1. 19TH ANNUAL ANZSIL CONFERENCE - THE PROMISE AND LIMITS OF INTERNATIONAL LAW – 23-25 JUNE 2011 CANBERRA, AUSTRALIA INTERNATIONAL LAW AND THE REGULATION OF VIOLENCE: SHIFTING PERCEPTIONS OF THE LEGITIMACY OF THE JUS AD BELLUM? Andrew Garwood-Gowers – Faculty of Law, QUT

2. Overview  The concept of legitimacy  Legitimacy and the jus ad bellum  Features of recent state practice in the ‘war on terror’: 1. failure to provide legal justifications 2. apparent lack of concern over legality Shifting perceptions of legitimacy of the jus ad bellum?

3. The concept of legitimacy  Hurd’s definition: ‘an actor’s normative belief that a rule or institution ought to be obeyed’  A perception based on the substance of a rule or its source or process of formation  Norm internalization and socialisation  Methodological difficulties in assessing states’ perceptions

4. Legitimacy and the jus ad bellum  Post-Iraq debate: ‘Realists’ vs. ‘Liberals’  State rhetoric and legal discourse as indicators of states’ perceptions of legitimacy

5. Recent state practice  Post-2006 incidents in ‘war on terror’:  Israel-Syria (2007 airstrike on Syrian nuclear facility)  Israel-Sudan (2009, 2011 airstrikes)  Turkey-Iraq (2008 incursions targeting PKK)  Ethiopia-Somalia (2006-2008 intervention)  2 significant features: 1. Failure to offer explicit legal justifications/report use of force to Security Council 2. International community’s apparent lack of concern over legality of uses of force

6. Interpretations and implications Shifting perceptions of legitimacy? - ‘realist’ interpretation - ‘war on terror’ and ‘unequal sovereigns’ - natural development of customary international law