Legal resilience in an era of grey zone conflicts and hybrid threats

Abstract

The international system has entered a period of increased competition, accompanied by a steady retreat from multilateralism and international institutions. The purpose of this article is to place these developments within the context of three concepts that have risen to prominence in recent years: lawfare, hybrid warfare and grey zone conflicts. In doing so, the article makes three arguments. The instrumental use of international law for strategic purposes forms an integral feature of the international system. Although the notions of lawfare, hybrid warfare and grey zone conflict all contribute towards a better understanding of the instrumentalization of international law, neither offers a complete framework for analysis and for developing an appropriate policy response. The challenges posed by the instrumentalization of international law are therefore best countered by adopting a legal resilience perspective and by fostering an operational mindset.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Cannabis Act (SC 2018, c 16).

2 Single Convention on Narcotic Drugs, 30 March 1961, 18 UST 1407, 520 UNTS 151; Convention on Psychotropic Substances, 21 February 1971, 32 UST 543, 1019 UNTS 175; United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, KAV 2361, 1582 UNTS 95.

3 Statement by the International Narcotics Control Board on the entry into force of Bill C-45 legalising cannabis for non-medical purposes in Canada, 17 October 2018, UNIS/NAR/1362.

4 Ministry of Foreign Affairs, Comment by the Information and Press Department on Canada’s steps to legalise cannabis for recreational use, 22 June 2018, 1199-22-06-2018; Statement of the Permanent Representative of the Russian Federation to the International Organizations in Vienna Ambassador Mikhail Ulyanov at the 2nd intersessional CND meeting, Vienna, 25 June 2018, 28 June 2018, 1240-28-06-2018; Statement of the Permanent Representative of the Russian Federation to the International Organizations in Vienna Mr Mikhail Ulyanov at the 5th intersessional meeting of the Commission on Narcotic Drugs, Vienna, November 7, 2018, 8 November 2018, 2127-08-11-2018.

5 GA Res 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 122–123 (24 October 1970).

6 See, for example, Note Verbale CML/8/2011 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General, 14 April 2011; Note Verbale CML/17/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General, 7 May 2009.

7 The South China Sea Arbitration (Phil v China) (Perm Ct Arb 2016). For the Chinese position, see Ministry of Foreign Affairs (2016).

8 UN Secretary-General, Depositary Notification, C.N.805.2016.TREATIES-XVIII.10, 28 October 2016.

9 Remarks by President Trump on the Joint Comprehensive Plan of Action, 8 May 2018, <https://www.whitehouse.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/>, accessed 2 January 2019.

10 The White House, The National Security Strategy of the United States of America (December 2017). The Strategy paints a picture of continuous competition between States and a failure of international institutions to restrain and integrate revisionist powers, such as China.

11 Thucydides (2009), 5.84–5.111. The Melian Dialogue is regarded as a classic illustration of the necessities of power, famous for making the point that ‘The strong do what they can: the weak suffer what they must’ (ibid, 5.89). See Wassermann (1947).

12 Address by the President of the Russian Federation, 18 March 2014, <http://en.kremlin.ru/events/president/news/20603>, accessed on 9 January 2019. For an assessment of these claims, see Olson (2014).

13 The Ambassador in the Soviet Union (Steinhardt) to the Secretary of State, Moscow, 17 September 1939, in United States Department of State (1956), 428–429, 428–429. On Soviet efforts to justify the invasion of Poland, see Plokhy (2011).

14 Decree of the President of the Russian Federation No 147, ‘On the recognition of the Republic of Crimea’, 17 March 2014, <http://publication.pravo.gov.ru/Document/View/0001201403180002> (in Russian), accessed on 9 January 2019.

15 Agreement between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and the Formation of New Federal Constituent Entities, 18 March 2014, <http://publication.pravo.gov.ru/Document/View/0001201403180024> (in Russian), accessed on 9 January 2019.

16 Consolidated Version of the Treaty on the Functioning of the European Union, 13 December 2007, 2012 OJ (C 326) 1 (EU).

17 Council Regulation 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine, 2014 OJ (L 229) 1 (EU).

18 Ironically, in so doing they display a remarkable lack of realism about the operation of international law. See Brownlie (1982).

19 It is a mistake, therefore, to assume that a rules-based international order must necessarily be a pluralist and liberal one. See Simpson (2001).

20 In the South West Africa Cases, Second Phase (Liber v S Afr; Eth v S Afr), Judgment, 1966 ICJ Rep 6, ¶ 49 (July 18), the International Court of Justice put this point as follows: ‘Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.’

21 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art 51(7), 8 June 1977, 1125 UNTS 3 (Additional Protocol I). See Henckaerts & Doswald-Beck (2005), 337–340.

22 Additional Protocol I art 51(8).

23 SC Res 827, preamble (25 May 1993). See also UN SCOR, 48th Sess, 3217th mtg, 12 (France), 19 (UK), 21 (Hungary), 22–23 (New Zealand), 24–25 (Japan), 27 (Morocco) and 32 (Pakistan), UN Doc S/PV.3217 (25 May 1993).

24 In particular, see Supreme Allied Commander, Europe and Supreme Allied Commander, Transformation, Bi-SC Input to a New NATO Capstone Concept for the Military Contribution to Countering Hybrid Threats, 25 August 2010; Headquarters, Supreme Allied Commander Transformation, Assessing Emerging Security Challenges in the Globalised Environment: The Countering Hybrid Threats (CHT) Experiment, Final Experiment Report (FER), 29 September 2011; European External Action Service, Food-for-Thought Paper ‘Countering Hybrid Threats’, Council Doc 8887/15, 13 May 2015; European Commission, Joint Framework on Countering Hybrid Threats: A European Union Response, JOIN(2016) 18 final, 6 April 2016.

25 4 April 1949, 63 Stat 2241, 34 UNTS 244.

26 Brussels Summit Declaration, Issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Brussels, 11–12 July 2018, <https://www.nato.int/cps/ic/natohq/official_texts_156624.htm>, accessed on 9 January 2019.

27 Letter dated 13 March 2018 from the Chargé d’affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc S/2018/218, 13 March 2018.

28 See <https://www.hybridcoe.fi/hybrid-threats/)>, accessed on 9 January 2019.

29 See also Janson v Driefontein Consolidated Mines Ltd [1902] AC 484, 497 (House of Lords).

30 National Cyber Security Centre, Reckless campaign of cyber attacks by Russian military intelligence service exposed, 4 October 2018, <https://www.ncsc.gov.uk/news/reckless-campaign-cyber-attacks-russian-military-intelligence-service-exposed>, accessed 7 January 2019.

31 NATO, Allied Joint Doctrine, AJP-01, February 2017 (5th ed., ver 1).

32 For example, NATO, Allied Joint Doctrine for the Conduct of Operations, §§ 0410–0414, AJP-3 (B), March 2011.

33 NATO, Allied Joint Doctrine, §§ 1.13–1.19, AJP-01, February 2017 (5th ed., ver 1).

34 NATO, Allied Joint Doctrine for Joint Targeting, § 0117, AJP-3.9, April 2016 (A ed., ver 1).

35 Ibid, § 0119.

36 For example, freedom of navigation operations.

37 See UK Ministry of Defence, Understanding and Intelligence Support to Joint Operations, section III, JDP 2-00, August 2011 (3rd ed.).

38 UK Ministry of Defence, Legal Support to Joint Operations, § 5.1, JDP 3-46, June 2018 (3rd ed.).

39 Cf Department of the Army, Legal Operations, FM 27-100, 3 September 1991.

Additional information

Funding

This work was supported by the British Academy.

Notes on contributors

Aurel Sari

Aurel Sari is an Associate Professor of Public International Law at the University of Exeter. He is the Director of the Exeter Centre for International Law, a Fellow of Supreme Headquarters Allied Powers Europe and a Fellow of the Allied Rapid Reaction Corps. His work focuses primarily on international conflict and security law and the rules relating to military operations. He has published widely on the law of armed conflict, status of forces agreements, peace support operations, international human rights law, the legal framework of European security and defence policy and, more recently, the legal aspects of hybrid threats. The present paper is written in a personal capacity, but has benefitted from discussions with colleagues in a range of fora, including the European Centre of Excellence for Countering Hybrid Threats, the International Institute for Strategic Studies, the Geneva Centre for Security Policy, the Judge Advocate General's Legal Center and School and the Center for Ethics and the Rule of Law at Pennsylvania Law School. Email: [email protected]