jus ad bellum

Japan’s Dilemma in the Persian Gulf

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(Published in Australian Institute of International Affairs: Australian Outlook, Jun. 26, 2019; re-published in Opinio Juris, Jul. 5, 2019)

In the wake of the recent attacks on shipping in the Persian Gulf, there has been considerable discussion about Europe’s difficult position amidst the escalating tension between the United States and Iran. There has been far less discussion of Japan’s situation. Yet one of the ships was Japanese-owned, and Prime Minister Shinzo Abe was in Tehran at the time of the attack, specifically trying to dampen those tensions. Nonetheless, Japan distanced itself from the American accusations of Iran’s role in quite surprising and uncharacteristic fashion.

Why was that? Like the EU, Japan appeared to be on the horns of a dilemma, but the nature of its dilemma seemed far less clear. One explanation may lie with the Japanese government’s 2014 so-called “reinterpretation” of the war-renouncing provision of the Constitution. The current situation in the Gulf dovetailed with that “reinterpretation” in manner that created a dilemma with huge risks for the government.

Japan’s Surprising Response to the Crisis

Most readers would be familiar with the increasing tensions between Iran and the United States, from the American withdrawal last year from the Joint Comprehensive Plan of Action (JCPOA), the American tightening of sanctions since then, through to the recent U.S. deployment of forces to the region, followed by the two separate attacks on tankers in the Gulf of Oman. This timeline is a good refresher.

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Challenging and Refining the “Unwilling or Unable” Doctrine

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VJTLMy latest law review article has just been published: “Challenging and Refining the ‘Unwilling or Unable’ Doctrine,” 52 Vanderbilt Journal of Transnational Law 245 (2019). The abstract is as follows:

This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.

This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.

The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.

What Role and Rules for Canada’s Armed Drones?

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predator-firing-missile_previewI have published a short essay, “What Role and Rules for Canada’s Armed Drones,” in the Canadian Global Affairs Institute: Policy Perspectives, Dec. 23, 2018. Here is the abstract:

The Canadian government announced in June 2017 that it was planning to purchase and deploy armed drones. Yet to date it has provided virtually no information on how and for what purpose such armed drones would be used, beyond anodyne comments that they would be used like any other conventional weapon. However, conventional weapons have varying capabilities and purposes, and implicate international law in different ways as a result. Armed drones have been primarily used for the purpose of targeted killing, in ways that have raised significant legal questions and triggered claims of excessive civilian deaths. Canadians should be concerned about how, for what purpose, and according to what limitations the government plans to deploy armed drones. Other countries have provided greater transparency than Canada regarding the law and policy framework governing the use of armed drones. This short essay reviews how armed drones have been used elsewhere, explains the significant legal issues that are implicated by the different ways in which drones have been used and what that implies for the role of Canadian armed drones. It suggests that strict, clear and publicly disclosed limits be placed on drone use to ensure compliance with Canada’s international law obligations.

Japan’s Definition of Armed Attack and ‘Bloody Nose’ Strikes Against North Korea

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(published in Just Security, Feb. 1, 2018)

Shinzo?_Abe_and_Donald_Trump_in_Palm_Beach_(2)There has been an important discussion in the last couple of weeks over the legality of possible limited strikes, part of a so-called “bloody nose” strategy, by the United States against North Korea. The main issue of that debate has been quite conclusively determined: such a strike would not be legal. And as Victor Cha, the White House’s pick, until recently, to be ambassador to South Korea, laid out in an op-ed this week, it would be deeply misguided as a policy choice. There remains more to be said, however, about a couple of interesting and potentially important questions regarding Japan’s position in relation to such strikes. One, which has been raised but not fully answered in the discussion, relates to whether Japan has already somehow consented in advance to U.S. action in collective self-defense of Japan. The second, which has not been explicitly addressed at all, is whether Japan defines “armed attack” for purposes of triggering the right of self-defense differently than does the U.S.

To recap briefly, the debate was set off by an essay in Lawfare by two West Point professors, Army Lt. Col. Shane Reeves and Army Capt. Robert Lawless, arguing that limited strikes on North Korea would be lawful. Virtually all elements of their argument were quite persuasively demolished by Kevin Jon Heller in Opinio Juris, and Michael Schmitt and Ryan Goodman here in Just Security.

A central premise of one strand of the Reeves/Lawless argument was that the test-firing of a North Korean intercontinental ballistic missile (ICBM) into the territory of Japan could constitute an armed attack, triggering an American right to use force as an exercise of collective self-defense. They were dismissive of the position of the International Court of Justice (ICJ) that collective self-defense requires a request from and consent of the country under attack, suggesting that the 1960 Treaty of Mutual Cooperation and Security between the U.S. and Japan (the “U.S.-Japan Security Treaty”), “may provide a basis” for American action. They went on to note that, in their view, Japan was in any event very unlikely to oppose American strikes in defense of Japan.

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