"The right of self-defence of states against non-state actors"

Doctoral candidate Shpetim Bajrami about his thesis topic and his research period at the University of Cambridge.

Öff. Recht II / Forschung & Fakultät / Internationales |

The ZEIT Foundation and the Bucerius Alumni Association support young Bucerius scholars during their research stays abroad. Doctoral candidate Shpetim Bajrami spent three months at the Lauterpacht Centre for Public International Law at the University of Cambridge.

The right of self-defence of states against non-state actors

Since the military intervention of the United States and its allies in Afghanistan in 2001, self-defence – and especially that against non-state actors – has emerged as the most controversial issue of international peace and security law. It is no secret to say that the interpretation and application of the international law on the use of force has given rise to, and continues to give rise to, fierce discussions, not only among legal scholars, but more importantly among states and other political actors. Against this background, it is particularly controversial whether the originally state-centric right of self-defence can also be applied to non-state actors, and what nexus between the non-state actor (which in recent cases consisted predominantly, but not exclusively, of terrorist groups) and the host state is required. One possible approach to tackle this problem is to permit acts of self-defence when the host state is “unwilling or unable” to prevent terrorist attacks from its territory. The overarching aim of my study is to scrutinise the status of the unwilling or unable doctrine de lege lata.

Supervisor and course of my PhD

My PhD supervisor is Professor Mehrdad Payandeh at Bucerius Law School, for whom I have also worked as a research assistant since May 2017. Together with his constructive support and input, I aim to approach the abovementioned legal issue as follows: in the first part of the thesis, I want to set the doctrinal and theoretical stage on which the problem of self-defence against non-state actors plays itself out. The historical and contextual interpretation of Article 51 of the UN Charter, the importance of attribution as a requirement of self-defence, and the rationale of the unwilling or unable doctrine are only some of many other important questions I want to take a closer look at. In the second part, I will conduct a case study on most, if not all, of the cases in the UN Charter era where one state attacked a non-state actor in the territory of a third state. When dealing with the law on the use of force, analysing and evaluating state practice is unavoidable. The power of precedent is the most important argumentative element in the process of customary international law, which is supposed to clarify the precise meaning of the scope of the right of self-defence.

Research stay at the LCIL at Cambridge University

From May to July 2019, I undertook a research stay at the Lauterpacht Centre for Public International Law at the University of Cambridge, which turned out to be the most fruitful and productive time of my entire research so far. Cambridge, and especially the Lauterpacht Centre, is a magnificent place with a unique academically inspiring atmosphere. The Lauterpacht Centre offers a running programme for visiting academics and postgraduate students. In a forum we called ‘Monday’s Roundtable’, the visiting scholars had the opportunity to present their research and enter into thought-provoking, and often very intense, discussions. It was of the utmost value to receive substantiated opinions and perspectives from experts from all over the world on your own PhD topic. Another distinct privilege was to have unexpected intellectually stimulating and in-depth discussions about your own research while having a coffee in the centre’s kitchen or garden – after all, the Lauterpacht Centre is the linchpin of every scholar and practitioner dedicated to international law in and around Cambridge. Through a variety of further events, such as the ‘Friday’s Lunchtime Lectures’, I broadened my horizons and learned from other interesting presentations and discussions. In addition, I was eager to seek conversations with many well-esteemed academics in the field of international law and received very valuable feedback from them.

Furthermore, the Lauterpacht Centre, together with the Cambridge University’s Squire Law Library, offered an impressive collection of legal materials, from overwhelming numbers of online resources to the original works of famous experts, some of them even the founders of international law, in its archives. Cambridge provides the ideal academic infrastructure.

A special word of thanks

I am very thankful to my PhD supervisor Mehrdad Payandeh, who encouraged and supported my research visit in every possible way, and Bucerius Law School, which funded my research stay in Cambridge with a scholarship. Last but not least, I would like to express my special thanks to Professor Jens Scherpe, who enabled me to be affiliated to Gonville & Caius College as a visiting PhD student throughout my stay. Because of him, I was able to catch a glimpse of the magic of one of the oldest colleges in Cambridge, whose “May Ball” was the peak of the number of outstanding social occasions Gonville & Caius has to offer.

The architecture and landscape of the city, the discussion culture and exchange of ideas, as well as the diversity of the students and academics characterise Cambridge as a unique place. Finally, my research stay not only helped me to build a beneficial professional network, but also form new friendships. Every aspect of my stay in Cambridge will remain deeply etched in my memory.