In addition to speaking on the ICC roundtable at ISA San Diego I presented a paper on international law and the US-UK relationship. The paper is online at the ISA paper archive. As is often the case, the paper evolved beyond the abstract that was submitted last year. In the paper online I focus on the specific question of what American support for preventive military action means for UK policymakers and situate the discussion in the context of possible action against Iran.
Essentially, I explore the anatomy of the dilemma facing Prime Minister Cameron if the US uses, or backs the use of, preventive military force based on the post-9/11 revisionist view of the state’s inherent right to use force in self-defence.
This revisionism was articulated most obviously in the National Security Strategy of 2002, which insisted that we “must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.” I point out in the paper that the Obama administration has continued to push this line, particularly with respect to its drone programme. If anything, the Obama administration goes further when it suggests that there is ‘increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups’ (John Brennan, Harvard Law School, 16 September 2011).
This possibly puts the Prime Minister in a difficult position because he may get a different legal opinion from British government lawyers. In March 2002, for instance, the UK Minister of Defence Geoff Hoon raised anticipatory self-defence as a possible legal basis for war against Iraq. Yet the UK Attorney General sent him a letter making it clear this was not an argument he could support. If this is still the view of government lawyers in the UK then Cameron, like Blair in 2002, might have to pause before extending UK support for preventive military action.
Of course, Cameron’s difficulties are perhaps even more acute than Blair’s in 2002. His government is dependent on the support of Liberal Democrat MPs and the Liberal Democrats have traditionally insisted on an international legal mandate for the use of force. If UK government lawyers do not accept Washington’s legal argument and if Cameron does not accept the legal advice of UK lawyers then support for preventive military action could have major repercussions for coalition government.
Cameron’s dilemma, I suggest, might be understood in terms of the tension between offensive and defensive realists. These are terms associated with the neorealist theory of John Mearsheimer but I’m using them in this paper to say something about the way policymakers relate to international norms. As well as maximising power, offensive realists maximise political flexibility by offering interpretations of norms that enable the use of that power. Defensive realists, on the other hand, see the normative status quo as something that benefits the national interest and will therefore oppose this kind of norm revisionism.
I try in the paper to import these concepts into the UK context. This might not make the next edit of the paper, having presented and discussed it at ISA. But the paper online offers a British offensive realist position that emphasises the material aspect of UK great power status (Trident, military-intelligence reach); and because this material status is very much tied to the US relationship, offensive realists tend to counsel support for US foreign policy (i.e. bandwagoning) even if that means accepting arguments calling for a revision of international norms.
This potentially clashes with an alternative view of the UK’s great power status. This aspect of the paper is very much informed by Justin Morris’s English School inspired argument (British Journal of Politics and IR 13 2011). Justin argues that there are ideational, as well as material, aspects to great power status. The UK’s status as a great power, in this respect, is very much linked to its position on the Security Council. The implication of this is that the UK has a national interest in being seen to be the defender of the UN system and the associated norms. I describe this as a defensive realist position. It would counsel a policy that distances the UK from policies that undermine the normative status quo.
Cameron’s dilemma, I suggest, is reflected in the competing counsel of these two positions.
The paper then discusses strategies for resolving this dilemma by squaring the two different positions. The first comes under the heading “We’ve been here before”. It tries to capture what Paul Sharp (the discussant on the panel) helpfully termed “Blairite finesse”. The section looks at Blair’s US-UN strategy. This argued that Resolution 1441 ‘implicitly revived’ the legal authority to use force contained in Resolution 678 (1990) and that enabled Blair to square an Atlanticist strategy with a commitment to the UN system. With this in mind, the paper looks at the body of resolutions on Iran as they currently stand. The argument I offer in this section concludes that it would be very difficult to adopt this kind of strategy. This is because the Security Council, probably as a response to the 1441 experience, made certain that the “appropriate responses” to its concern about Iran’s nuclear capabilities were authorised under Article 41 (non-military measures) not Article 42 (military measures) of the UN Charter.
The paper then considers those arguments that suggest preventive military action can be normatively grounded in the consent of a ‘community of democracies’. In a sense, this is a continuation of the position Blair got to in February 2002, when he resorted to attacking the legitimacy of the UN Security Council, in particular the French threat to veto a second resolution. This argument might find some support among British neoconservatives, as found for instance in the Henry Jackson society. It would, however, be difficult to square with the British interest in maintaining the centrality of the Security Council (and the power of the UK veto) in contemporary international society. If the UK’s great power status is tied to its veto power at the Security Council why would it agree to policies that undermine that institution?
Instead of trying to reconcile defensive realists with an offensive realist policy, the paper considers how offensive realists might be reconciled with a defensive realist stance that commits the UK to defending conventional interpretations of international norms. The discursive resources for this strategy already exist and they have been mobilised in the past when the UK has distanced itself from US foreign policy. It generally involves placing an emphasis on the non-diplomatic aspects of the relationship (history, culture, trade, business etc.) that bind the two states together. These are links that the UK Foreign Affairs Committee recently described as ‘broad and deep’. Simply stating these as a means of mitigating any cost to the national interest, however, might not be sufficient to fulfil the UK’s role as ‘a great responsible’ (i.e. a permanent member Security Council member responsible for defending international norms). In this respect, it would help UK policymakers if they could articulate a defence of the normative status quo in ways that cannot be portrayed as ‘anti-American’. The paper concludes that the intellectual resources for this diplomatic strategy lie in Daniel Deudney’s recent articulation of Republican Security Theory.