The following is an archived copy of a message sent to a Discussion List run by the Campaign Against Sanctions on Iraq.

Views expressed in this archived message are those of the author, not of the Campaign Against Sanctions on Iraq.

[Main archive index/search] [List information] [Campaign Against Sanctions on Iraq Homepage]


[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

[casi] What Future for the UN Charter System of War Prevention?



Hi all,

For fans of the - FUTURE  - United Nations

Best

Andreas
----------------------

http://www.transnational.org/forum/meet/2003/Falk_UNCharter.html

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





_______________________________________________
Sent via the discussion list of the Campaign Against Sanctions on Iraq.
To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-discuss
To contact the list manager, email casi-discuss-admin@lists.casi.org.uk
All postings are archived on CASI's website: http://www.casi.org.uk


[Campaign Against Sanctions on Iraq Homepage]