On The Regulation Of Cross-border Anti-terrorism Under International Law

In recent years,terrorism has posed a severe challenge to the international peace and security,but the lack of consensus among international community on the definition of terrorism is not commensurate with the rapid development of terrorism in the present society.Domestic legislation can not face the challenge of contemporary terrorism to international and domestic security sufficiently,so it is increasingly necessary for sovereign states to establish a global counter-terrorism governance by means of boosting cross-border counter-terrorism cooperation.It should be pointed out that cross-border counter-terrorism should be an act of law enforcement by a state against terrorism as a domestic or international crimes,for the direct purpose of this act is to apprehend terrorist criminals and destroy terrorist forces under domestic laws and international treaties.Therefore,trans-border counter-terrorism should be as an act of law enforcement,rather than an international or non-international armed conflict.The Security Council resolutions and the cooperation between the sovereign states are considered as two theoretical bases for the cross-border anti-terrorism.Since the Security Council has been authorized to the rights of the maintenance of the international peace and security,but the existence of cross-border terrorism poses a severe danger to it.Therefore,the Security Council should regulate the spread of terrorism in all directions through measures such as cross-border anti-terrorism andstrengthening international cooperation.The invitation of a State is another legitimate basis for cross-border counter-terrorism,and the state may exclude the wrongfulness of the act by agreeing to the conduct of a state within its territory,but such consent is subject to a series of rules and must not exceed the limits established by international law for the consent of States.The basis of international law for the right of self-defence to fight against terrorism is still under discussion.When a terrorist attack can be attributed to a state,The International Court of Justice does not deny the practice of States acting in self-defence under Article 51 of the Charter of the United Nations,but terrorists act as somewhat agents of states in such cases,so it is difficult to call it "cross-border counter-terrorism".Given the facts and regulations mentioned above,it may encounters a great variety of theoretical obstacles in the practice of Cross-border anti-terrorism.If counter-terrorism act is carried out in accordance with Security Council resolutions,the overlapping jurisdictions between the Council and the International Court of Justice on legal matters related to cross-border counter-terrorism would be a major obstacle,and the conflicts over the interpretation of relevant international treaties would also be complicated.It is therefore necessary to regulate the relationship of competence between the Security Council and the International Court of Justice in international law so as to ensure the authority of the Court without hindering the efficiency of the work of the Council in the maintenance of international peace and security.Cross-border counter-terrorism is also vulnerable to state aggression against the sovereignty of other States,especially when the development of international human rights law in recent years has made the protection to human rights an increasingly important legal obligation of the international law.It should be cautious to make the use of so-called "humanitarian interference" as the legal basis of "cross-border counter-terrorism".In addition,the Security Council and the states are also likely to arrogate to themselves the rights of execution or making resolutions de facto not consistent with international law,which will challenge the sovereignty of the countries concerned.The occurrence of an armed conflict is an essential prerequisite for the application of the laws of war.The laws of war are irrelevant to the use of cross-border anti-terrorism,as it deemed as a sort of law-enforcement.Therefore,the provisions of international humanitarian law and the laws of armed conflict cannot be used to regulate the law-enforcement against the international terrorism.However,cross-border counter-terrorism may be de facto associated with an armed conflict,as the subjects of cross-border counter-terrorism may be involved in international armed conflict or non-international armed conflict in practice.At this point,how to judge the nature of the conflict accurately is a fact-based problem.Thus,the legal basis and the object of exercise of the anti-terrorism act should be restricted,and a distinction should be made between cross-border counter-terrorism which should be regulated under the peace law and armed conflict where the laws of war applies.Finally,the cross-border anti-terrorism action should be defined by international or regional anti-terrorism convention to improve the global anti-terrorism cooperation.