Two faces of the United Nations were prominently on display Sept. 23. One face was that of the new American president, Barack Obama, telling the General Assembly that his nation had “re-engaged the United Nations. We have paid our bills. We have joined the Human Rights Council. (Applause) … We have sought – in word and deed – a new era of engagement with the world. … [W]e will work with the U.N. and other partners to support an enduring peace. … [T]he United Nations … can be an indispensable factor in advancing the interests of the people we serve.” The other face was that of Libyan dictator Muammar al-Qaddafi, making his first U.N. appearance after being in power for 40 years. According to the New York Times report of Qaddafi’s lengthy and rambling speech, he: suggested that those who caused “mass murder” in Iraq be tried; defended the right of the Taliban to establish an Islamic emirate; wondered whether swine flu was cooked up in a laboratory as a weapon; and demanded a thorough investigation of the assassinations of John F. Kennedy and Martin Luther King. He offered to move the United Nations headquarters to Libya because leaders coming here had to endure jet lag and because the understandable security against another attack on New York by Al Qaeda was too stringent. And he repeated his longstanding proposal that Israel and the Palestinian territories be combined into one state called Isratine.1
Qaddafi also denounced the Security Council as “political feudalism for those who have a permanent seat,” and opined that “[i]t should not be called the Security Council [but] the terror council.” At one point in his speech, Qaddafi “waved aloft a copy of the United Nations charter and seemed to tear it, saying he did not recognize the authority of the document,” according to the New York Times. Which figure better embodies the reality and the promise of the United Nations – the young American president or the aging Libyan dictator?Negotiated even as World War II was still raging, the U.N. charter has been a kind of “constitution” of world affairs since 1945. The constitutional character of the charter is made clear in Article 103, which states:
In the event of a conflict between the obligations of members of the United Nations under the present charter and their obligations under any other international agreement, their obligations under the present charter shall prevail.
Indeed, not only do the legal obligations created directly by the charter prevail over all contrary treaty obligations, but even decisions by the Security Council, which member states agree to “accept and carry out” under Art. 25, have been held to supersede contrary treaty obligations, including those arising under human rights instruments. The charter’s foundational place in the scheme of public international law cannot, therefore, be doubted. But does the charter deserve to be the “constitution” for world affairs? Or is it part of a decaying legal structure that no longer serves the world’s needs – if it ever did?In answering that question, we must start by considering what the United Nations originally was designed to do. Obama was right when he said that “[t]he United Nations was born of the belief that the people of the world can live their lives, raise their families, and resolve their differences peacefully.”2 The overarching purpose of the United Nations was – as the opening language of charter’s preamble declares – “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” As Art. 1(1) expresses it, “[t]he Purposes of the United Nations are: 1. To maintain international peace and security.” All other objectives, including the protection of fundamental human rights, were explicitly made subordinate to that goal. Hence, the charter bans outside intervention – not only by individual member states but even by the United Nations itself – “in matters which are essentially within the domestic jurisdiction of any state” (Art. 2(7)). Only if the Security Council authorizes “enforcement measures under Chapter VII” is such intervention lawful (id.). Even forcible intervention to prevent a state from committing genocide against its own people falls under the charter’s general proscription. The reason for the charter’s categorical rule is simple: peace between nations always comes first.3Has the charter served that purpose well? We now have 64 years’ worth of practical experience to tell us, and the answer is “no.” To say that is not to deny that from the end of World War II in 1945 to the collapse of Soviet Communism in 1989, the world – or much of it – enjoyed what some have called the Long Peace. But it is unwarranted to consider that peace as an effect of the charter; other explanations are far more plausible.4First, for most of its existence, the charter was only the de jure constitution for world affairs; de facto, the world was governed by U.S.-U.S.S.R. bipolarity. In other words, the Long Peace was made possible by the understandings that the two super-powers gradually worked out between themselves; the peace held chiefly because of the fear that even low-level armed conflict between them (at least in a zone of significant strategic concern to one or the other) could escalate rapidly into a nuclear holocaust.Second, Europe – the principal scene of the great conflicts of the first half of the 20th century – was exhausted by war and determined not to let it resume, even in a “conventional,” non-nuclear form.Third, the dynamic expansion of global trade in the post-war world brought unprecedented levels of affluence to nations like Japan, Germany and Italy, thus eliminating incentives that had earlier led them to wars of conquest. Finally, as the strategist Edward Luttwak has argued, declining birth rates in several major countries, including the United States and Russia, may be “debellicizing” them.Indeed, the charter not only did not cause the Long Peace, but could not have done so. The charter suffers from a design flaw that could have been cured only if the behavior of nations had undergone radical transformation after 1945. The charter was designed to preserve peace through a collective security system. Art. 1(1) states that the United Nations was intended “to take effective collective measures for the prevention and removal of threats to the peace” (emphasis added). The chief agent for such collective action was, of course, to have been the Security Council, in which the Great Powers of the coalition that had defeated Fascism – the United States, the U.S.S.R., Great Britain, China and (by courtesy) France were permanently entrenched. The theory held that if aggression occurred or was threatened anywhere in the world, the council would mobilize the forces at its disposal to overawe or repel the aggressor. Although the council retained legal discretion not to act,5 Art. 51 – which preserves to member states a limited right to act in self-defense “until the Security Council has taken measures necessary to maintain international peace and security” – encapsulates an implied promise of collective assistance from the council if a member falls victim to an aggressor’s attack. But even from the outset, it was virtually certain that this promise could not be kept.What if, for instance, one or two of the Great Powers that formed the council’s permanent membership were to launch a war of aggression? That Power could easily block collective enforcement measures by the use of its veto; and in any case, would the remaining Powers have the strength – or will – to threaten collective enforcement measures against it? This was not the case when the U.S.S.R. invaded Czechoslovakia in 1968 or when Britain and France attacked Egypt in 1956.6Furthermore, international peace is what economists call a “global public good” that comes at a cost to the providers. Even assuming that the Great Powers usually have incentives to supply global public goods, they will have unavoidable differences over how to share the burdens of providing those benefits. Moreover, incentives to provide public goods “can be overridden by other motivations, or tripped up by free riding. The benefits of supplying global public goods also can be overlooked, misinterpreted or neglected for reasons of incompetence or ideology. The leadership of key states cannot always be relied upon.”7Even in 1945, it was implausible to believe that five Great Powers, jockeying for global or regional dominance and divided by ideological differences, would have found that their (assumedly) shared interest in global peace outweighed vital national interests. And even if they did agree that aggression was to be countered whenever it arose, could they have been expected to agree on what “aggression” was? Should India’s 1961 invasion of the Portuguese enclave of Goa have been seen as illegal aggression – as the U.S. argued? Or should it have been seen – as the Soviets maintained – as the justifiable elimination of one of the last vestiges of European colonialism in Asia?Some defenders of the charter system, while acknowledging its failure to provide international peace through collective security, argue that the most serious defects in the system can be reformed. Qaddafi took that approach in his recent speech; and so, albeit in a different way, did President Obama. (Qaddafi’s proposals were better than Obama’s, if only because they were actionable and specific: there may be merit, e.g., in changing the council’s permanent membership. Obama’s remarks were directed instead to produce what the poet Auden called “new styles in architecture, a change of heart.”8) But most reform proposals on the table do not address fundamental problems. If the council does not provide collective security, what is it for? Unless a persuasive answer is found, it is pointless to debate whether Brazil and India should become permanent council members, or Britain and France cease to be so.The other main defense of the charter system is that it helps to furnish the public good of peace, not through collective security against aggression, but by being a kind of global jury for evaluating proposed uses of force.9 There is some truth to this idea. For one thing, unilateral military interventions like the U.S.-led Gulf War of 2003 are extremely costly for the interveners. By contrast, when the council has authorized outside intervention, as it did in the Gulf War of 1990, nations that do not join the military coalition are more willing to share the costs.10 Second, council authorization legitimizes military intervention. In international affairs involving the use of force, legitimacy is a precious commodity. Fareed Zakaria has even argued that “generating international public support for [the U.S.] view of the world is a core element of power, not merely an exercise in public relations.”11Nonetheless, even if the council can add legitimacy to a military intervention, the many veto points that can obstruct a council decision seriously compromise its effectiveness. Both of the past two U.S. administrations have accordingly gone to war after having tried, but failed, to secure specific council authorization for their interventions: the Clinton administration in Kosovo (1999) and the second Bush administration in Iraq (2003). In both cases the perceived need to intervene, whether to protect against ethnic cleansing (in Kosovo) or to prevent the development and use of weapons of mass destruction (in Iraq), overrode the diplomatic and legal values of strict compliance with the charter process. Without arguing here the merits of either of these two uses of force, it can be said that both the Clinton and Bush administrations agreed that the maintenance of international peace and security require, not only a global jury, but even more, a global sheriff.Until the Security Council is prepared to discharge its responsibilities as global sheriff – and, on the record of over 60 years, it will not do so – then individual nations, ad hoc “coalitions of the willing” or regional alliances like NATO will have to play that role. Ideally, of course, the U.S. will not be compelled to act alone in keeping the world’s peace: The sheriff should try to raise a posse. But the new Obama administration may find, as its immediate predecessors did, that action outside the charter’s strictures may become necessary – perhaps in Iran, North Korea or (now) Pakistan. It may be too soon to say that Obama’s faith in the U.N. is misplaced. But it seems far more likely that Qaddafi’s tiresome frivolity will remain the U.N.’s way of carrying on.
Author: Associate Professor Robert J. Delahunty has taught at the University of St. Thomas School of Law since 2004. He teaches International Law, Genocide and Other Mass Atrocities, Constitutional Law, Conflicts of Laws and Torts. His research interests focus on the law of war.
1 Neil MacFarquhar, Libyan Leader Delivers a Scolding in U.N. Debut, The New York Times (Sept. 24, 2009).2 At least, that is the stated purpose of the United Nations. Recent scholarship has argued that the United Nations owed its origin largely to the thought of British imperial internationalists like Jan Smuts and Alfred Zimmern, who saw it as an organization that would protect the British Empire, cement its ties to the United States and create a working relationship between the Anglo-Americans and the world’s other great power, the Soviet Union. See Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (2009).3 That priority may have been a mistake. Mass murders and genocide appear to be even more lethal than war. See Daniel Jonah Goldhagen, Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity, 55-6 (2009).4 For analysis of the statistical evidence of the incidence of wars in the post-1945 period, see Robert J. Delahunty, Paper Charter: Self-Defense and the Failure of the United Nations Collective Security System, 56 Cath. U.L. Rev. 871, 926-33 (2007).5 This point is emphasized in Adam Roberts and Dominik Zaum, Selective Security: War and the United Nations Security Council Since 1945 (2009).6 When the U.S. thwarted the Anglo-French invasion, it did not rely on the council to do so. 7 Scott Barrett, Why Cooperate? The Incentive to Supply Global Public Goods, 11 (2007); see also id. at 117-18.8 W.H. Auden, “Petition,” available at http://poetry.poetryx.com/poems/51/.9 See, e.g., Thomas M. Franck, When, If Ever, May States Deploy Military Force Without Prior Security Council Authorization, 5 Wash. U. J.L. & Pub. Pol’y 51, 53 (2001).10 See Barrett, supra, 108-12.11 Fareed Zakaria, The Post-American World, 248 (2009); see generally Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (2007).
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