Introduction

Abstract

This issue of the Journal on the Use of Force and International Law (JUFIL) begins with another excellent guest editorial comment, this time by Alexander Orakhelashvili. In his comment, Orakhelashvili critiques the approach that has been taken by the High Court in England and Wales in relation to the crime of aggression. The articles section of this issue then comprises four pieces that, while taking very different points of focus, touch on some similar underlying themes related to states’ legal argumentation and invocation of the law in the ad bellum context, and possible disconnects between the status of law (whether perceived or actual) and what states may say or do. The issue’s first article, by Christian Marxsen, takes as a starting point the apparent contradiction between states’ verbal commitments to the law and the prevalence of armed conflicts. He provides empirical insights into how states invoke international law to justify their uses of force, and develops a typology of how law can be confirmed by its invocation – even in cases where it may be coupled by illegal action – through an inductive approach based on case-analysis. The second article in this issue is a contribution by Christina Nowak, who uses intervention in civil wars as a lens through which to examine the complexities of legal argumentation in the ad bellum context. She uses state practice to show that states employ a spectrum of reasoning and argumentation adjusted to the political, moral or strategic relevance of the issue in question, and argues that emphasis should be placed on an ‘in-between stage’ of quasi-legality in which states test, reformulate or reject potential new legal arguments. Graham Melling’s contribution to the issue focuses on the Responsibility to Protect (R2P) doctrine, and considers whether the considerable degree of prominence of R2P within international discourse may be at odds with its emergence (or lack of) as an international norm with the capacity to influence and shape the decision-making of states. Finally in this section, Victor Kattan argues that there has been an attempt to expand the scope of the right of self-defence, and particularly the right of anticipatory self-defence through the provision of a new standard of ‘imminence’. In so doing, his arguments centre more on the process of development of the legal arguments rather than the arguments themselves, with a notable – although not exclusive – focus on the Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors published by Sir Daniel Bethlehem in the American Journal of International Law in 2012.