So, Has This Ever Happened Before?

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For the past week or so I’ve been enjoying the start of my sabbatical in New York, as a visiting professor at Columbia this semester. And for the past couple of days I’ve been enjoying – well, experiencing – the chaotic collapse of parts of the city during the UN General Assembly. And today I could enjoy – well, behold – the spectacle of the President of the United States threatening another UN member state with nuclear destruction at the podium of the General Assembly:

http://www.trbimg.com/img-59c133a3/turbine/la-na-trump-un-pictures-20170919/650/650x366
Photo credit LA Times: http://www.latimes.com/world/la-un-general-assembly-live-updates-world-awaits-president-trumps-first-assembly-20170918-htmlstory.html

If this is not twisted enough, now North Korea’s reckless pursuit of nuclear weapons and ballistic missiles threatens the entire world with unthinkable loss of human life.

It is an outrage that some nations would not only trade with such a regime, but would arm, supply, and financially support a country that imperils the world with nuclear conflict. No nation on earth has an interest in seeing this band of criminals arm itself with nuclear weapons and missiles.

The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.

Note the nature of the threat – if the US is forced to defend itself or its allies, it will totally destroy North Korea (not – react to the extent necessary and proportionate; presumably even a preemptive self-defense theory would be on the table). Note also how the United Nations is a ‘they’ rather than a ‘we.’  Question for the readers: has this ever happened before? Shoes have been banged at that podium, of course, and sulfur has been smelt. Yet even at the height of the Cold War, has a head of state of a nuclear-weapons state used this kind of directly threatening language? Or is this simply old-fashioned nuclear deterrence inartfully expressed?

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    Diane Desierto says

    September 19, 2017

    Did POTUS just issue a prohibited threat of the use of force? Somehow his UNGA statement appears more unequivocal than the exchanges described in Guyana v. Suriname, where the arbitral tribunal categorically found that "expulsion from the disputed area of the CGX oil rig and drill ship C.E. Thornton by Suriname on 3 June 2000 constituted a threat of the use of force in breach of the Convention, the UN Charter, and general international law." [Guyana v. Suriname, para. 488(2)]

    Patryk I. Labuda says

    September 19, 2017

    And then there's the spectacle of Secretary General Gutteres proceeding to shake President Trump's hand after his speech (accompanied by a friendly pat on the back from Mr Trump). Dictators, rogue states, nuclear destruction... business as usual at the UNGA?

    Maria Issaeva says

    September 19, 2017

    What a man... The closest I've seen was a statement by Putin (made retroactively) that he was ready to use nuclear weapons during the Crimea's takeover: https://youtu.be/t42-71RpRgI?t=1h29m36s

    Mary Ellen O'Connell says

    September 19, 2017

    Dear Marko and Diane,

    Prime Minister Netanyahu's cartoon drawing of Iran's bomb came to mind when I read 'Rocket Man' ...

    Threats, despite Guyana v. Suriname, are too common and too difficult to enforce to be effectively prohibited. More important than the threat is what it conveys about the U.S. President's position respecting international law on the use of force. And more important than that is what is says about how Pres. Trump may act.

    He may be attempting to frighten China into acting more boldly or South Korea into attempting an unlawful assassination.

    Regardless, his comments mean the U.S. can no longer be an effective participant in negotiations over North Korea. How can there be trust in any agreement with so cavalier about the most important rules in international law that protect human life and the planet?

    Anindya Basarkod says

    September 20, 2017

    Apart from violating perhaps the entire purpose of the United Nations, Trump's statement legitimizes North Korea's propaganda.

    For decades the Kim regime has be pushing its military first agenda based on the alleged threat the US poses to it and its people. It isn't an alleged threat anymore. I cannot think of a way in which Trump could have made his threat clearer.

    Diane Desierto says

    September 20, 2017

    Dear Mary Ellen:

    Agree with the general difficulty of enforcing prohibitions against the threat of the use of force. As to this particular POTUS' willingness to use force (which he already demonstrated with the unilateral April 2017 missile strikes on Syria on the grounds of "vital national security interest" to prevent "the spread and use of deadly chemical weapons"), I'm inclined to think POTUS laid the predicate (by way of threat) of the US' potential justifications for threatening a preemptive use of force (or "total destruction") against North Korea. That hard statement did not appear to leave any room for diplomatic negotiations - and I don't see how the State Department can soften, massage, or interpret that statement in a way that hearkens back to the lawful parameters of the use of force.

    It would be dangerously ironic if North Korea's dictator latches on to that POTUS statement to lend any pretence of justification for another missile launch. Japan, South Korea, and China have every reason to be alarmed at this latest escalation at the head of State level. I agree - POTUS may be taking the alarmist route to impel them to act.

    john r morss says

    September 20, 2017

    If the leadership of NK is smarter than the leadership of US, then NK will cease weapons and delivery testing immediately and instead (and perhaps in collaboration with SK, Japan, PRC, RF) seek action in The Hague against US with respect to above egregious threat to the region. In this way and against all his instincts POTUS may just deliver a peaceful resolution to this crisis.

    Luigi Crema says

    September 21, 2017

    It is a shocking language: "totally destroy" a state is not what you expect to hear from a leader.

    I've to be sincere: my brain in the last years got used to the excesses of Kim Jong-un; I am already getting use not to give too much weight to Trump's words.

    The temptation is to make jokes, blame, and be snob about the attitude of the two leaders who are dealing with incredible light heart with the most serious threat to our world - if this issues wouldn't be that serious.

    I would force myself to abstain from the smile of the intellectual, and just take advantage of EJILTalk to remember Stanislav Petrov, the Russian lieutenant-colonel which had incredible cold blood on September 26th, 1983, avoiding the nuclear catastrophe; the episode inspired a movie and is well-known (http://www.dailymail.co.uk/news/article-505009/September-26th-1983-The-day-world-died.html). It just came to my mind when I read the latest Kim's statements (and then the one by Trump). That's a much better example of what a state-man should do in dealing with nuclear threats.

    Juliette McIntyre says

    September 22, 2017

    It was genuinely appalling. Trump's speech leads me to ponder whether the tables have turned and NK may have a legitimate claim of anticipatory self-defence?

    Kriangsak Kittichaisaree says

    September 22, 2017

    The news of the confrontation between the two Heads of State seems to have overshadowed one milestone event.

    On Wednesday 20 Sept. 2017, the Nuclear Ban Treaty was open for signature. It was signed by at least 50, of whom Guyana, the Holy See, and Thailand were the only three which signed and ratified it on that day. It will come into force after being ratified/acceded to by 50 Parties.

    Why not ask Dennis Rodman, the former NBA player who claims to be the one and only mutual friend of POTUS and the Chairman of the Workers' Party of Korea & supreme leader of DR Korea, to use good offices to end the on-going brinkmanship? International law is like basketball at times, isn't it?

    Maitreyee says

    September 25, 2017

    I may be coming from a different point of view, but it seems to me that NK's threats violated Art. 2(4) in the sense they were threats beyond mere declarations, speeches and tweets (a la Trump), and were accompanied by ICBM tests (that flew across Japan), concrete threats to Guam etc.

    While Trump's stance is definitely not the best (putting it kindly), it can be seen as more legitimate as compared to NK's. I have two reasons for this-

    a. Trump's threat is consistent with the objective of nuclear non proliferation in general and requirement of compliance of NK with UNGA resolutions. The threat NK poses to the peace and security has been repeatedly recognized by UNSC for decades, which is what grants some semblance of legitimacy to Trump's vitriolic statements. I also agree that it does not completely legitimize the threat though, as UNSC sanctions only cover non-forcible sanctions, and not use force to make NK comply. The question of threat to use of force then becomes murky.

    b. If NK is seen as a state that has violated Art. 2(4) with threats, then the statements of Trump can be seen as self defense. Of course threats do not call for armed force to be used as retaliation, but I'm inclined to think that a threat against another threat that violates article 2(4) can be seen as lawful under self defense. It does, however, require a reference to CIL than to Art. 51 of the UN Charter as it hinges on an expansive understanding of self defense.

    Dr. Siddhartha Misra says

    October 26, 2017

    North Korea no doubt through its proliferation spree, irresponsible statements and violation of Japanese air space poses a threat to the peace and security of the world. However in a rule based world governed by Institutional cooperation and multilateral treaty obligations, the statement by Mr Trump sounds more unilateral and jingoist as it is not America alone who feels threatened but NK's attitude is a matter of concern for the whole world. The whole issue has come to be reduced to a logomachy or the war of words between the leaders of two countries i.e., Kim Jong and Donald Trump. The proper course of action in this situation would have been to take a responsible decision by UN Security Council and the UN General Assembly in their duly convened sessions.Such a situation warrants negotiations consultations and third party mediation and in case of their failure the measures such as economic political and diplomatic sanctions as provided under chapter VI and VII of the UN Charter. This is seems would have provided the whole issue a better legitimacy than by recriminations involving big leaders of the world who should think of better things such as removal of poverty and hunger, development, protection of environment, trade issues and cooperation and friendliness among the countries for the welfare of the world.

    Kriangsak Kittichaisaree says

    November 6, 2017

    Dear Marko and Friends,
    Let's look at this carefully:
    http://www.bbc.com/news/world-us-canada-41878123