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What Future for the UN Charter System of War Prevention?

Published online by Cambridge University Press:  27 February 2017

Richard A. Falk
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Extract

President George W. Bush historically challenged the United Nations Security Council when he uttered some memorable words in the course of his September 12, 2002, speech to the General Assembly: “Will the UN serve the purpose of its founding, or will it be irrelevant?” In the aftermath of the Iraq war there are at least two answers to this question. The answer of the U.S. government would be to suggest that the United Nations turned out to be irrelevant due to its failure to endorse recourse to war against the Iraq of Saddam Hussein. The answer of those who opposed the war is that the UN Security Council served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international law. This difference of assessment is not just factual, whether Iraq was a threat and whether the inspection process was succeeding at a reasonable pace; it was also conceptual, even jurisprudential. The resolution of this latter debate is likely to shape the future role of the United Nations, as well as influence the attitude of the most powerful sovereign state as to the relationship between international law generally and the use of force as an instrument of foreign policy.

Type
Agora: Future Implications of the Iraq Conflict
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 590 - 598
Copyright
Copyright © American Society of International Law 2003

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References

1 Address to the United Nations General Assembly in New York City, 38 Weekly Comp. Pres. Doc. 1529 (Sept. 16, 2002).

2 For representative contributions see The Vietnam War and International Law (Richard A. Falk ed., 4 vols., 1968, 1969, 1972, 1976).

3 Independent International Commission on Kosovo, the Kosovo Report: Conflict, International Response, Lessons Learned 185–98 (2002) [hereinafter Kosovo Report]; I was a member of the commission.

4 Such a practice could be regarded as an informal and substantive extension of the established practice of treating abstentions by permanent members as not blocking decisions by the Security Council despite the wording of Article 27(3) requiring “the concurring votes of the permanent members.” Such a practice shows the degree to which the Security Council was able to contrive ways to overcome a paralysis that would have resulted from an interpretative approach based on textual fidelity, and it is impressive that this approach was established in the midst of the Cold War.

5 These three steps are outlined in Kosovo Report, supra note 3, at 187.

6 A discussion of this challenge and the U.S. response is the theme of my book, Richard A. Falk, The Great Terror War (2003).

7 Initially fully depicted in George W. Bush, Commencement Address at the United States Military Academy in West Point, New York (June 1,2002), 38 Weekly Comp.Pres.Doc. 944 (June 10,2002); given a more enduring and authoritative status-by the emphasis in the official White House document, The National Security Strategy of the United States of America 13–16 (Sept. 17, 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf>.

8 See supra note 1.

9 The most important Security Council resolutions were 678 (1990), 687 (1991), and, of course, 1441 (2002).

10 Transcript of President Bush’s Remarks on the End of Major Combat in Iraq, N.Y. Times, May 2, 2003, at A16.

11 This position is most clearly articulated by Glennon, Michael J., Why the Security Council Failed, Foreign Aff., May/June 2003, 16–35 CrossRefGoogle Scholar; the overall argument is more fully developed in Glennon’s book, Limits of Law, Prerogatives of Power: Interventionism After Kosovo (2001); see also Arend, Anthony C. & Beck, Robert J., International Law and the Use of Force: Beyond the UN Charter Paradigm (1993)Google Scholar; Mark Weisburd, A., Use of Force: The Practice of States Since World War 11 (1997)Google Scholar.

12 See Anne-Marie, Slaughter, Good Reasons for Going Around the U.N., N.Y. Times, Mar. 18, 2003, at A33 Google Scholar.

13 See Krauthammer, Charles, Iraq: A Moral Reckoning, L.A. Times, May 16, 2003, at A29 Google Scholar; Friedman, Thomas L., Bored with Baghdad—Already, N.Y. Times, May 18, 2003, §4, at 13 Google Scholar.

14 For the view that American moralism and legalism has had a detrimental impact on U.S. foreign policy during the first half of the twentieth century, see Kennan, George F., American Diplomacy 1900–1950 (1951)Google Scholar; see also Kissinger, Henry A., Diplomacy 218–45, 762–835 (1994)Google Scholar. For a more general interpretation of the Wilsonian component as a more widely conceived aspect of the overall American foreign policy tradition, see Walter Russell Mead, Special Providence: American Foreign Policy and How it Changed the World 132–73 (2001).

15 Kennedy, Paul, The Rise and Fall of Great Powers: Economic Change and Military Conflict 1500–2000 (1987)Google Scholar.

16 For an argument along these lines, see Boot, Max, George W Bush: The W Stands for Woodrow, Wall St. J., Jul. 1, 2002, at A14.Google Scholar

17 Aside from identifying specific states as “the axis of evil” in the global setting of the war against terrorism, in his West Point speech the president includes some strongly moralistic rhetoric of a visionary quality, quite inimical to the realist tradition. The following excerpt is indicative of the tone and message: “We are in a conflict between good and evil, and America will call evil by its name. By confronting evil and lawless regimes, we do not create a problem, we reveal a problem. And we will lead the world in opposing it.” See supra note 1.

18 See Perle, Richard, Thank God for the Death of the UN: Its Abject Failure Gave Us Only Anarchy, The World Needs Order, Guardian, Mar. 21, 2003, at 26 Google Scholar.

19 For influential comprehensive presentation along these lines, see International Commission on Intervention and State Sovereignty, Report: the Responsibility to Protect (2001).

20 Constructivism as an academic approach to the study of international relations is best explained by Alexander Wendt in his Social Theory of International Politics (1999).

21 For useful overviews of this trend, see Murphy, Sean D., Humanitarian Intervention: The United Nations in an Evolving World (1996)Google Scholar; Wheeler, Nicholas J., Saving Strangers: Humanitarian Intervention in International Society (2000)Google Scholar.

22 For a well-crafted narrow doctrine of humanitarian intervention, see Donnelly, Jack, Universal Human Rights in Theory and Practice 242–60 (2d ed., 2003)Google Scholar. For a generally skeptical set of reflections about claims of humanitarian intervention, see Humanitarian Intervention: Moral and Philosophical Issues (Jokic, Aleksandar ed., 2003)Google Scholar; for a somewhat more optimistic set of accounts, see Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Holzgrefe, J. L. & Keohane, Robert O. eds., 2003)CrossRefGoogle Scholar.

23 For important efforts, see Kosovo Report, note 3; Responsibility to Protect, supra note 19, at 53–57; Lori Fisler Damrosch, Concluding Remarks, in Enforcing Restraint: Collective Intervention In Internal Conflicts 348–67 (Damrosch ed., 1993); and especially, Damrosch, The Inevitability of Selective Response’? Principles to Guide Urgent International Action, in Kosovo and the Challenge of Humanitarian Intervention 405–19 (Albrecht Schnabel & Ramesh Thakur eds., 2001).

24 It may be worth recalling the vigorous U.S. government objections to the Vietnamese intervention in Cambodia, and subsequent occupation, that disrupted the Khmer Rouge genocide. The American position repudiated the humanitarian considerations, emphasizing Vietnamese violation of Cambodian sovereignty and urging immediate withdrawal despite the risk of regenerating a genocidal regime.

25 A more generalized view of the benefits arising from a law-oriented approach is well explained in Rule of Power or Rule of Law? (Deller, Nicole, Makhijani, Arjun, & Burroughs, John eds., 2003)Google Scholar.

26 See Schachter, Oscar, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev. 113 (1986)CrossRefGoogle Scholar.

27 The reference to failure is to challenge the central conclusion of Glennon’s analysis, supra note 11.

28 My assertion is in direct opposition to the inferences drawn by Kagan in his influential book. See Kagan, Robert, Of Paradise and Power: America and Europe in the New World (2003)Google Scholar.