The nature of the request requirement for collective self-defence

Green, James

Abstract

The right of collective self-defence has been invoked more by states over the last 10 years than at any other point in the UN era – including it forming one of the (spurious) justifications advanced by Russia for its 2022 invasion of Ukraine. Most of the requirements for the exercise of collective self-defence are shared with its better-known ‘individual’ counterpart, and thus have been well-scrutinised in scholarship at least in that context. However, the International Court of Justice famously asserted in its 1986 Nicaragua judgment that two additional customary international law requirements are needed for the exercise of collective self-defence: 1) that the attacked state ‘declare’ that it has been attacked and 2) that it ‘requests’ aid in response.

The ‘declaration’ and ‘request’ criteria have been much repeated in the literature since 1986, although they also have been criticised, with some doubting whether they are indeed binding requirements under customary international law. This paper argues, first, that there is in fact no legal basis for the purported ‘declaration’ criterion. In contrast, it will then be argued that the ‘request’ criterion is well established as a legally determinative requirement by way of notable state practice and opinio juris throughout the UN era.

The conclusion that collective self-defence is legal premised on a request for aid begs a number of further (crucial) questions about how the request requirement must be applied. It is clear that not any ‘request’ will suffice: the request must be valid. The factors that do (or may) underpin the ‘validity’ a request have received little consideration in scholarship previously. The bulk of this paper will therefore focus on trying to unpick them and their relevance to collective self-defence actions. Such factors include who validly can make a request for aid, to whom that request must be addressed, the form of the request (e.g., whether it must be made publicly and/or formally) and the timing of the request.

• Presentation Conference Type: Presentation / Talk
• Start Date: Mar 14, 2023
• End Date: Mar 14, 2023
• Deposit Date: Mar 16, 2023
• Publicly Available Date: Mar 16, 2023
• Public URL: https://uwe-repository.worktribe.com/output/10555102
• Related Public URLs: https://www.liverpool.ac.uk/law/research/international-law-and-human-rights-unit/