What
Future for the
UN Charter System
of War Prevention?
By
Richard
Falk
Visiting Distinguished Professor, Global Studies,
University of California, Santa Barbara and Milbank
Professor of International Law Emeritus, Princeton
University
TFF
associate
June 23, 2003
Framing an
Inquiry
President George W. Bush historically challenged the
United Nation 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?" (1)
In the aftermath of the Iraq War there are at least two
answers to this question. The answer of the US Government
would be to suggest that the UN 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 UNSC 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.
These underlying concerns antedate the recent
preoccupation, and were vigorously debated during the
cold war era, especially during the latter stages of the
Vietnam War. (2) But the present context of the debate as
to the interplay between sovereign discretion on matters
of force and UN authority was framed in the late 1990s
around the topic of humanitarian intervention, especially
in relation to the Kosovo War. The burning issue in the
Kosovo setting was whether "a coalition of the willing"
acting under the umbrella of NATO was legally entitled to
act as a residual option given the perceived UNSC
unwillingness to mandate a use of force despite the
urgent humanitarian dangers facing the Albanian Kosovars.
In that instance, a formal mandate was sought and
provided by NATO, but without what seemed to be textually
required by Article 53(1) of the UN Charter, that is,
lacking some expression of explicit authorization by the
UN Security Council. Legal apologists for the initiative
insisted that such authorization could be derived from
prior UN Security Council resolutions, as well as from
the willingness of the UN to manage the post-conflict
civil reconstruction of Kosovo that amounted to a tacit
assent, providing the undertaking with a retroactive
certification of legality. To similar effect were
arguments suggesting that the failure of the Security
Council to adopt a resolution of censure introduced by
those members opposed to the Kosovo War amounted to an
implied acknowledgement of legality.
But the tension with the Charter rules on the use of
force was so clear that these efforts at legalization
seemed lame, and a far preferable approach was adopted by
the Independent International Commission on Kosovo, which
concluded that the intervention in Kosovo was "illegal,
but legitimate." (3) The troublesome elasticity of this
doctrine was conditioned in two ways: by suggesting the
need for the intervening side to bear a heavy burden of
persuasion as to the necessity of intervention to avoid
an impending or ongoing humanitarian catastrophe; and by
a checklist of duties that need to be fulfilled by the
intervenors to achieve legitimacy, emphasizing the
protection of the civilian population, adherence to the
international laws of war, and a convincing focus on
humanitarian goals, as distinct from economic and
strategic aims. In Kosovo the moral and political case
for intervention seemed strong: a vulnerable and long
abused majority population facing an imminent prospect of
ethnic cleansing by Serb rulers, a scenario for effective
intervention with minimal risks of unforeseen negative
effects or extensive collateral damage; and the absence
of significant non-humanitarian motivations on the
intervening side. As such, the foundation for a
principled departure under exceptional circumstances from
a strict rendering of Charter rules on the use of force
seemed present. The legality/legitimacy gap, however, was
recognized to be unhealthy, eroding the authority of
international law over time, and the Commission
recommended strongly that it be closed at the earliest
possible time by UN initiative. Its report urged, for
example, that the Permanent Members of the Security
Council consider agreeing not to cast adverse votes in
the setting of impending humanitarian catastrophes. (4)
The adoption of such a practice would have enabled the
Kosovo intervention to be approved by the Security
Council even in the face of Russian and Chinese
opposition, which would have been registered in the
debate, and by way of abstentions.
More ambitiously, the Commission proposed a three-step
process designed to acknowledge within the United Nations
Charter System the enforcement role of the Organization
in contexts of severe human rights violations. The first
step consists of a framework of principles designed to
limit claims of humanitarian intervention to a narrow set
of circumstances, and to assure that the dynamics of
implementation adhere to international humanitarian law
and promote the well being of the people being protected.
The second step is to draft a resolution for adoption by
the General Assembly in the form of a Declaration on the
Right and Responsibility of Humanitarian Intervention
that seeks to reconcile respect for sovereign rights, the
duty to implement human rights, and the responsibility to
prevent humanitarian catastrophes. The third step would
be to amend the Charter to incorporate these changes as
they pertain to the role and responsibility of the UN
Security Council, and other multilateral frameworks and
coalitions that undertake humanitarian interventions. (5)
It should be noted that no progress toward closing this
legitimacy/legality gap by formal or informal action
within the United Nations can be anticipated at this
time. There exists substantial opposition, especially
among Asian countries, to any expansion of the
interventionary mandate of the United Nations and other
political actors in the setting of human rights. This
opposition has deepened since Kosovo because of the
controversial uses of force claimed by the United States
in its anti-terrorism campaign that have combined
security and human rights arguments.
Iraq tested the UN Charter system in a way
complementary to that associated with the Kosovo
controversy. The Iraq test was associated with the impact
of the September 11 attacks and the challenge of
mega-terrorism. (6) The initial American military
response to the al Qaeda attack and continuing threat was
directed at Afghanistan, a convenient territorial target
because it both seemed to be the nerve center of the
terrorist organization and a country ruled by the Taliban
regime that allowed al Qaeda to operate extensive
terrorist training bases within its territory and lacked
some crucial attributes needed for full membership in
international society, including the failure to obtain
widespread diplomatic recognition. The reasonableness of
waging war to supplant the Taliban regime and destroy the
al Qaeda base of operations in Afghanistan was widely
accepted by the entire spectrum of countries active in
world politics, although there was only the most minimal
effort by the U.S. Government to demonstrate that it was
acting within the UN framework. The al Qaeda
responsibility for September 11 was amply demonstrated,
the prospect of future attacks seemed great and possibly
imminent, and the American capability to win the war at a
proportional cost seemed convincing. There was no
significant international opposition to the American
initiation and conduct of the Afghanistan War, and
varying levels of support from all of America's
traditional allies. International law was stretched in
these novel circumstances to provide a major state with
the practical option of responding with force to one
important source of mega-terrorist warfare.
But when the Iraq phase of the September 11 response
beyond Afghanistan began to be discussed by American
leaders, most reactions around the world were highly
critical, generating a worldwide peace movement dedicated
to avoiding the war and a variety of efforts by
governments to urge an alternative to war. The main
American justification for proceeding immediately against
Iraq was articulated in the form of a claimed right of
preemptive warfare, abstractly explained as necessary
conduct in view of the alleged interface between weaponry
of mass destruction and the extremist tactics of the
mega-terrorists. (7) It was argued that it was
unacceptable in these circumstances for the United States
to wait to be attacked, and that preemptive warfare was
essential to uphold the security of the "civilized"
portion of the world. Bush in his talk at the United
Nations said, "We cannot stand by and do nothing while
dangers gather." (8) It was this claim that was
essentially rejected by the UN Security Council refusal
to go along with US/UK demands for a direct endorsement
of an enforcement. The precise American contention was
more narrowly and multiply framed in relation to the
failures of Iraq to cooperate fully with the UN
inspectors, the years of non-implementation of earlier
Security Council resolutions imposing disarmament
obligations on Iraq after the Gulf War, and, above all,
by the supposedly heightened threat posed by Iraq's
alleged arsenal of weapons of mass destruction. (9)
The Iraq War was initiated, and ended militarily with
rapid American battlefield victories. President Bush so
declared, "In the battle of Iraq, the United States and
our allies have prevailed. And now our coalition is
engaged in securing and reconstructing that country."
(10) The president carefully described the military
operations as "a battle" rather than as "a war,"
subsuming the attack on Iraq within the wider, ongoing
war against global terrorism, and implying that the
undertaking should be seen as an element in the
anti-terrorism campaign launched in response to the
September 11 attacks. Again, as in relation to Kosovo,
the UNSC refrained from censuring the United States and
its allies, and the UN seems fully willing to play
whatever part is assigned to it during the current period
of military occupation and political, economic, and
social reconstruction, so far under exclusive U.S./U.K.
control. Such acquiescence is particularly impressive
given the failure of the victorious coalition in the Iraq
War to find any evidence of weapons of mass destruction,
or to be attacked by such weaponry despite launching a
war designed to destroy the regime of Saddam Hussein. It
seems reasonable to conclude that either such weaponry
does not exist, or if it does exist, then deterrence was
fully able to assure against a future use. That is, if
such weapons were not used by Iraq to defend the survival
of the regime, then it is highly unlikely that they would
ever have been used in circumstances where an
annihilating retaliation could be anticipated. If Iraq
refrained when it had nothing to lose, why would it use
such weaponry when the assured response would be the
assured destruction of country and regime?
How should such a pattern of circumvention of Charter
rules combined with the reluctance of the UNSC to seek
censure for such violations be construed from the
perspective of the future of international law? There are
several overlapping modes of interpretation, each of
which illuminates the issue to some extent, but none
seems to provide a satisfactory account from the
perspective of international law:
-The United States as the dominant state in a unipolar
world order enjoys an exemption from legal accountability
with respect to uses of force irreconcilable with the UN
Charter System; other states, in contrast, would be
generally held to account unless directly protected under
the US exemption;
-The pattern of behavior confirms a skeptical trend
that suggests the Charter System no longer accords, or
never did accord, with the realities of world politics,
and is not authoritative in relation to the behavior of
states; (11)
-The American pattern of behavior is in some tension
with the Charter System, but it is a creative tension
that suggests respect for the underlying values of the
world community, viewing legality as a matter of degree,
not either/or, and as requiring continuing adjustment to
changing circumstances; as such, the claims of preemption
in relation to mega-terrorism provide a reasonable
doctrinal explanation for an expanded right of
self-defense;
-Acknowledging the behavioral pressures of the world,
the possibility exists that contested uses of force under
the Charter are "illegal, yet legitimate" either by
reference to the rationale for initiating action without
UNSC approval or on the basis of the beneficial impact of
the intervention. (12) From this perspective, the failure
to find weapons of mass destruction does not definitively
undermine the claim that the intervention is
"legitimate." It still could be judged as legitimate due
to a series of effects: the emancipation of the Iraqi
people from an oppressive regime, reinforced by the
overwhelming evidence that the Baghdad rulers were guilty
of systematic, widespread, and massive Crimes Against
Humanity, and an occupation that prepares the Iraqi
people for political democracy and economic success.
(13)
At this stage, it is impossible to predict how the
Iraq War will impact upon the Charter system with respect
to the international regulation of force. It will depend
on how principal states treat the issue, especially the
United States. International law, in this crucial sense,
is neither more nor less than what the powerful actors in
the system, and to a lesser extent the global community
of international jurists, say it is. International law in
the area of the use of force cannot by itself induce
consistent compliance because of sovereignty-oriented
political attitudes combined with the gross disparities
in power that prevent the logic of reciprocity and the
benefits of mutuality operating with respect to the
security agenda of states. The "realist" school has
dominated the foreign policy process of major countries
throughout the existence of the modern state system,
being only marginally challenged by a Wilsonian approach
that is more reliant on legalism and moralism. (13a) To
the extent that restraint with respect to the use of
force is advocated by realists, it is based on
cost-benefit assessments, including the diplomatic virtue
of prudence and the avoidance of over-extension that has
been blamed throughout history for the decline of major
states. (14)
There are grounds for supposing that the approach of
the Bush administration may not fit within the realist
paradigm, but rather represent a militant version of
Wilsonian idealism. (14a) President Bush has consistently
described the war against terrorism in terms of good and
evil, which works against even constraints based on
calculations of self-interest and prudence. (15) To the
extent that such an orientation shapes the near future of
American conduct the UN Charter system will be
disregarded except possibly in those circumstances where
the Security Council would support an American claim to
use force. (16)
The Iraq War and the Future
of the Charter System
Against the jurisprudential background depicted in the
previous section, an interpretation of the Iraq precedent
is necessarily tentative. It depends, in the first
analysis, on whether the American battlefield victory in
the Iraq War can be converted into a political victory,
which will be measured in Iraq by such factors as
stability, democratization, recovery of Iraqi
sovereignty, and economic development. If the American
occupation is viewed as successful, then the intervention
is likely to be treated as "legitimate," despite being
generally regarded as "illegal." Such a perception will
be viewed by some as adding a needed measure of
flexibility in the application of the Charter system in a
world where the possible interplay of mega-terrorist
tactics and weaponry of mass destruction validates
recourse to anticipatory self-defense and it will be
dismissed by others as an opportunistic repudiation of
legal restraints by the world's sole superpower.
There are two main conceptual explanations of this
likely divergence of opinion. The first relates to issues
of factual plausibility. The doctrine of
preemption, as such, is less troublesome than its
unilateral application in circumstances where the burden
of persuasion as to the imminence and severity of the
threat is not sustained. The diplomatic repudiation of
the United States in the Security Council resulted mainly
from the factual unpersuasiveness of the US arguments
about the threats associated with Iraqi retention of
weaponry of mass destruction and the claims of linkage
between the Baghdad regime and the al Qaeda network, and
the alleged failures of deterrence and containment. There
was no doubts about the brutality of Saddam Hussein's
rule, but there was little support for recourse to war on
such grounds. This skepticism has been heightened by the
failure so far to uncover weaponry of mass destruction in
the aftermath of the war, despite total access to
suspicious sites and the cooperation of Iraqi scientists
and weapons personnel.
The second ground of divergence relates to arguments
of retroactive justification. Here the focus is on
whether a war opposed because its side-effects seemed
potentially dangerous and its advance rationale was not
convincing enough to justify stretching the Charter
System of restraint could be justified after the fact.
The justifications combine the quick military victory
with relatively low casualty figures, as reinforced by
the documentation of Saddam Hussein's criminality as an
Iraqi leader. Such an argument would seem more convincing
if the American-led coalition forces had been more
clearly welcomed as "liberators" rather than viewed as
"occupiers," and if the post-combat American presence in
Iraq was less marred by violent incidents of resistance
and further American casualties. It remains too early to
pass judgment. If the occupation is relatively short, and
is generally perceived to benefit the Iraqi people and
not the American occupiers, arguments based on
retroactive justification are likely to gain support, and
the Iraqi precedent would not be viewed so much as
destructive of the Charter System, as an extension of it
based on the emerging enlargement of the role of the
international community to protect societies vulnerable
to abusive governments. (17)
Of course, the issue of process is important, as well
as the substantive outcome. The Iraq War represented a
circumvention of the collective procedures of the Charter
System with respect to uses of force in contexts not
covered by the Article 51 conception of self-defense. To
some extent, a favorable view of the effects of such a
use of force weaken objections to unilateralism. Adopting
a constructivist view of international law, much depends
on the future conduct and attitudes of the United States
Government. Constructivism is a view of political and
legal reality that places decisive emphasis on dominant
mental perceptions as to a given set of conditions,
whether or not such perceptions are accurate as assessed
from other standpoints. (17a) Will the U.S. Government in
the future exhibit generally respect for the role of the
Security Council or will it feel vindicated by its
decision to act unilaterally in conjunction with
cooperative allies, and continue to rely on such a model?
If the latter interpretation shapes future American
foreign policy, then the Charter System is marginalized,
at least with respect to the United States.
Can the Charter System work without adherence to its
procedures and restraining rules by the dominant state in
the world? The constructivist answer is most clarifying.
To the extent that other states continue to take the
Charter System as authoritative it will certainly heavily
influence international responses to challenged uses of
force by states other than the United States, and will
affect global attitudes toward American leadership. There
will be complaints about the degree to which geopolitical
realities trump international law restraints and about
double standards, but these complaints have been made
since the United Nations came into being, and arguably
were embedded in the Charter by granting a veto to the
permanent members.
The approach taken by the Security Council in its
Resolution 1483 is indicative of a tension between
acquiescence and opposition to the United States/United
Kingdom recourse to war against Iraq. (17b) The
resolution divides responsibility and authority between
the occupying powers and the United Nations, granting the
US/UK predominant control over the most vital concerns of
security, economic and political reconstruction, and
governance. At the same time, the resolution stops far
short of retroactively endorsing recourse to force by the
US/UK under the factual circumstances that existed. It
dodges the issue of legality/legitimacy by avoiding any
formal pronouncement, while accepting as a legitimate
given the realities of the outcome of the war. As a
result, a high degree of ambiguity surrounds the Iraq War
as precedent. Undoubtedly, this ambiguity will be
reduced, and possibly eliminated, by consistent
subsequent UNSC practice in future peace and security
contexts.
The Charter System,
Mega-terrorism, and Humanitarian
Intervention
In the 1990s there was a definite trend toward
accepting a more interventionary role for the United
Nations with respect to the prevention of ethnic
cleansing and genocide. The Security Council, as
supported by the last three Secretaries General,
reflecting a greater prominence for the international
protection of human rights and less anxiety about risks
of escalation that were operative during the cold war,
narrowed the degree of deference owed to the territorial
supremacy of sovereign governments. As such, the domestic
jurisdiction exclusion of UN intervention expressed in
Article 2(7) was definitely under challenge from the
widespread grassroots and governmental advocacy of
humanitarian intervention in the years following the cold
war. Although the pattern of claims and practice remained
contested, being resisted especially by China and other
Asian countries, there was considerable support for
humanitarian intervention. The UN was more insistently
attacked for doing too little, as in Bosnia and Rwanda,
than in doing too much. (18)
A variant on this debate is connected with the
instances of uses of force under American leadership in
the post-September 11 world. In both Afghanistan and Iraq
recourse to force rested on defensive claims against the
new threats of mega-terrorism, but the effect in both
instances was to liberate captive populations from
extremely oppressive regimes, establishing patterns of
governance and potential self-determination that seemed
virtually impossible for the oppressed citizenry to
challenge by normal modes of resistance. Even though the
humanitarian motivations of the United States are
suspect in both instances, due to a past record of
collaboration with these regimes while their abusive
conduct was at its worst, the effect of the interventions
was emancipatory, and the declared intention of the
occupation is to support human rights and
democratization. Undoubtedly, such forcible liberations
would not have taken place without the pressures mounted
and the climate created by the September 11 attacks.
Nevertheless, to the extent that mega-terrorism is
associated with criminal forms of governmental authority,
would it not be reasonable to construe uses of force that
accomplished "regime change" as part of an enlarged
doctrine of humanitarian intervention?
I think not for some obvious reasons. Recourse to war
is too serious a matter to allow decisions about it to
proceed on the basis of a rationales that are not fully
articulated and debated in advance. For this reason also,
prudential considerations alone would rule out
humanitarian intervention in all but the most extreme
cases, and even in most of these. Who would be so crazy
as to advocate humanitarian intervention on behalf of the
Chechens, Tibetans, Kashmiris? Of course, there are many
options open to the international community and its
member states not involving the use of force that could
range from expressions of disapproval to the imposition
of comprehensive sanctions. The case for humanitarian
intervention relying on force must be treated as a
principled, and even then, a rare exception to the
generalized prohibition of the Charter with respect to
the use of force embodied in Article 2(4). (19) If the
Security Council does not mandate the intervention, and a
coalition of the willing proceeds, the undertaking could
still be substantially vindicated, as in Kosovo, if some
sort of collective process was involved and the facts
confirmed the imminence of a humanitarian emergency. The
Kosovo Commission tackled this issue of principled
humanitarian intervention, as have scholars, seeking to
provide guidance that preserves the balance between the
prohibition on uses of force and the moral/political
imperatives to mitigate impending or ongoing humanitarian
catastrophes. (19a)
But a pro-intervention argument should not be treated
as acceptable in circumstances where the use of force is
associated with allege security threats posed by the
menace of mega-terrorism, but the justification tendered
after the fact emphasizes humanitarian intervention. In
Afghanistan the security argument was sufficiently
convincing as to make the humanitarian benefits of the
war a political and moral bonus, but without bearing on
the legal case for recourse to force, which was already
convincing on the defensive grounds claimed. In Iraq, by
contrast, the security and related anti-al Qaeda
arguments were unconvincing, and the claimed humanitarian
benefits resulting from the war were emphasized by
American officials as a way to circumvent the illegality
of the American-led recourse to force. Such post hoc
efforts at legalization should not be accorded much
respect, especially in the context of a major war where
prior efforts to obtain a mandate for the use of force
were not endorsed by the Security Council even in the
face of major diplomatic pressures mounted by Washington
in the several months prior to the Iraq War. (20)
A Constructivist Future for
the UN Charter System
The position favored here is that the United States
would be best served by adhering to the UN Charter
System. (21) This system is flexible enough to
accommodate new and genuine security imperatives as well
as changing values, including a shifting balance between
sovereign rights and world community responsibilities.
(22) In both settings of humanitarian intervention and
responses against mega-terrorism the Charter System can
be legally vindicated in appropriate factual
circumstances.
From this perspective recourse to war against Iraq
should not have been undertaken without a prior
mandate from the Security Council, and rather than "a
failure" of the United Nations, it represented a
responsible exercise of constitutional restarint. (23)
The facts did not support the case for preemption, as
there was neither imminence nor necessity.
As a result, the Iraq War seemed, at best, to qualify as
an instance of preventive war, but there are
strong legal, moral, and political reasons to deny both
legality and legitimacy to such a use of force. It is not
acceptable exception to the Charter System, and no effort
was made by the US Government to claim a right of
preventive war, although the highly abstract and vague
phrasing of the preemptive war doctrine in the National
Security Strategy of the USA would be more accurately
formulated as "a preventive war doctrine." But even
within this highly dubious doctrinal setting, to be at
all convincing the evidence would at least have to
demonstrate a credible future Iraqi threat that could not
be reliably deterred, and this was never done.
My legal constructivist position is that the United
States (and the world) would benefit from a self-imposed
discipline of adherence to the UN Charter System
governing the use of force. Such a voluntary discipline
would overcome the absence of geopolitical limits
associated with countervailing power in a unipolar world.
(24) It would also work against tendencies the United
States and others to rely too much on military
superiority, which encourages the formation of defensive
alliances, and possibly arms races. International law is
flexible enough to allow the United States, and other
countries, to meet novel security needs. Beyond this,
neither American values nor strategic goals should be
construed to validate uses of force that cannot win
support in the UN Security Council. If one considers the
course of American foreign policy over the course of the
last half century, adherence to the Charter System with
respect to the use of force would have avoided the worst
policy failures, including that of Vietnam. Deviations
from the Charter system of prohibitions on the use of
force can be credited with no clear successes.
It is not the Charter System that is in disarray,
providing sensible grounds for declaring the project of
regulating recourse to war by states a failed experiment
that should now be abandoned. It is rather leading
states, and above all the United States, that need to be
persuaded that their interests are served and their
values realized by a more diligent pursuit of a
law-oriented foreign policy. The Charter System is not a
legal prison that presents states with the dilemma of
adherence (and defeat) and violation or disregard (and
victory). Rather adherence is the best policy, if
understood against a jurisprudential background that is
neither slavishly legalistic nor cynically nihilistic.
The law can be stretched as new necessities arise, but
the stretching must to the extent possible be in accord
with procedures and norms contained in the Charter
System, with a factually and doctrinally persuasive
explanation of why a particular instance of stretching is
justified.
Such positive constructivist attitudes will renew
confidence in the Charter System. It is also true that
constructivism can work negatively, and so if the sorts
of disregard of the legal framework, public opposition,
and governmental resistance present in the Iraq case is
repeated in the future, then indeed the Charter System
will be in a shambles before much longer.
Endnotes
1. "President's Remarks at the United Nations General
Assembly," Sept. 12, 2003, White House Text.
2. For representative contributions see THE VIETNAM
WAR AND INTERNATIONAL LAW (Richard Falk, ed., 4 vols.,
1968, 1969, 1972, 1976).
3. THE KOSOVO REPORT: CONFLICT, INTERNATIONAL
RESPONSE, LESSONS LEARNED (2002) 185-198; it should be
mentioned that I was a member of the commission.
4. Such a practice could be regarded an 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 outlined in Kosovo Report, supra
note 3, 187.
6. A discussion of this challenge and the U.S.
response is the theme of my book, Richard Falk, THE GREAT
TERROR WAR (2003).
7. Initially fully depicted in "Remarks by the
President at 2002 Graduation Exercise of the United
States Military Academy," June 1, 2002; given a more
enduring and authoritative status by their emphasis in
the official White House document, THE NATIONAL SECURITY
STRATEGY OF THE UNITED STATES OF AMERICA, Sept. 2002, esp
Chapter V, 13-16.
8. See supra, Note 1.
9. The most important Security Council resolutions
were 678 (1990), 687 (1991), and, of course, 1441
(2002).
10. "President Bush's Prepared Remarks Declaring End
to Major Combat in Iraq," text printed in NY TIMES, May
2, 2003, A14.
11. This position is most clearly articulated by
Michael J. Glennon, Why the Security Council
Failed, FOREIGN AFFAIRS 82 (No.3): 16-35 (2003); the
overall argument is more fully developed in Glennon's
book LIMITS OF LAW, PREROGATIVES OF POWER:
INTERVENTIONISM AFTER KOSOVO (2001); also relevant,
Anthony C. Arend and Robert J. Beck, INTERNATIONAL LAW
AND THE USE OF FORCE: BEYOND THE UN CHARTER PARADIGM
(1993); A. Mark Weisbrud, USE OF FORCE: THE PRACTICE OF
STATES SINCE WORLD WAR II (1997).
12. See Anne-Marie Slaughter, "Good Reasons for Going
Aroung the U.N.," NY TIMES, March 15, 2003.
13. See Charles Krauthammer, "U.S. cleaning up
Hussein's mess in Iraq," LA TIMES, May 16, 2003; Thomas
I. Friedman, "Bored with Baghdad&emdash;Already," NY
TIMES, May 18, 2003, §4, 13.
13a 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 George
F. Kennan, AMERICAN DIPLOMACY 1900-1950 (1951); also
Henry Kissinger, DIPLOMACY (1994), esp. 218-245, 762-835.
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 (2001), 132-173.
14 Paul Kennedy, THE RISE AND FALL OF GREAT POWER:
ECONOMIC CHANGE AND MILITARY CONFLICT 1500-2000
(1987).
14a For an argument along these lines see Max Boot,
"George Woodrow Bush: the president is becoming a
Wilsonian interventionist," WALL STREET JOURNAL, July 1,
2002.
15 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.
16 See Richard Perle, "Thank God for the death of the
UN: Its abject failure gave us only anarchy, The World
Needs Order," THE GUARDIAN, March 20, 2003.
17 For influential comprehensive presentation along
these lines see THE RESPONSIBILITY TO PROTECT: REPORT OF
THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE
SOVEREIGNTY (2001).
17a 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).
18 For useful overviews of this trend see Sean Murphy,
HUMANITARIAN INTERVENTION: THE UNITED NATIONS IN AN
EVOLVING WORLD (1996); Nicholas J. Wheeler, SAVING
STRANGERS: HUMANITARIAN INTERVENTION IN INTERNATIONAL
SOCIETY (2000).
19 For a well-crafted narrow doctrine of humanitarian
intervention see Jack Donnelly, UNIVERSAL HUMAN RIGHTS IN
THEORY AND PRACTICE (2nd ed., 2003) 242-260. For a
generally skeptical set of reflections about claims of
humanitarian intervention see HUMANITARIAN INTERVENTION:
MORAL AND PHILOSOPHICAL ISSUES (Aleksandar Jokic, ed.,
2003); for a somewhat more optimistic set of accounts see
HUMANITARIAN INTERVENTION: ETHICAL, LEGAL, AND POLITICAL
DILEMMAS (J. L. Holzgrefe and Robert O. Keohane, eds.,
2003).
19a For important efforts see Kosovo Report, note 3;
The Responsibility to Protect, Report of the
International Commission on Intervention and State
Sovereignty (2001) 53-57; Lori Fisler Damrosch, ed.,
"Concluding Remarks," in Enforcing Restraint:
Collective Intervention in Internal Conflicts
(Damrosch, ed.,1993), 348-367; and esp., Damrosch, "The
inevitability of selective response? Principles to guide
urgent international action," Kosovo and the Challenge
of Humanitarian Intervention (Albrecht Schnabel and
Ramesh Thakur, eds., 2001) 405-419.
20 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 the
Vietnamese violation of Cambodian sovereignty, urging
immediate withdrawal despite the risk of regenerating a
genocidal regime.
21 A more generalized view of the benefits arising
from a law-oreinted approach are well explained in RULE
OF POWER OR RULE OF LAW? (Nicole Deller, Arjun Makhijani,
and John Burroughs, eds., 2003).
22 See Oscar Schachter, "In Defense of
International Rules on the Use of Force," 53 U. Chi.
L. Rev 113 (1986).
23 The reference to failure is to challenge the
central conclusion of Glennon's analysis, supra,
note 10.
24 My assertion is in direct opposition to the
inferences drawn by Robert Kagen in his influential book.
See Kagen, OF PARADISE AND POWER: AMERICA AND EUROPE IN
THE NEW WORLD ORDER (2003).
©
TFF & the author 2003
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