Mend It or End It
From the December 20, 2004 issue: Taking U.N. reform seriously.
Dec 20, 2004, Vol. 10, No. 14 • By MARIO LOYOLA
"IT IS NOT ENOUGH to denounce unilateralism," Kofi Annan told the United Nations General Assembly last year, "unless we also face up squarely to the concerns that make some states feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action."
Translation: It's time for the U.N. to move beyond the gnashing of teeth and rending of garments over the Bush administration's preemptive Iraq war and do something constructive with its anti-American anger. The U.N. being what it is, Annan's next step was to appoint a panel and commission a report, which was released in early December. The most flamboyant recommendation was to enlarge the Security Council from 15 members to 24. But this is ultimately a cosmetic change, as the five veto-wielding members (the United States, Russia, Britain, France, China) would remain the same. Beyond that, the panel offered an uninspiring mix of self-criticism and anti-American sniping, even as it failed to confront the U.N.'s deepest flaw: the chronic inability of the Security Council to solve any of the problems for which it claims responsibility.
You might say that this flaw is built into the organization. When the Great Powers convened an international conference in San Francisco to adopt the U.N. Charter in 1945, they began their work with an elegant draft treaty, the Dumbarton Oaks Proposals, named for the gorgeous Georgetown estate where their foreign ministers had spent much of the previous summer hammering out the outlines of the new world order. The Proposals were a monument to the State Department's institutional talent for careful technical study and drafting precision. Alas, they emerged from the San Francisco conference mutilated, enshrining a presumption against the use of force that only the Security Council can override.
In the original draft, the use of force was presumed legitimate so long as it comported with the purposes of the new organization--which included the maintenance of international law, and the prevention and removal of threats to the peace. This would have left the legality of many kinds of wars--preemptive action, humanitarian intervention, arms control enforcement--where it belongs, in the evolving body of customary international law. But the final text reversed this presumption: It made the use of force illegal in almost all cases--no matter how necessary or justified--unless the Security Council first approves.
Instead of facilitating collective action, as the drafters had imagined, the Security Council under this new dispensation would mainly function to block the use of force by the very states for whom legitimacy matters most--the great democracies. The U.N. was conceived as a body that would make it impossible for an aggressive regime like Nazi Germany to violate treaties with impunity and arm for a war of conquest. But the San Francisco conference gave birth to a system that would have made Hitler's rise even easier.
The problem was recognized by at least some of the delegates; hence the existence of Article 51 of the U.N. Charter, which preserves an "inherent right of . . . self-defense if an armed attack occurs." But Article 51 would be void for vagueness if it were within the power of any court to declare it so. What, after all, is an "inherent right" if you are specifying by treaty the only situation in which it can be exercised?
Kofi Annan's panel cheerfully concludes that "Article 51 needs neither extension nor restriction of its long-understood scope." In fact its scope has never been understood. The cacophony of scholarly opinion on the meaning of Article 51 is dizzying. The only thing everyone agrees on is that the provision cannot mean what it plainly says. As the panel recognizes, states have long claimed the right to preempt an imminent attack. But the reason for this is not that the Charter graciously permits them to, but rather that most of the Charter didn't survive contact with reality. Accommodating the preemption of imminent attacks is not a legal interpretation of the Charter. It is desuetude, and few treaties have ever deserved it more.
Franklin D. Roosevelt understood that the anti-Axis alliance, organized as a permanent coalition of United Nations, could be a pillar of global security. What most closely approximates his vision, though, is not the U.N. but NATO. Roosevelt never dreamed that the Security Council would be the exclusive forum for determining the legitimacy of military force. That issue was put to rest in the negotiations leading to the Moscow Declaration of 1943, in which a requirement for unanimous Great Power agreement before any one of them could resort to military action was rejected out of hand. What they agreed was to use force according to common principles, and after joint consultation--which is the basic idea of the Dumbarton Oaks Proposals.