THE US has commenced air strikes deep inside Syrian territory against the militant group the Islamic State (IS). While the Syrian government was informed about the attacks before the operation began, it has not formally consented to these strikes. In fact, the Syrian foreign minister earlier stated that action against IS on its territory would be “considered aggression” unless coordinated with Syria.

Under international law, Article 2(4) of the United Nations Charter prohibits member states from threatening or using force against the territorial integrity or political independence of other states. Without consent, and a few other exceptions listed in this article, any such infringements of state sovereignty violate international law.

Generally, international law bars the use of force on foreign soil even if a civil war prevails in the targeted state and those attacked are non-state actors (NSAs) hostile to that state. Under international law it is irrelevant that the targeted NSAs are classified as terrorists, rebels or freedom fighters by the community of states. The normative classification of these groups has no bearing on the legitimacy of the use of force.

This conservative view of sovereignty has been repeatedly reaffirmed by the International Court of Justice. Some states justify violations of state sovereignty on the basis of what they claim are emerging norms, which derive their legitimacy from human rights principles.

An attack on IS in Syria is an attack on Syria itself.

These norms include the right to challenge state sovereignty on the basis of humanitarian intervention, responsibility to protect populations of other states from mass atrocities including genocide and crimes against humanity, and democratic intervention.

These aspirational norms, while appealing at first glance, are often employed by states as pretexts for attacking other states unilaterally or in groups. Such purported norms have not attained the status of customary international law — a source of international law that binds all states.

Absent consent, such air strikes can still be legal if they qualify as acts of self-defence. Article 51 of the UN Charter provides that a state can use force both for individual or collective self-defence in response to an armed attack: the exercise of this right, however, requires immediate reporting to the UN Security Council.

Alternatively, military action can be taken against a state if the UNSC decides to act by passing a binding Chapter VII resolution under Article 42 of the UN Charter, which sanctions the use of force.

It is hard to argue that the US is acting against IS in individual self-defence. There is an argument that the US is acting in collective self-defence for its ally Iraq. However, this requires a security pact which sanctions such assistance in the event of an armed attack. Whether such an agreement is present between the US and Iraq is yet to be determined.

A further hurdle for the US is that IS, while it is operating from Syria, is not itself a state and hence incapable of carrying out an armed attack under Article 51 of the UN Charter. Thus an attack on IS in Syria is an attack on Syria itself and can only be lawful if armed attacks conducted by IS in other states can be attributed to Syria. This would require both effective control and command of IS by Syria. To the contrary, the latter is itself engaged in battle with IS.

The unwillingness of the US to approach the UNSC is evident as it fears a Russian veto of any military action through a UNSC resolution on Syrian territory. Further, US inflexibility in getting Syria on board for neutralising IS is also problematic: what unequivocally could have been a lawful and warranted use of force against IS has become highly contentious because of the procedure employed.

US indifference towards state sovereignty and international law was evident when President Obama recently stated: “I have made clear that we will hunt down terrorists who threaten our country wherever they are… [t]hat means I will not hesitate to take action against ISIL [IS] in Syria, as well as Iraq. This is a core principle of my presidency: if you threaten America, you will find no safe haven.”

Such unilateral use of force, without UN sanction and Syrian consent, cements the wrong precedent and undermines both international law and the UN’s security framework. International law evolves and develops as a result of state practice and the obligation to follow that practice.

If such challenges to state sovereignty continue then the rule will become the exception. Any state will then be seen as well within its rights to unilaterally attack another on the premise that terrorists are operating from there. Pakistan should be particularly wary of such developments as most of its neighbours constantly make such claims.

The writer is the former legal advisor to the Ministry of Foreign Affairs.

Published in Dawn, October 2nd, 2014