Swaine: Prohibiting Threats of Aggression

Edward T. Swaine (George Washington Univ. - Law) has posted Prohibiting Threats of Aggression. Here's the abstract:

Recent events, particularly Russia’s invasion of Ukraine, have revived worries about the international regime regulating the use of force. Vastly less attention has been paid to what often precedes such attacks—threats to use force—and the prohibition on them. While the UN Charter and other legal instruments integrate the threats regime with the regime on actual uses of force, the two regimes are increasingly decoupled, in part because only one considers gradations: the use-of-force regime now identifies more serious variants like aggression and crimes of aggression; threats rules, by contrast, do not. This decoupling reflects real differences in the underlying wrongs, but it is also due to bureaucratic history and path dependence, including reluctance to criminalize threats of aggression while the underlying concept of aggression was still being developed.

As a result, international law and its institutions fail clearly to treat more serious threats, like threats to annex another state’s territory, as graver state conduct—putting aside, that is, whether criminalization is appropriate. This artificially limits the toolkit for addressing incipient aggression of the kind patently evident before Russia’s invasion of Ukraine. It has also impoverished consideration of potential aggression, such as may become inferable from U.S. policy concerning the Panama Canal and Greenland, before positions harden and avoidable consequences come to pass.

This Article proposes clearly defining and recognizing threats of aggression as prohibited state conduct. It evaluates the potential for deterring wrongdoing and proposes concrete and novel ways that institutions could develop and employ the rule. Such an initiative might discourage the most bellicose threats by states and even acts of aggression themselves.