Debate Map: UK/Russia Dispute
Last updated: 23 March 2018
This debate map sets out international law arguments stemming from the UK Government’s claim that the incident in Salisbury on 4 March 2018 “represents an unlawful use of force by the Russian state against the United Kingdom”. It is here acknowledged that the government of the Russian Federation does not accept claims of its involvement and the outline below should not be seen as taking a view on the facts asserted by either side.
(i) 14 March 2018 Marc Weller at EJIL Talk! takes us through the different breaches of international law that could be applicable in this situation and their consequences.
(ii) 15 March 2018 Tom Ruys at Just Security provides a detailed look at what constitutes a use of force, whether there is a higher threshold for an “armed attack” and what the consequences of such a characterization would be.
(iii) 17 March 2018 Dapo Akande at EJIL Talk! reviews in detail the legal consequences of treating the incident as a use of force.
A) State Practice
(i) 12 March 2018 UK Prime Minister Theresa May’s statement to Parliament.
(ii) 14 March 2018 Vassily A. Nebenzia Russian Federation Ambassador to the UN statement to United Nations Security Council meeting convened to discuss the UK’s allegation (statements by each representative appear at the end of the document).
(iii) 15 March 2018 joint US, France, Germany, UK statement.
B) International Organization Practice
(i) 14-15 March 2018 Organization for the Prohibition of Chemical Weapons Documents from the Eighty-Seventh Session of the Executive Council (includes statements by each member, including the UK and the Russian Federation).
(ii) 14 March 2018 NATO statement.
(iii)22 March 2018 EU Council “conclusions on the Salisbury attack”.
C) Scholarly Commentary
(i) Read the chapter Attribution of Conduct to the State: State Organs and Entities Empowered to Exercise Elements of Governmental Authority by Djamchid Momtaz from The Law of International Responsibility
III. Characterizing the Legal Situation
A) As a Use of Force?
(i) 14 March 2018 Marc Weller at EJIL Talk! argues that the presence of a nerve agent may be enough to amount to an illegal use of force.
(a) Read Christina Hoss and Jason Morgan-Foster on The Rainbow Warrior incident which is seen as the archetype of an illegal intervention falling short of a use of force.
(b) Read James Crawford on the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) which establishes that illegal interventions that involve the use of force, albeit indirectly, breach the prohibition on the use of force.
(c) Read Michael Bothe on the Oil Platforms Case (Iran v United States of America) which commentators see as a relevant example of the right to self-defence being triggered by small-scale breaches of the prohibition on the use of force.
B) As an Armed Attack?
(i) June 2015 (Updated December 2016) US Department of Defense Law of War Manual section 1.15.2 p48 stating that any use of force amounts to an armed attack for the purposes of Article 51 UN Charter
(ii) 15 March 2018 Tom Ruys at Just Security sets out arguments about whether this qualifies as an armed attack if seen as part of a pattern of assassinations that put the general public at risk.
(iii) Analogy with Cyber Attacks
(a) 18 September 2012 Harold Honju Koh, Legal Advisor to the US Department of State, remarks given at a conference on “the roles of cyber in national defense”: ‘In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that may warrant a forcible response.’
(b) 15 June 2015 Charlie Dunlap at Lawfare offers commentary on the DoD Manual’s position on uses of force and armed attacks as applicable to the cyber sphere.
(i) 17 March 2018 Dapo Akande at EJIL Talk! explains how characterizing actions as a use of force creates legal circumstances that permit a range of responses by the affected state and by the international community.
A) Non-Forcible Countermeasures
(i) 13 March 2018 Ashley Deekes at Lawfare explains why countermeasures could be triggered by the UK’s characterization of the incident as an unlawful use of force.
(ii) Action by the Organization for the Prohibition of Chemical Weapons
(a) 15 March 2018 House of Commons Library Briefing Paper on the Chemical Weapons Convention explaining how the Organization for the Prohibition of Chemical Weapons may be seized of the matter
(b) Read Guido Den Dekker’s Commentary on Art.XII of the Chemical Weapons Convention on Measures to Redress a Situation and to Ensure Compliance, Including Sanctions
(c)19 March 2018 Aurel Sari at the Conversation on Russia’s counterclaim that the UK’s demand for an explanation with a 48 hour deadline was itself a breach of Article IX(2) of the Chemical Weapons Convention by not allowing for enough time for a response.
(iii) International Criminal Court
(a) 13 March 2018 Ryan Goodman and Alex Whiting at Just Security look at whether the incident would qualify for the ICC’s jurisdiction as a war crime.
(b) 15 March 2018 Michel Paradis at Lawfare considers various international fora including the ICJ and the ICC as venues for legal redress.
(iv) 15 March 2018 Marko Milanovic at EJIL Talk! points out the breaches of human rights, in particular the right to life, that arise from the incident and others like it.
(v) Expulsion of Diplomats
(a) Read Eileen Denza’s Commentary on Article 9 of the Vienna Convention on Diplomatic Relations
(b) Read Joanne Foakes and Eileen Denza on Persona non Grata from Satow’s Diplomatic Practice 7th Edition.
(c) Alison Macdonald 20 March 2018 at Law of Nations on precedents for and risks of the use of persona non grata to punish sending states rather than individual diplomats.
B) Forcible Countermeasures
(i) Read Shane Darcy on Retaliation and Reprisals from the Oxford Handbook of the Use of Force in International Law which sets out legal and illegal uses of retaliatory force.
(ii) 8 March 2018 Ryan Goodman at Just Security arguing that in the realm of suspected cyber attacks the US might need to be more reticent to treat all uses of force as armed attacks that trigger the right to force in self-defence.
(iii) Charlie Dunlap at Lawfire (not to be confused with Lawfare) 13 March 2018 arguing for the view that the UK/Russia situation should not be treated as an armed conflict triggering the use of force in self-defence.
C) Third-Party Countermeasures
(i) 15 March 2018 Martin Dawidowicz in comments on Marc Weller’s EJIL Talk! article raises the prospect of a breach of an erga omnes obligation paving the way for third-party countermeasure. These are explored in more detail by Dapo Akande’s EJIL Talk! article from 17 March 2018.
(ii) Read Paolo Palchetti’s chapter on Consequences for Third States as a Result of an Illegal Use of Force from the Oxford Handbook of the Use of Force in International Law.