Rethinking the problem of third-state injuries in the situation of self-defence : justifications against the host state as focus

Abstract

When responding to armed attacks by an aggressor state operating within a third state in self-defence, a victim state may inadvertently violate the rights of that host state, including but not limited to their rights to territorial integrity or to freedom of navigation. How can the victim state justify such infringements under current international law? As a legal concept, self-defence has traditionally been perceived as producing legal effects bilaterally, between the aggressor state and the victim state. To justify the victim state’s conduct against the host state within this traditional framework of self-defence, solutions have been put forward in contemporary scholarship, relying either on the host state’s involvement with the aggressor state or on its violation of the law of neutrality. An alternative method attempts to revamp self-defence under the law of state responsibility into a multilateral concept, expanding its preclusive effects to cover the host state. However, neither this revised approach nor those devised with the traditional perception of self-defence’s legal effects surmount the conceptual and pragmatic challenges. This article suggests yet another way of the resort to countermeasures as a circumstance precluding wrongfulness to justify third-state injuries caused by the victim state, which can better resolve the problem in the situation of self-defence.