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

Why did the winds of power, culture, and security overturn the legalist bulwarks that had been designed to weather the fiercest geopolitical gusts? To help answer this question, consider the following sentence: "We have to keep defending our vital interests just as before; we can say no, alone, to anything that may be unacceptable." It may come as a surprise that those were not the words of administration hawks such as Paul Wolfowitz, Donald Rumsfeld, or John Bolton. In fact, they were written in 2001 by Vedrine, then France's foreign minister. Similarly, critics of American "hyperpower" might guess that the statement, "I do not feel obliged to other governments," must surely have been uttered by an American. It was in fact made by German Chancellor Gerhard Schr?der on February 10, 2003. The first and last geopolitical truth is that states pursue security by pursuing power. Legalist institutions that manage that pursuit maladroitly are ultimately swept away.

A corollary of this principle is that, in pursuing power, states use those institutional tools that are available to them. For France, Russia, and China, one of those tools is the Security Council and the veto that the charter affords them. It was therefore entirely predictable that these three countries would wield their veto to snub the United States and advance the project that they had undertaken: to return the world to a multipolar system. During the Security Council debate on Iraq, the French were candid about their objective. The goal was never to disarm Iraq. Instead, "the main and constant objective for France throughout the negotiations," according to its UN ambassador, was to "strengthen the role and authority of the Security Council" (and, he might have added, of France). France's interest lay in forcing the United States to back down, thus appearing to capitulate in the face of French diplomacy. The United States, similarly, could reasonably have been expected to use the council -- or to ignore it -- to advance Washington's own project: the maintenance of a unipolar system. "The course of this nation," President Bush said in his 2003 State of the Union speech, "does not depend on the decisions of others."

The likelihood is that had France, Russia, or China found itself in the position of the United States during the Iraq crisis, each of these countries would have used the council -- or threatened to ignore it -- just as the United States did. Similarly, had Washington found itself in the position of Paris, Moscow, or Beijing, it would likely have used its veto in the same way they did. States act to enhance their own power -- not that of potential competitors. That is no novel insight; it traces at least to Thucydides, who had his Athenian generals tell the hapless Melians, "You and everybody else, having the same power as we have, would do the same as we do." This insight involves no normative judgment; it simply describes how nations behave.

The truth, therefore, is that the Security Council's fate never turned on what it did or did not do on Iraq. American unipolarity had already debilitated the council, just as bipolarity paralyzed it during the Cold War. The old power structure gave the Soviet Union an incentive to deadlock the council; the current power structure encourages the United States to bypass it. Meanwhile, the council itself had no good option. Approve an American attack, and it would have seemed to rubber-stamp what it could not stop. Express disapproval of a war, and the United States would have vetoed the attempt. Decline to take any action, and the council would again have been ignored. Disagreement over Iraq did not doom the council; geopolitical reality did. That was the message of Powell's extraordinary, seemingly contradictory declaration on November 10, 2002, that the United States would not consider itself bound by the council's decision -- even though it expected Iraq to be declared in "material breach."

It has been argued that Resolution 1441 and its acceptance by Iraq somehow represented a victory for the UN and a triumph of the rule of law. But it did not. Had the United States not threatened Iraq with the use of force, the Iraqis almost surely would have rejected the new inspections regime. Yet such threats of force violate the charter. The Security Council never authorized the United States to announce a policy of regime change in Iraq or to take military steps in that direction. Thus the council's "victory," such as it was, was a victory of diplomacy backed by force -- or more accurately, of diplomacy backed by the threat of unilateral force in violation of the charter. The unlawful threat of unilateralism enabled the "legitimate" exercise of multilateralism. The Security Council reaped the benefit of the charter's violation.

As surely as Resolution 1441 represented a triumph of American diplomacy, it represented a defeat for the international rule of law. Once the measure was passed after eight weeks of debate, the French, Chinese, and Russian diplomats left the council chamber claiming that they had not authorized the United States to strike Iraq -- that 1441 contained no element of "automaticity." American diplomats, meanwhile, claimed that the council had done precisely that. As for the language of the resolution itself, it can accurately be said to lend support to both claims. This is not the hallmark of great legislation. The first task of any lawgiver is to speak intelligibly, to lay down clear rules in words that all can understand and that have the same meaning for everyone. The UN's members have an obligation under the charter to comply with Security Council decisions. They therefore have a right to expect the council to render its decisions clearly. Shrinking from that task in the face of threats undermines the rule of law.

The second, February 24 resolution, whatever its diplomatic utility, confirmed this marginalization of the security council. Its vague terms were directed at attracting maximal support but at the price of juridical vapidity. The resolution's broad wording lent itself, as intended, to any possible interpretation. A legal instrument that means everything, however, also means nothing. In its death throes, it had become more important that the council say something than that it say something important. The proposed compromise would have allowed states to claim, once again, that private, collateral understandings gave meaning to the council's empty words, as they had when Resolution 1441 was adopted. Eighty-five years after Woodrow Wilson's Fourteen Points, international law's most solemn obligations had come to be memorialized in winks and nods, in secret covenants, secretly arrived at.

APOLOGIES FOR IMPOTENCE

States and commentators, intent on returning the world to a multipolar structure, have devised various strategies for responding to the council's decline. Some European countries, such as France, believed that the council could overcome power imbalances and disparities of culture and security by acting as a supranational check on American action. To be more precise, the French hoped to use the battering ram of the Security Council to check American power. Had it worked, this strategy would have returned the world to multipolarity through supranationalism. But this approach involved an inescapable dilemma: what would have constituted success for the European supranationalists?

The French could, of course, have vetoed America's Iraq project. But to succeed in this way would be to fail, because the declared American intent was to proceed anyway -- and in the process break the only institutional chain with which France could hold the United States back. Their inability to resolve this dilemma reduced the French to diplomatic ankle-biting. France's foreign minister could wave his finger in the face of the American secretary of state as the cameras rolled, or ambush him by raising the subject of Iraq at a meeting called on another subject. But the inability of the Security Council to actually stop a war that France had clamorously opposed underscored French weakness as much as it did the impotence of the council.