Det folkrättsliga självförsvarets utveckling: från Navy Island till Kabul; från stenmurar till brandväggar

Sammanfattning: This paper is about the right to self-defense, as an exception from the duty to refrain from use of force in international law. The purpose is to examine whether this right has changed from the time when the prohibition of force was implemented, and to explain why this is, or if there has been no change, why not. The text starts with examining the history of the prohibition of the use of force, from the ancient world to the founding of the UN, which constitutes the definitive end of the sovereign right to war. During most of our history, there have been some school of thought on when war is allowed, but not until the Kellogg-Briand Pact of 1928 there was a prohibition worth mentioning. After that, article 2(4) of the UN charter will be interpreted, as it constitutes the foundation of the prohibition of the use of force. Throughout the paper, both doctrines on whether old customary law survived the signing of the UN charter or not will be taken into consideration, and different solutions will be presented when they do not reach the same conclusion. The next part consists of situations where self-defense might be possible, and the legality of those will be examined, using examples from the real world. The situations are defense against invasions, protection of nationals abroad, anti-terror operations on other states’ territory, defense against irregular troops crossing borders and defense against cyber warfare. The right to defense against invasions is unchanged, and defense against cyber warfare has been included in this category. Protecting nationals abroad is allowed if the old customary law remains, and the right to conduct anti-terror operations as well as defending against irregular forces is unclear. The US behavior during the war on terror and the rest of the world’s reaction has probably created some sort of customary law allowing it, but the extent is uncertain. In the analysis a certain degree of development will be noted, but it is slight, and mostly consists of new situations placed in old categories. Neither new treaty law, nor customary law, possibly with the exception of anti-terror operations, has come around since 1945. The UN most likely hinders the development of international law, for better or worse. Since states do not share the same interests, it follows logically that they will try to take the international law in different directions, and since consensus is, more or less, necessary for the creation of international law, new rules will be created slowly. That, in turn, means running the risk that the legitimacy of the system will be hurt, if some states act outside the law.