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

Commentators, meanwhile, developed verbal strategies to forestall perceived American threats to the rule of law. Some argued in a communitarian spirit that countries should act in the common interest, rather than, in the words of Vedrine, "making decisions under [their] own interpretations and for [their] own interests." The United States should remain engaged in the United Nations, argued Slaughter, because other nations "need a forum ... in which to ... restrain the United States." "Whatever became," asked The New Yorker's Hendrik Hertzberg, "of the conservative suspicion of untrammeled power ... ? Where is the conservative belief in limited government, in checks and balances? Burke spins in his grave. Madison and Hamilton torque it up, too." Washington, Hertzberg argued, should voluntarily relinquish its power and forgo hegemony in favor of a multipolar world in which the United States would be equal with and balanced by other powers.

No one can doubt the utility of checks and balances, deployed domestically, to curb the exercise of arbitrary power. Setting ambition against ambition was the framers' formula for preserving liberty. The problem with applying this approach in the international arena, however, is that it would require the United States to act against its own interests, to advance the cause of its power competitors -- and, indeed, of power competitors whose values are very different from its own. Hertzberg and others seem not to recognize that it simply is not realistic to expect the United States to permit itself to be checked by China or Russia. After all, would China, France, or Russia -- or any other country -- voluntarily abandon preeminent power if it found itself in the position of the United States? Remember too that France now aims to narrow the disparity between itself and the United States -- but not the imbalance between itself and lesser powers (some of which Chirac has chided for acting as though "not well brought-up") that might check France's own strength.

There is, moreover, little reason to believe that some new and untried locus of power, possibly under the influence of states with a long history of repression, would be more trustworthy than would the exercise of hegemonic power by the United States. Those who would entrust the planet's destiny to some nebulous guardian of global pluralism seem strangely oblivious of the age-old question: Who guards that guardian? And how will that guardian preserve international peace -- by asking dictators to legislate prohibitions against weapons of mass destruction (as the French did with Saddam)?

In one respect James Madison is on point, although the communitarians have failed to note it. In drafting the U.S. Constitution, Madison and the other founders confronted very much the same dilemma that the world community confronts today in dealing with American hegemony. The question, as the framers posed it, was why the powerful should have any incentive to obey the law. Madison's answer, in the Federalist Papers, was that the incentive lies in an assessment of future circumstances -- in the unnerving possibility that the strong may one day become weak and then need the protection of the law. It is the "uncertainty of their condition," Madison wrote, that prompts the strong to play by the rules today. But if the future were certain, or if the strong believed it to be certain, and if that future forecast a continued reign of power, then the incentive on the powerful to obey the law would fall away. Hegemony thus sits in tension with the principle of equality. Hegemons have ever resisted subjecting their power to legal constraint. When Britannia ruled the waves, Whitehall opposed limits on the use of force to execute its naval blockades -- limits that were vigorously supported by the new United States and other weaker states. Any system dominated by a "hyperpower" will have great difficulty maintaining or establishing an authentic rule of law. That is the great Madisonian dilemma confronted by the international community today. And that is the dilemma that played out so dramatically at the Security Council in the fateful clash this winter.

BACK TO THE DRAWING BOARD

The high duty of the Security Council, assigned it by the charter, was the maintenance of international peace and security. The charter laid out a blueprint for managing this task under the council's auspices. The UN's founders constructed a Gothic edifice of multiple levels, with grand porticos, ponderous buttresses, and lofty spires -- and with convincing façades and scary gargoyles to keep away evil spirits.

In the winter of 2003, that entire edifice came crashing down. It is tempting, in searching for reasons, to return to the blueprints and blame the architects. The fact is, however, that the fault for the council's collapse lies elsewhere: in the shifting ground beneath the construct. As became painfully clear this year, the terrain on which the UN's temple rested was shot through with fissures. The ground was unable to support humanity's lofty legalist shrine. Power disparities, cultural disparities, and differing views on the use of force toppled the temple.

Law normally influences conduct; that is, of course, its purpose. At their best, however, international legalist institutions, regimes, and rules relating to international security are largely epiphenomenal -- that is, reflections of underlying causes. They are not autonomous, independent determinants of state behavior but are the effects of larger forces that shape that behavior. As the deeper currents shift and as new realities and new relations (new "phenomena") emerge, states reposition themselves to take advantage of new opportunities for enhancing their power. Violations of security rules occur when that repositioning leaves states out of sync with fixed institutions that cannot adapt. What were once working rules become paper rules.

This process occurs even with the best-drafted rules to maintain international security, those that once reflected underlying geopolitical dynamics. As for the worst rules -- those drafted without regard to the dynamics -- they last even less time and often are discarded as soon as compliance is required. In either case, validity ultimately proves ephemeral, as the UN's decline has illustrated. Its Military Staff Committee died almost immediately. The charter's use-of-force regime, on the other hand, petered out over a period of years. The Security Council itself hobbled along during the Cold War, underwent a brief resurgence in the 1990s, and then flamed out with Kosovo and Iraq.

Some day policymakers will return to the drawing board. When they do, the first lesson of the Security Council's breakdown should become the first principle of institutional engineering: what the design should look like must be a function of what it can look like. A new international legal order, if it is to function effectively, must reflect the underlying dynamics of power, culture, and security. If it does not -- if its norms are again unrealistic and do not reflect the way states actually behave and the real forces to which they respond -- the community of nations will again end up with mere paper rules. The UN system's dysfunctionality was not, at bottom, a legal problem. It was a geopolitical one. The juridical distortions that proved debilitating were effects, not causes. "The UN was founded on the premise," Slaughter has observed in its defense, "that some truths transcend politics." Precisely -- and therein lay the problem. If they are to comprise working rules rather than paper ones, legalist institutions -- and the "truths" on which they act -- must flow from political commitments, not vice versa.