The United Kingdom’s “Modern Law of Self-Defence”—Part III

On Wednesday, Jeremy Wright QC MP, the Attorney General of the United Kingdom, delivered an important speech laying out his government’s view of the international law governing the use of armed force in national self-defense. In two previous posts, I raised two concerns with what the Attorney General said. In this post, I’d like to raise one concern with what the Attorney General did not say.

As James A. Green observes over on EJIL:Talk!, the Attorney General’s speech solidifies the UK’s embrace of what has become known (rather unfortunately, in my view) as the “Unwilling or Unable” doctrine. On this view, State A has a legal right to use armed force on the territory of State B, without its consent, in order to prevent or repel attacks by an armed group operating from the territory of State B. State A enjoys this legal right even if State B does not control the armed group and bears no responsibility for these attacks. It is enough, on this view, that State B appears unwilling or unable to prevent the armed group from launching these attacks.

The Attorney General’s embrace of this view is, in my view, unfortunate but not particularly surprising. What I find surprising is that the Attorney General did not acknowledge any legal obligation (or even a policy preference) to seek the consent of the territorial State in good faith, rather than simply rely on a unilateral judgment of unwillingness or inability. Indeed, the Attorney General did not mention the consent of the territorial State in any context.

As we saw in my previous post, the Attorney General adopts Daniel Bethlehem’s Principle 8, which lays out a multi-factor analysis of imminence. Interestingly, the Attorney General passes over Bethlehem’s Principles 10, 11, 12, and 13. According to these principles,

a state may not take armed action in self-defense against a nonstate actor without the consent of the territorial state (Principle 10)

unless there is a reasonable and objective basis for concluding that the territorial state is colluding with the nonstate actor or is otherwise unwilling to effectively restrain the armed activities of the nonstate actor (Principle 11)

or there is a reasonable and objective basis for concluding that the territorial state is unable to effectively restrain the armed activities of the nonstate and that the seeking of consent would materially undermine the effectiveness of action in self-defense (Principle 12)

As I explain below, Bethlehem’s Principles may be too permissive. Be that as it may, it would be good to know whether the UK accepts or rejects them.

As I have suggested elsewhere (albeit in passing), international law requires a showing not simply of the necessity to use defensive force but of the necessity to use defensive force without consent. When the territorial State launches an armed attack, either directly or indirectly through an armed group that it controls, this requirement takes care of itself. In contrast, when an armed group operates beyond the control of the territorial State, the primary way to show the necessity to use defensive force without consent is to seek consent in good faith and see what happens.

Of course, consent may be refused, or offered subject to unreasonable conditions. However, what may appear to the intervening State as intractable unwillingness or inability may turn out to be something more complex that may be overcome through cooperation. In either case, there are seldom valid reasons why the intervening State should not seek consent before resorting to unilateral armed force.

In my view, the intervening State must seek the consent of the territorial State in good faith unless the seeking of consent itself would materially undermine the effectiveness of action in self-defense. Naturally, others will disagree. In any event, the Attorney General would have done well to present and defend his government’s position on these important matters.

Image: Getty

 

About the Author(s)

Adil Ahmad Haque

Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School, Author of Law and Morality at War Follow him on Twitter (@AdHaque110).