Close Encounters of A Sovereign Kind

Dino Kritsiotis is Reader in Public International Law at the University of Nottingham in the United Kingdom. He specializes in international law on the use of force and armed conflict, democracy, the United Nations, as well as the history and theory of international law.

I am delighted to accept this invitation of Dapo Akande and Nehal Bhuta of www.ejiltalk.org to open up for further discussion some of the issues raised by my article, “Close Encounters of A Sovereign Kind” (EJIL, Vol. 20, pp. 299–330 (2009)), and I am particularly looking forward to exchanges with my interlocutor Dr. Nikolas Stürchler, of the Directorate of International Law in the Swiss Federal Department of Foreign Affairs, whose important and fascinating contribution to this subject appears as The Threat of Force in International Law (2007), published by Cambridge University Press. That work very much repays fine study, and I particularly appreciated much of its methodological emphasis and preoccupations: this, as readers will know, is where a good deal of my own scholarship and sympathies lie. For this forum, then, it would be useful for me to sketch some general points and themes emanating from the article, in order to generate (and to focus) the course of our deliberations over coming days.

1.     Perhaps something should be said in the first instance of the choice of topic; it will be recalled that other articles in the second symposium issue on the use of force for the 20th anniversary volume covered the rise of international criminal law (Kenneth Anderson (American University)), the use of force by terrorists (Christian Tams (Glasgow)) and actions against piratical activities off the coast of Somalia (Tullio Treves (International Tribunal of the Law of the Sea)). All of these are obvious staples if we are thinking of contemporary challenges to, or developments of, the normative arrangements for force and security that succeeded the Second World War—and, I would argue, it is precisely where we would want to place treatment of the topic of “threats” of force; as I tried to indicate in the introduction to the article, there is a tendency not to credit the legal fact of threats of force as often we do the legal fact of the use of force, but once we start doing so, we tend to break up the world of political realities into much more discrete and interesting components (arguably as the 1945 United Nations Charter envisaged us to do).

2.     This tendency interests me—why is it there? what could possibly explain it? what ought to be the rival tendency or tendencies?—and it encourages the observer to start taking facts (at the very least, all of the known or presented facts) more seriously: enhancements of a British naval presence around the Falkland Islands have recently been reported in certain sections of the British press (though the UK Ministry of Defence has argued that this presence is not new); in November 2009, North Korea threatened to take “merciless military measures” along a disputed maritime border with South Korea; and the recent hearings of the Chilcot Inquiry on Iraq in the United Kingdom have left us in no doubt that “threats” (including threats of force!) played an integral part in the relationship of the United Kingdom and the United States with Iraq prior to the Operation Iraqi Freedom of March 2003. (I try and retrace some of these facts in the third section of my article, “The Virtue of Threats of Force: Iraq and the Perfect Peacekeepers”, at pp. 308–316).* One has the feeling that public international lawyers are not alone in failing to make these depictions: consider the innovative historical recounting of the years preceding the Second World War in Nicholas Baker’s Human Smoke: The Beginning of World War II, the End of Civilizations (which I mention in my article at p. 329), which sets its sights on the facts from the point of view of threats of war and force (broadly conceived). It makes for compelling reading, and the reader feels as if something new has emerged—but the materials has always been there for us to discern and to interpret!

3.     In some measure this is all due to the consciousness with which we approach history and historical material—but it is also to do with our own legal consciousness: for a good while, perhaps convenient to suit the practices of Cold War politics, the prohibition of the threat of force seemed to be eclipsed by other considerations—consider the turn of the literature in the first generation of the United Nations—but it always remained an integral part of the text of Article 2 (4) of the United Nations Charter. (This point, of course, matters, as it goes to the precise scope of the provision, of what is forbidden as a matter of Charter law and what is not, which is why I write in the article of “two prohibitions standing together” (p. 304); it matters, too, from the perspective of the kind of empirical evidence needed to adduce each of these propositions as customary law (see p. 328) and, of course, jus cogens). I think it is worthwhile pursuing this path, because it more appropriately maps out the full expanse of this Charter provision, and it makes quite clear that we really have one more rule to contend with than just the prohibition of the use of force!

4.     These remarks go to the point of the formal propositions of law contained in Article 2 (4) of the Charter. In terms of conceptual analysis, however, the jurisprudence of the International Court of Justice has sided with the notion of “idiomatic unity” (pace Stürchler) where, as I say at p. 304, “what goes for one manifestation of force must go for the other” (manifestation was a very helpful word here to use here, as it covers both the “threat” and the “use” of force, precisely the point of the Court in its Nuclear Weapons advisory opinion of July 1996). Building upon this jurisprudence, I came up with the concept of the application of force as a good and convenient way of making reference to the law for both the “threat” and the “use” of force: it allows us to capture the Court’s sense of parity of treatment, and presents us with new—but unified—conceptual language. However, while there is considerable sense and convenience in us adopting this position, one should avoid uncritical embraces: in the article, I detail the difficulties in its application to Operation Desert Fox in December 1998 (pp. 309–310), but one could have equally used the “threat” narrative that predated the use of force in the form of Operation Iraqi Freedom (and which I mention at p. 302): is Security Council Resolution 1441 (2002) to be regarded as a threat of force? If so, could we regard it as a lawful threat of force by virtue of the fact that it was issued by the Security Council? And how/why should our position change if we go on to regard Operation Iraqi Freedom (the use of force to which the “threat” of Security Council Resolution 1441 relates) as an unlawful use of force?

5.     Perhaps this degree of formal mechanics is not the best way of approaching the cut and thrust of political life; perhaps it is testament to the problematique of equating “threats” of force with “uses” of force, and a fair dose of the article is given over to calibrating how broadly it is that we might perceive “threats of force” as a matter of public international law and how this might affect our overall analysis: I attempt to utilize the no-fly zone policy of Operation Provide Comfort (1991) to this effect (at pp. 314–316) and in light of the “contextual analysis” promoted by the Court in July 1996 (p. 306), but, as I try to show, matters can become even more intricate when threatening language is used on a recurring or regular basis—or a relationship evolves within an entire culture of threat and counter-threat—as we see with the focus on Iran: this is “the case of the extended hand and the unclenched fist” (pp. 316–322), as President Barack Obama put it in his inaugural address of January 20, 2009. Does the Charter prohibition allow scope for rhetoric—for heightened rhetoric—and is there scope for incorporating “implied threats” in our analysis (as mentioned by Schachter at p. 306)? Some thought is given (at p. 308) to the mechanism which the Court adopted for uses of force in the Nicaragua Case (1986), where it distinguished between “grave” and “less grave” uses of force: would this help us in making sense of and deciphering “threats” of force for the purposes of legal analysis?

Yet, there are several places in the article where I consider the legal position: I dissect the practice of States piece for piece, away from treatments that tend to monumentalize “the hour, the minute, the second of [the] consummation” of force as it were (at p. 301). This might be regarded as a rather precious way of doing things, but I think it vividly exposes how complicated it is for public international lawyers to enter the fray with their analysis: at what point or points are they meant to place their normative marker/s? Indeed, this is how I spend the penultimate section of the article, hypothesizing the relevance of the prohibition on threats of force to the facts of the Corfu Channel Case (1949), at least as presented to the International Court of Justice. There is something rather comforting about taking on historical material that has a clean break with the past; note how the case study of Iraq in 2003—or in 1998—owes much of its existence to Security Council Resolution 678 of November 1990, itself resting on a threat of force (p. 302). Even so, the complexities of the law’s application are no less forbidding than the other case studies offered for consideration in these pages, especially if certain facts begin to speak for themselves. But, in time, a greater historical and legal consciousness might move us in better and more informed directions, offering us greater clarity on this proposition of law and what it means or is meant to mean.

* And, still, this is not a complete account: an excellent portrait for the New Yorkerof U.N. Secretary-General Kofi A. Annan, contains the following passage:

At the end of October, 1998, Baghdad ordered the inspectors to stop all activities. Before long, Washington told the inspectors to pack up and leave in a hurry. A few days later, a fleet of American and British heavy bombers were in the air, less than an hour from their Iraqi targets, when Annan—who had been trying once again to get the Iraqis to reverse their defiant position—received a letter from Saddam agreeing to let the inspections resume. At very nearly the last minute, the White House called the planes back, and for a few weeks the inspectors did resume their dance with the Iraqis, which in early December once again ground to a halt. On the sixteenth of that month, the bombing began.
Philip Gourevitch “The Optimist”, New Yorker, March 3, 2003 (www.newyorker.com/archive/2003/03/03/030303fa_fact1).