Home Articles posted by James A. Green

Initial Thoughts on the UK Attorney General’s Self-Defence Speech

Published on January 13, 2017        Author: 

This is part of a series of posts discussing the UK Attorney General’s speech on the Modern Law of Self-Defence. See also the other posts in the series by Monica Hakimi and Marko Milanovic.

It’s a pleasure to be able to contribute to this EJIL:Talk! discussion of the speech this week by the UK Attorney General, Jeremy Wright QC MP, on “The Modern Law of Self-Defence”. There are two elements of the speech that strike me as especially notable, and on which I’d like to give my initial thoughts here: the invocation of the so-called ‘unwilling or unable’ test and, particularly, the meaning of ‘imminence’ in relation to anticipatory self-defence.

Unwilling or Unable

The explicit acceptance by the UK of the ‘unwilling or unable’ concept, while brief, is a conspicuous feature of the Attorney General’s speech. The speech roots itself in tradition, with nods to the power and weight of history (stretching right back to the 1795 Jay Treaty, as well as, of course, including the obligatory self-back-patting over Britain’s role in the end of the international slave trade). However, there’s no hiding the novelty of the UK’s acceptance of the hugely controversial notion of responding to armed attacks (actual or imminent) even in cases where there is no ‘host state’ involvement whatsoever, simply on the basis of the unwillingness or inability of the state to prevent a non-state actor attack. The US has espoused the ‘unwilling or unable’ doctrine for years, of course, but the UK has not, at least not explicitly.

Admittedly, the Attorney General’s speech is not the first British invocation of unwilling or unable. In November 2015, David Cameron, then Prime Minister, argued before Parliament that the UK’s action in Syria was justified because “the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq” (as well as making the same assertion, the same week, in a memorandum to the Foreign Affairs Select Committee). However, these statements by the Prime Minister were the first clear articulations of the British acceptance of an unwilling or unable test, and were expressed very specifically in relation to action taken against ISIS in Syria. To my knowledge, the Attorney General’s speech acts as the first unequivocal confirmation that the UK has adopted unwilling or unable in genere. This is not a surprising fact, of course, but – to my mind – it is not a positive one either.

Put simply, and leaving aside policy, like Kevin Jon Heller (and many others) I remain unconvinced that state practice supports an unwilling or unable test in relation to self-defence actions taken against non-state actors (and, by unavoidable extension, the state(s) on/from which they are operating). The question of whether the law should allow for military action in such circumstances is a different matter: one that I will unapologetically sidestep. As the law stands, though, for my money, it does not. Read the rest of this entry…


Questioning the Peremptory Status of the Prohibition of the Use of Force

Published on March 17, 2011        Author: 

Dr James A. Green is lecturer in law at the University of Reading School of Law.

The prohibition of the unilateral use of force, as set out most crucially in Article 2(4) of the UN Charter, is often seen as the archetypal example of a jus cogens norm. Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character, as does the International Law Commission and the International Court of Justice.  It is understandable that a plethora of commentators have perceived the prohibition as a peremptory norm: the use of military force usually involves the systematic killing of human beings, often on a vast scale.  An underlying rationale for the entire jus cogens concept is the desire to impose some kind of fundamental standard of common values upon state interaction and to strengthen the effectiveness of international law in certain areas of common concern.  On this basis, the prohibition of the use of force is exactly the sort of norm that should be peremptory. Coupled with the fact that jus cogens and the jus ad bellum share common natural law underpinnings, one might view them as a perfect conceptual fit.

In ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215-257, I challenge this widely held view: is the prohibition of the use of force in fact a jus cogens norm?  The desirability of peremptory norms, and, indeed, their very existence, has been questioned in the literature, but it was not my aim in the Article to debate the existence of jus cogens norms per se.  Without making a value judgment as to the desirability of peremptory norms, the view is taken that there is certainly enough evidence to suggest that states have accepted the general notion of jus cogens flowing from Article 53 of the Vienna Convention on the Law of Treaties.

Based on this starting point, the Article does not argue that the prohibition is necessarily a norm that has failed to achieve peremptory status.  Rather, the intention is to demonstrate that there are significant difficulties with such a conclusion and that, as a result, the widespread uncritical acceptance of the prohibition as a jus cogens norm is concerning.  The aim is to test the prohibition against the criteria for the establishment of peremptory status—“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

By way of background, then, the Article sets out in more detail the legal criteria for identifying a peremptory norm of international law, and goes on to consider the majority view—prevalent in the literature—that the prohibition of the use of force is such a norm.  A number of problems with the conclusion that the prohibition is jus cogens are then set out.  The question of whether the prohibition is suitable, or even capable, of being viewed as a jus cogens norm is examined through various points of focus.

Read the rest of this entry…