The Imbalanced Geography of the Law on Use of Force in Self-Defence

Abstract

The most invoked justification for use of military force is the ‘inherent right’ to self-defence, enshrined in Article 51 of the UN Charter. This article examines efforts over the past two decades to reshape the scope of this right, arguing that attempts to permit defensive force in a wider range of situations than previously are symptomatic of structural bias that favours militarily powerful States more able and willing to use force. Building from TWAIL and feminist insights, the article reveals trends in instrumentalization and dominance of the law on self-defence, particularly within construction of customary international law, which operate to the detriment of populations living in areas converted into conflict zones. The analysis reinforces the imperative to explicitly acknowledge issues with universality and impartiality within the discussion on scope of self-defence, as well as consider alternative approaches to redressing structural bias and restricting the imbalanced impacts of defensive force.