The Security Council and the world community

The current (May-June 2003) edition of the authoritative American magazine Foreign Affairs carries a long article by Michael J. Glennon, Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, revealingly entitled “Why the Security Council Failed”.  Glennon’s central argument, if I understand him correctly, is that the Charter rules governing the use of force in international affairs have been flouted, ignored and circumvented so often since World War II that they have effectively ceased to form part of international law, and that accordingly it is no longer contrary to international law for states to act in breach of them.  He attributes this “failure” of the Security Council system not to any shortcomings on the part of UN member states or of the UN itself but to changes in the international power balance and the emergence of a single unchallengeable hyper-power (the US) which can’t be expected voluntarily to accept the constraints imposed by the Charter in deciding when to act, including when to use force, in what it sees as its own best interests.  He quotes with approval Francis Fukuyama as saying that “Americans tend not to see any source of democratic legitimacy higher than the nation state,” although if that’s correct it’s hard to explain why the Americans played the role they did in drawing up the Charter and accepting its obligations.  Glennon continues:

“Europeans see democratic legitimacy as flowing from the will of the international community.  Thus they comfortably submit to impingements on their sovereignty that Americans would find anathema.  Security Council decisions limiting the use of force are but one example [note by BB: but it’s actually the Charter itself, not just individual Security Council decisions made under it, that seek to limit the use of force].  … Although the effort to subject the use of force to the rule of law was the monumental internationalist experiment of the 20th century, the fact is that that experiment has failed.  Refusing to recognise that failure will not enhance prospects for another such experiment in the future.”  

I hope I’m not alone in finding this example of brutal realpolitik, applied to the interpretation of international law by an expert in the field, profoundly depressing, indeed alarming.   The idea that a law ceases to be a law if it is sufficiently often disobeyed seems oddly defeatist, not to say perilous, even if applied only to international as distinct from domestic law.   It’s no doubt true that the US is now so uniquely powerful that it can do what it likes, however illegally, with complete impunity.  But that’s a far cry from saying that international law actually licenses the United States (and presumably any other state that feels sufficiently powerful to get away with it) to use force against another state whenever it feels so inclined and in complete disregard of its existing treaty obligations, simply and unilaterally pronouncing them obsolete.  And to tell the rest of the world that we have got to “recognise” this new American hegemony and “the failure” of the whole UN experiment is surely outrageous.  On the contrary, it’s becoming increasingly clear that the main issue now confronting the rest of the world, and especially the Europeans as the sole potential counter-weight to American power, is finding ways of resisting Washington’s assertion that it is now above the law by persuading its leaders (if not the current administration, then perhaps the next) that even American interests can’t possibly be served by tearing up the Charter and reverting to an international system of jungle law in which the strong can use force against the weak whenever it suits their interests to do so.  Effective resistance to this pernicious and menacing American doctrine will require an unprecedented degree of unity and resolution within the EU.  Tony Blair has made a poor start in this regard by recklessly harnessing himself to the runaway American chariot in the naïve belief that he can thereby slow it down and change its direction.  Experience of US mismanagement in occupied Iraq demonstrates the extent of that illusion.  (And I write as a convinced admirer of America and the Americans:  it’s the present administration and its doctrinal journeymen who I believe need to be resisted at every turn, root and branch.  We need the United States to re-enter the international community in its own interests as much as in ours.)

Q  Ari, two questions on Iraq.  In response to an earlier question, you said the President still hopes to avoid war, and that Saddam Hussein could avoid it by completely and totally disarming, and by going into exile. I’m wondering, are you — is that now the standard? Previously, you’ve obviously said disarmament. But is it now the combination of disarmament and exile?

MR. FLEISCHER: I think the President made it perfectly plain yesterday in the Oval Office and he has said this repeatedly, it’s disarmament and regime change.

Q  So even though the United Nations would sign on to the first part of that, and not to the second, when the President thinks about launching military action, he’s going to think about the combination?

MR. FLEISCHER: The President has made that plain.