Opinio Juris

At the heart of the Ecuadoran/ Colombian/ Venezuelan tensions, there is a dispute over the facts that has legal implications as to whether Colombia’s military action was self-defense or anticipatory self-defense (which, as many would see it, would make it aggression). As CNN explains:

[Ecuadoran President Rafael] Correa told reporters in Quito that [Colombia’s Presdient Alvaro] Uribe told him the raid occurred after a FARC column fled across the border [from Colombia and into Ecuador] and fired at Colombian forces, who "had to defend themselves."

But Correa said his forces investigated Uribe's claims and discovered that the Colombian planes attacked the guerrillas as they slept in a camp 2 km ( 1.2 mi) inside Ecuador.

"Of course Ecuadoran air space was invaded," he said…

"We will not permit this outrage," he said. "Either President Uribe was misinformed and will have to sanction his commanders who deceived him, breaking every international bilateral proceeding by entering our territory or Uribe simply lied. In either case, the situation is extremely grave and the Ecuadoran government is disposed to go to the ultimate consequences."

In Colombia’s version of the facts, they can claim “hot pursuit” and self-defense. But Ecuador’s version of the facts would make Colombia’s action unjustifiable under classic legal understandings of self-defense and under such facts Colombia would need to rely, as a legal matter, on the controversial post-9/11 attempts by the United States to refashion the law of use of force. As Jose Alvarez had written in his comment Hegemonic International Law Revisited (97 American Journal Int'l Law 873 (2003)):

the prospective endorsement of individual and collective self-defense by the [UN Security] Council, together with its later acquiescence in Operation Enduring Freedom, may signal, depending on how the Council's license comes to be interpreted by its licensee, the advent of three new general rules with respect to defensive force in the age of terrorism:

(1) Terrorist violence, at least when of the scale of the events of September 11, 2001, and even when undertaken by a nonstate actor, may constitute an “armed attack” for purposes of UN Charter Article 51.

(2) A state's assistance to, harboring of, or post hoc ratification of violent acts undertaken by individuals within its territory, or perhaps even mere negligence in controlling such individuals, may make that state responsible for those acts and justify military action against it. In other words, such state action (or inaction) may constitute a breach of the state's own duty not to violate UN Charter Article 2(4).

(3) The right to respond with military force against both terrorist individuals and harboring states does not become impermissible retaliation or illegal anticipatory self-defense, or exceed the rules of proportionality, merely because the threat of continued terrorist attack remains clandestine and unpredictable (as it has been since 9/11).

As this situation plays itself out, I wonder if the declarations and arguments by the political leaders of Colombia, Ecuador, and Venezuela, as well as those of other interested states, will provide a further gloss via state practice as to whether these new theories of self-defense have become more generally accepted. Will Colombia argue that, regardless as to which version of the facts you believe, they were within their rights to act?

In any case, as the troops of three countries head to their borders tonight, I hope that this situation will play itself out with nothing more than some heated rhetoric.