Terrorist Actors as Catalysts of International Law Development

Abstract

The September 11th attacks may have popularised the phrase “the war on terror,” but the international community has co-operated to address the threat of terrorism since at least 1937. In one of its aspects, co-operation has taken the form of a series of treaties requiring states to criminalise and suppress particular manifestations of international terrorism. This treaty regime has developed in a piecemeal fashion, each treaty reacting to and addressing a specific terrorist act committed by non-state actors. The form of the treaty framework has also been shaped by the rights of non-State actors (in particular ‘peoples’) to self-determination. The question examined in this paper is the extent to which international law which ‘responds’ to crisis can be ‘responsive’. Put another way, as viewed through the prism of terrorism suppression, what are the potentialities and limitations of reactive law making – particularly where such treaty making is at the crossroads of criminal responsibility for non-State conduct and the rights of non-State actors to self-determination?

This paper first sketches the development of international law related to terrorism suppression, starting with League of Nations and ILC efforts, and culminating in the now familiar pattern of terrorism crisis followed by the negotiation of a treaty addressing the particular manifestation of terrorism which occasioned the crisis/treaty (often referred to as the ‘sectoral approach’). This paper then explores the implications of this pattern of international law making, beginning with some of its potentialities in addressing the interaction between rights and criminal responsibility of non-State actors, and concluding with its limitations in terms of the coherence of the treaty regime addressing terrorism, in particular as regards the principles of regime interaction to which the treaty regime gives effect.

Keywords: terrorism, self-determination, international humanitarian law