From: Brett Paatsch (paatschb@ocean.com.au)
Date: Wed Feb 26 2003 - 17:22:36 MST
Wei Dai writes:
> So it seems that you're only allowed to use force for
> self-defence, or if approved by the Security Council. My
> point is that since the U.S. has violated this several times
> in the past without serious repercussions, what makes this
> time different?
I don't properly understand the relationship between the Security
Council the General Assembly and the International Court of Justice.
I am not sure that the ICoJ sits in the same relation to the Security
Council and the General Assembly as say the US Supreme Court
sits in relation to Congress (the law making body) and the President
(and military security apparatus).
I know the ICoJ (unlike the Supreme Court) does not have full
jurisdiction over all matters as some Member Nations have not
agreed to accept its jurisdiction in all matters.
I don't think a Security Council resolution is appealable to the
ICoJ for instance.
What does seem to be a clear differentiator though (apart from
the fact that it is a current issue and not just a post-Cold-War-with
-only-one-military-superpower-issue) is that the Security Council
was specifically approached and asked to become "seized of" the
matters contained in 1441.
Having been approached and having become "seized" I don't think
there is any authority higher than the Security Council under the
Charter. Not any Member nation, not the ICoJ and not even the
General Assembly. On this matter I think the Security Council's
authority (deriving from the Charter) is supreme. (That I only
think it and don't know it is a matter of my ignorance and shortage
of time to find out - someone else may know the facts or be able
to find them - it certainly seems like it would be a matter of fact
whether or not the Security Council's authority on 1441 is
superior to all other UN organs like the General Assembly and
the ICoJ. I'm pretty sure that it is.)
I don't know enough about the UN to sort into hierarchical
classes any and all prior breaches of UN resolutions by member
nations.
What concerns me (at a minimum) is that the US, a member
nation, is openly countenancing a breach of the Security Councils
authority (and thus the UN's authority) while the Security Council
is actually engaged on the same matter. I think this (at least) is
unprecedented. I think this (at least) is giving grounds for very
strong concern.
Most agreements between nations are going to have a lot of
detail. Incidental breaches of some of those details will occur
from time to time and sometimes material or serious breaches
will occur. But the Iraq situation covered by 1441 is not a
mere detail. If the US, a permanent member of the Security
Council usurps the authority of the Security Council (for whatever
reason - and its worth remembering the UN was substantially a
US initiative in the first place) as blatantly as it seems to be
currently considering doing then the Security Council will be
very publicly invalidated and so too will the UN. If the UN's
authority to maintain international peace and security is cast
aside publicly then confidence in international law and that
countries will be both willing and able to honour their
agreements with each other gets cast aside too.
Next to the paramount issue of security the other issues of
"emerging" international law and the matters that are considered
by the ICoJ are almost window dressing. Further civilized
behaviour and agreements are predicated upon meaningful security.
If the Security Council's authority is cast aside a state of
international anarchy (perhaps undeclared) would exist. Anarchy
even between open societies of the west. A veneer of civility and
order might prevail on the surface for a time, but countries and
businesses would be wondering in the absence of a UN whether
the agreements that they make could be relied upon. This
increased uncertainty would run counter to the interests of the
United States and its citizens too. In the short term the US
*might* find that it experienced a net security benefit by acting
unilaterally and using its military might without regard for the
concerns of other open societies and their citizens but in the
medium and long term the US would be effectively isolating itself
and then the US, for its own sake, would have to start building a
new UN version 3. And then it would have to start thinking about
how such a UN could hold the confidence of non-US citizens and
governments. It would have to consider how the new UN v3.0
would handle security matters. It would not be tenable to expect
that a majority of the worlds citizens in open countries would
accept that the US President whom they get no chance to vote
for (and whom therefore would have little interest in looking out
for them) would alone get to set security policy (which trickle
feeds into all other forms of policy) for the whole world on an
ongoing basis. So a new security council would need to be built.
Personally I think the US would prefer to keep the security
council we (humanity) have and work to change it incrementally.
I don't think it (the US) could expect to put a better (sufficiently
broad based) Security Council in place more quickly than it
could reform this one.
I still think the best solution is for Bush to engage with Chirac
and to give Chirac the chance to step up and show his mettle.
Chirac is the leader of France. France is a permanent member
of the Security Council and has the responsibility as such to
effectively maintain international peace and security (even in the
face of new threats to it). Old outdated idealistic and rhetorical
notions that war "is always, always" the worst solution are not
operationalisable, and indeed, when they are seriously held (if
they are -as opposed to being held for domestic political
consumption) by a head of a permanent security council member
nation with a veto then they disable the *Security* Council from
being able to maintain *security*.
I don't know too much about France but I bet the French police
are not unable to put their hands on firearms when French
criminals are able to posses them. The same principle applies
internationally. Either there is a credible duly constituted authority
that will act to preserve international security or there will not
be any international security. International security is currently
the responsibility of the Security Council. It is currently also
Chirac's responsibility. It is therefore his responsibility to step
up and provide a standard or benchmark for when the Security
Council should act as the duly constituted body that it is to
do its job. Bush should invite him to do just this. Bush should
publicly ask Chirac (who may draw on all the formidable intellectual
resources of France and elsewhere if he so chooses) to come up
with a practical benchmark for when the Security Council should go
to war in general. To produce such a benchmark should not take
Chirac long. It ought to be doable in days. This war is the last option
business is childish at the UN level as it amounts to an infinitely high
standard. At the level of the Security Council a far more balanced
weighting should be made on each particular case sure but still against
some standard or benchmark not against some "only as a last resort"
and doesn't even articulate the earlier "resorts".
Perhaps the standard might be 'on the balance of reasonable risk'.
The arguments could then take place to allocate the risk to both
sides of the equation. These would include the risk of forbearing
from Security Council sanctioned military force for too long. Time
delaying would be one of the risk factors weighted. I am certain
the US is feeling a certain amount of time pressure over Iraq
because of the situation with North Korea. Time risks of forbearing
can be factored in the case of Iraq just as can risks of going
to soon. But no meaningful demonstration of a just use of force
in a particular instance can be found unless there is at least a
benchmark or standard for the Security Council going to war in
general terms existing. 1441 talks of serious consequences not
going to war. Serious consequences could mean military action
and that imo should be a bona fide practical option not one that
can never be used because of an infinite and self-defeatingly high
standard.
Once a standard is in place a whole lot of new positive things
become possible. And the actual likelihood of using the force that
the Security Council would be legitimately able to array would
be radically reduced because despots would know better than
to engage the Security Council in glorified games of chicken.
It is even possible despots could themselves be extracted without
bloodshed into a UN sin-bin and be able to live out their own
lives in security and perhaps even with "fame" but without power.
There is an opportunity here to take civilization up a notch. I hope
Bush and Chirac and others "on" the Security Council are capable
enough to seize it.
Brett Paatsch
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