Why the Security Council Failed

Michael J. Glennon

From Foreign Affairs, May/June 2003

Summary:  One thing the current Iraq crisis has made clear is that a grand experiment of the twentieth century--the attempt to impose binding international law on the use of force--has failed. As Washington showed, nations need consider not whether armed intervention abroad is legal, merely whether it is preferable to the alternatives. The structure and rules of the UN Security Council really reflected the hopes of its founders rather than the realities of the way states work. And these hopes were no match for American hyperpower.

Michael J. Glennon is Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University and the author, most recently, of Limits of Law, Prerogatives of Power: Interventionism After Kosovo

DEATH OF A LAW

Another general source of disagreement that has undermined the UN concerns when international rules should be made. Americans prefer after-the-fact, corrective laws. They tend to favor leaving the field open to competition as long as possible and view regulations as a last resort, to be employed only after free markets have failed. Europeans, in contrast, prefer preventive rules aimed at averting crises and market failures before they take place. Europeans tend to identify ultimate goals, try to anticipate future difficulties, and then strive to regulate in advance, before problems develop. This approach suggests a preference for stability and predictability; Americans, on the other hand, seem more comfortable with innovation and occasional chaos. Contrasting responses across the Atlantic to emerging high-technology and telecommunications industries are a prime example of these differences in spirit. So are divergent transatlantic reactions to the use of force.

More than anything else, however, it has been still another underlying difference in attitude -- over the need to comply with the UN's rules on the use of force -- that has proved most disabling to the UN system. Since 1945, so many states have used armed force on so many occasions, in flagrant violation of the charter, that the regime can only be said to have collapsed. In framing the charter, the international community failed to anticipate accurately when force would be deemed unacceptable. Nor did it apply sufficient disincentives to instances when it would be so deemed. Given that the UN's is a voluntary system that depends for compliance on state consent, this short-sightedness proved fatal.

This conclusion can be expressed a number of different ways under traditional international legal doctrine. Massive violation of a treaty by numerous states over a prolonged period can be seen as casting that treaty into desuetude -- that is, reducing it to a paper rule that is no longer binding. The violations can also be regarded as subsequent custom that creates new law, supplanting old treaty norms and permitting conduct that was once a violation. Finally, contrary state practice can also be considered to have created a non liquet, to have thrown the law into a state of confusion such that legal rules are no longer clear and no authoritative answer is possible. In effect, however, it makes no practical difference which analytic framework is applied. The default position of international law has long been that when no restriction can be authoritatively established, a country is considered free to act. Whatever doctrinal formula is chosen to describe the current crisis, therefore, the conclusion is the same. "If you want to know whether a man is religious," Wittgenstein said, "don't ask him, observe him." And so it is if you want to know what law a state accepts. If countries had ever truly intended to make the UN's use-of-force rules binding, they would have made the costs of violation greater than the costs of compliance.

But they did not. Anyone who doubts this observation might consider precisely why North Korea now so insistently seeks a nonaggression pact with the United States. Such a provision, after all, is supposedly the centerpiece of the UN Charter. But no one could seriously expect that assurance to comfort Pyongyang. The charter has gone the way of the Kellogg-Briand Pact, the 1928 treaty by which every major country that would go on to fight in World War II solemnly committed itself not to resort to war as an instrument of national policy. The pact, as the diplomatic historian Thomas Bailey has written, "proved a monument to illusion. It was not only delusive but dangerous, for it ... lulled the public ... into a false sense of security." These days, on the other hand, no rational state will be deluded into believing that the UN Charter protects its security.

Surprisingly, despite the manifest warning signs, some international lawyers have insisted in the face of the Iraq crisis that there is no reason for alarm about the state of the UN. On March 2, just days before France, Russia, and China declared their intention to cast a veto that the United States had announced it would ignore, Anne-Marie Slaughter (president of the American Society of International Law and dean of Princeton's Woodrow Wilson School) wrote, "What is happening today is exactly what the UN founders envisaged." Other experts contend that, because countries have not openly declared that the charter's use-of-force rules are no longer binding, those rules must still be regarded as obligatory. But state practice itself often provides the best evidence of what states regard as binding. The truth is that no state -- surely not the United States -- has ever accepted a rule saying, in effect, that rules can be changed only by openly declaring the old rules to be dead. States simply do not behave that way. They avoid needless confrontation. After all, states have not openly declared that the Kellogg-Briand Pact is no longer good law, but few would seriously contend that it is.

Still other analysts worry that admitting to the death of the UN's rules on the use of force would be tantamount to giving up completely on the international rule of law. The fact that public opinion forced President Bush to go to Congress and the UN, such experts further argue, shows that international law still shapes power politics. But distinguishing working rules from paper rules is not the same as giving up on the rule of law. Although the effort to subject the use of force to the rule of law was the monumental internationalist experiment of the twentieth century, the fact is that that experiment has failed. Refusing to recognize that failure will not enhance prospects for another such experiment in the future.

Indeed, it should have come as no surprise that, in September 2002, the United States felt free to announce in its national security document that it would no longer be bound by the charter's rules governing the use of force. Those rules have collapsed. "Lawful" and "unlawful" have ceased to be meaningful terms as applied to the use of force. As Powell said on October 20, "the president believes he now has the authority [to intervene in Iraq] ... just as we did in Kosovo." There was, of course, no Security Council authorization for the use of force by NATO against Yugoslavia. That action blatantly violated the UN Charter, which does not permit humanitarian intervention any more than it does preventive war. But Powell was nonetheless right: the United States did indeed have all the authority it needed to attack Iraq -- not because the Security Council authorized it, but because there was no international law forbidding it. It was therefore impossible to act unlawfully.

HOT AIR

These, then, were the principal forces that dismasted the Security Council. Other international institutions also snapped in the gale, including NATO -- when France, Germany, and Belgium tried to block it from helping to defend Turkey's borders in the event of a war in Iraq. ("Welcome to the end of the Atlantic alliance," said François Heisbourg, an adviser to the French foreign ministry).