law do not exclude the possibility that Art. 51 is reinterpreted … on the basis of subsequent practice.” The question is whether or not the SC practice from 2002 to 2014 has expanded the scope of Article 51. This project has reviewed 34 resolutions, 44 presidential statements by the SC, and 115 press statements by its members dealing with threats to peace and security caused by terrorism. The conclusions of this research are that the SC has devised and strengthened only multilateral instruments to face the challenge posed by terrorism from 2002 to 2014; that there has been no explicit subsequent practice related to the right to self-defense against terrorist groups by the Council in its 78 decisions during this period; that there have been some subsequent decisions going in the opposite direction to Resolution 1373 from 2007 to 2014; that the SC has halted this emerging trend as a result of ISIL; and that there seems to be some implicit subsequent practices, fully identified in the paper, that, nonetheless, have been insufficient to expand the scope of Art. 51.