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Michael Glennon
Reprinted from Frankfurter Allegemeine
Zeitung
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In assessing this claim it is useful to start with the United Nations' own statement of the standard by which its system is to be judged. The standard is not “relevance.“ The standard is set out in ringing words in the opening provision of the UN Charter. The objective, the Charter states, is to “save succeeding generations from the scourge of war.“ To this end, it establishes the Security Council, the purpose of which is to “maintain international peace and security.“
By its own standard, the system has failed. Well over a hundred times since the Charter's framing in 1945, member states have used armed force in flagrant disregard of its prohibition, with no plausible claim that their resort to arms was “in response to an armed attack“—which is the only time force may be used under the Charter without Security Council approval. Most recently, NATO's then-19 member states representing 780 million people engaged in the aerial bombing of Yugoslavia without the faintest claim that their act was defensive. And they did so, of course, without even approaching the Security Council for approval, for it was widely recognized that Russia, and perhaps China as well, would veto any proposed intervention to stop ethnic cleansing in Kosovo.
What is the legal significance of this sorry record? We might begin by reminding ourselves that the international legal system is different from domestic legal systems. The international system is voluntarist. Unlike individuals who are subject to domestic law, states are bound only to observe those rules with which they have consented to comply. An individual can hardly reject the prohibition against robbing banks and thereby exempt himself from that rule's application. But a state that rejects a rule is on a different footing because states, in the international system, are both the objects and the makers of the law. States are not bound to rules to which they do not consent.
How do we know to what rules states have consented? At the outset the process is simple: we look at their words, which states embody in treaties. But practice also conveys intent, in states as with individuals. And when practice is later in time and comprised numerous acts of multiple states over many years, we are well to heed those acts as a truer indicium of state intent than words of an earlier era.
Thus it hardly takes an international law scholar to realize that the infamous Kellogg-Briand Pact of 1928—by which every major belligerent in World War II committed itself to foregoing war as an instrument of national policy—has long been a dead letter. It is no accident that North Korea today so insistently seeks a non-aggression pact with the United States. If the UN Charter were still good law, North Korea would of course require no such assurance to protect itself from an American attack, for the Charter was intended to be the mother of all non-aggression pacts, precluding for all time the need for states to seek such assurances. But who seriously would advise the North Koreans today that they need no non-aggression pact with the United States because the UN Charter protects them?
The Charter, tragically, has gone the way of the Kellogg-Briand Pact. It has fallen into desuetude, having been superseded by state practice altogether inconsistent with its lofty ideals. It has been overtaken by the atavistic violence that has defeated efforts of states to define the crime of aggression that is set out in the statute of the International Criminal Court—which the Court is some day expected to prosecute and punish. The harsh reality is that there is no consensus today among states as to when use of force is appropriate.
This fundamental philosophical difference is one key reason for the breakdown of the Security Council in dealing with Iraq. Another is the fact of American unipolarity and the incentives that unipolarity generates. France, Russia, and China have in recent years undertaken as a central objective of their foreign policy to return to world to a multipolar configuration of power. Germany has itself recently become a party to this project. The United States, on the other hand, is irrevocably committed to maintaining a unipolar world. The national security strategy statement adopted last fall said that “[o]ur forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States.“ It can come as no surprise that a collision occurred in the Security Council: America and its power competitors are committed to incompatible long-term strategic goals. Each uses the Security Council (as well as other international institutions such as NATO) as an instrument for seeking to advance that goal. When the lever is pulled in opposite directions, the result is predictable: paralysis.
A third force, lingering for years in NATO, has emerged since the Second Gulf War to afflict broader collective security efforts. That is the so-called “free-rider“ phenomenon. This describes the tendency of states, like individuals, to avoid doing their proportionate share when another actor is willing to do more. This phenomenon has loomed large in efforts to resolve the threat of a nuclearized North Korea. States that earlier had excoriated the United States for “unilateralism“ suddenly have been nowhere to be found when it comes to joining in an effort curb North Korea's nuclear program. Their hesitation has been entirely rational: Why expend a state's treasure, let alone expose its people to apocalyptic risk, when another state is willing to undertake the entire burden itself? This is the situation in which the United States increasingly finds itself as “policeman of the world.“ The more the United States acts unilaterally to provide collective security, the smaller the incentive provided other states to participate.
These are some, though not all, of the reasons why the UN's system of collective security has failed. These forces are exogenous to the architecture of the United Nations; they do not flow from design flaws within the organizational structure of the Security Council. Rather, they are structural characteristics of the international system, features of the way states behave in a system with no centralized authority. Accordingly, remedies directed at “fixing“ the UN blueprint by, for example, adding more developing states to the Security Council, or by diluting the power of the veto accorded the permanent five members of the Council—these solutions miss the point. The problems lie not within the architecture of the United Nations but within the dynamics of the state system. The ground on which such an edifice must stand is not yet ready to support it. The preconditions necessary for creating a functioning legalist regime to control the use of force are not present.
This is the discouraging response that must be made to those who demand that the realists present an alternative solution. Within the legalist paradigm, there is no solution: the current institution cannot work, nor can any alternative work. The Council's recent lifting of sanctions against Iraq, while a welcome step toward reconciliation, hardly presents a counter-example. Constrained by the need to restore contractual integrity to Iraqi oil sales, the United States did not have the legal option of avoiding the Council, as it had earlier, nor did its European power competitors have the political option of blocking that action and taking the blame for continued Iraqi civilian suffering.
The question on which policy-makers might most usefully focus, therefore, is not how the operation of the Security Council can be improved. Given the structural limitations it confronts, improvements in performance can be only marginal. Rather, the question is how a given state can most effectively recalibrate its foreign policy to protect its national interest under conditions of unipolarity.
As long-standing relationships are re-thought in this new light, an immediate instinct of some European policy-makers will be to attempt to use those international institutions in which the United States participates to check American power, as did France, Russia and Germany in the Security Council prior to the recent war. In the short term, such “coming-of-age“ initiatives may on occasion succeed. However, the long-term consequence will simply be to instill in American policy-makers an incentive to go it alone. There is, after all, no reason why a state that seeks to enhance its power—meaning simply its ability to get what it wants—should submit to seemingly avoidable limits. Any nation would chafe at the thought of doing so (as did the French at the prospect of having their own multipolarist project undercut by uppity “New Europe“ last year). Far-sighted German statesmen, therefore, will be prudent in attempting to enlist international institutions in the effort to get a leg up on the United States, however “emancipating“ the immediate result. Ultimately, unless “victory“ is defined as forcing the United States to pull back from participating in international institutions, such efforts will be self-defeating.
A more productive approach will lie in understanding more precisely the dynamic that generates contemporary American ambivalence towards international institutions. Because of its preponderant power, U.S. policy-makers now confront a paradox. On the one hand, they must avoid getting locked into a situation in which the United States needs the legitimacy that an institution can confer in order to act effectively. There is no point in being a “hyperpower“ if no significant foreign policy initiative can be implemented without the concurrence of other states. On the other hand, the legitimacy to be conferred by international institutions can, at least in some circumstances, clearly advance American interests. Legitimacy concerns thus pull American policy-makers in opposite directions.
These are only short-term considerations. Conflicting long-term interests make America's calculation even more difficult. The likelihood is that American hegemony will not last forever. Accordingly, it makes sense for the United States to commit itself to at least some international institutions, rules and regimes so that its interests can be protected when its relative advantage in hard power has faded. (Included within the notion of “advantage“ is both capability and will: a dozen carrier battle groups provide no power advantage at all absent a continued willingness to use them.) Weighing against such a commitment, however, is the risk of doing so prematurely, of subjecting American power to multilateral restraints before America's relative power advantage actually begins to wane. Striking the proper balance requires making just the right empirical guess as to how history will unfold—a daunting task for policy-makers in any country.
These considerations suggest that the long trans-Atlantic debate over unilateralism versus multilateralism is misdirected. These are false categories. In many circumstances, these modes of behavior are mutually reinforcing rather than oppositional. Unilateralism can, for example, sometimes enable multilateralism, as it did last winter when the threat of an American attack led Iraq to accept a strict new inspections regime under the auspices of the Security Council. The Security Council benefited from the American threat of unilateral force. In a broader context, American unilateral military might can surely be credited in part with having provided a realm of security within which European integration flourished during the second half of the 20th Century, as Robert Kagan has noted. Multilateralism, similarly, is often directed at expanding the latitude of unilateralism. This is particularly true for the United States. Working with other states softens the jagged edges of American hegemony, breeding less resentment than coercion and bullying. It is far more effective to cause other governments to want what the United States wants than to force them, against their will, to do what the United States wants. Cooperation and consultation, when possible, will prolong American hegemony and make it possible for the United States to act alone when it believes it needs to.
Sensible American policy-makers will therefore realize that the correct question is not whether a given initiative is unilateral or multilateral, but whether it advances American interests. This judgment should be made pragmatically, not ideologically. The outcome mustbe context-dependent, varying with the facts of each case. The Bush Administration was by this standard correct in moving against Afghanistan without Security Council approval; it ill behooves a superpower to seek international approval to respond to an armed attack on its own citizens and territory. Such an action would have led other states to expect American submission to the United Nations in other, future instances where the United States' legitimate interest lies in uncircumscribed freedom of action. In contrast, American policy-makers have been mistaken in resisting the return of UN weapons inspectors to Iraq. The United States has an interest in being believed. If and when weapons of mass destruction are found in Iraq, American credibility will be enhanced by the presence of UN weapons inspectors at their side, able to authenticate American claims. (Moreover, given its earlier experience in Iraq, the International Atomic Energy Agency may be better able to safeguard the security of Iraqi nuclear materials than can the United States acting alone.)
Pragmatism also counsels American policy-makers to tone down the hyperbolic rhetoric of good and evil. Their repeated insistence upon “moral clarity“ in the wars against terrorism and Iraq, like the insistence that other nations are “either for us or against us,“ suggests a world of black and white rather than the multiple shades of gray that characterize all great moral questions. American success in the Cold War was due in no small part to its willingness to recognize that many nations were “for us“ in some ways but quite “against us“ in others. The United States itself made common cause with myriad tyrants on a theory of lesser evil. Today's clarion call of moral purity, suggesting a perfect American identity with the forces of light, no doubt had political utility following September 11 in rallying Americans to the support of their country. There is no shortage of patriotism in the United States today, however, and it would be more useful for the Administration to recognize that many of the issues confronted by the United States and its allies are questions on which reasonable persons can differ. “Every difference of opinion,“ Thomas Jefferson said, “is not a difference of principle.“
One unfortunate upshot of the recent surge in moralistic rhetoric has been the increased resort to systems of validation other than law. Alternative validating systems include notions of legitimacy, justice, natural law and the like. As contrasted with law, such systems present two weaknesses. First, none is based upon consent, which is the element of law that renders it applicable to all actors within a given universe. Only law is truly universal. Second, none is objective. Each lies in the eye of the beholder. However powerful the surrounding rhetoric, claims of “legitimacy“ have no objective force; “legitimacy“ and “justice“ are constructs of the human mind, not something out there, waiting to be discovered. As a result, power and preference underpin these alternative validating systems, which are ultimately products of the same cultural variables that account for the attitudinal divide that has beset legalist efforts to manage the use of force.
There is, in the end, therefore, no alternative to law. Under current conditions, however, humanity's efforts to subject the use of force to the rule of law will prove unavailing. But to relent in those efforts would be a great mistake. Cultures will eventually converge worldwide, as they have in Europe. That dream will one day be realized globally. In the meantime, our aim today must be to ensure that that day is not unnecessarily delayed. Pretending that the current system successfully subjects the use of force to the rule of law can result only in unnecessary delay.
Michael J. Glennon is Professor of Law at the Fletcher School of Law and Diplomacy at Tufts University in Medford, Massachusetts.
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2002 The Fletcher School, Tufts
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