update-
Ok, so this is a bit of grave digging but here's something that has come back-
Binding the colossus
Nov 20th 2003 | NEW YORK AND WASHINGTON, DC
From The Economist print edition
Can the United States ever work comfortably with international institutions? First, we consider the United Nations; next, the International Criminal Court
LONG before a bomb blew apart its headquarters in Iraq, the United Nations was deeply concerned about its role in the new terror-filled world. It remains the only body where the world's nations can take collective decisions. But to what extent can it, or should it, control how its members behave when they believe their security is threatened?
America's invasion of Iraq is the obvious test case. The United States claims that it did not invoke a right of pre-emptive self-defence in going to war, but acted both under Resolution 1441 and the “continuing authority” of a UN resolution mandating the use of force in the first Gulf war 12 years earlier. That is not how all the world sees it, not least because America has often made it clear that it will act on its own if it thinks it must.
Kofi Annan, the UN's secretary-general, believes that a perilous precedent has been set. “If...nations discount the legitimacy provided by the UN, and feel they can and must use force unilaterally and pre-emptively, the world will become even more dangerous,” he said in October. Such an approach, he had earlier told the General Assembly, could lead to “a proliferation of the unilateral and lawless use of force, with or without credible justification.” On the other hand, as a senior UN official admits, the only effective pre-emptive action at present is the unilateral kind.
The answer, Mr Annan believes, is to show that collective action can work just as well. But how? Mr Annan, realising that the UN has reached a “fork in the road” between continuing relevance and death, has recently announced the creation of a high-level panel to assess the present dangers and decide how the UN can respond, while keeping America on board.
Pre-emption is not specifically mentioned in the panel's brief, but it will inevitably be the focus of its discussions. Containment and traditional deterrence, relied on for the past half-century, are clearly no longer adequate to deal with the new world of terrorists armed with weapons of mass destruction. Should explicit doctrines of pre-emption or prevention replace them? And, if so, can they be carefully enough defined?
At present, the UN charter, drawn up with the horrors of the second world war still fresh, obliges member states to “refrain from the threat or use of force” and to settle their international disputes by peaceful means. Recourse to force is permitted in only two circumstances: under Article 51, allowing self-defence, or under the broad powers given to the UN Security Council “to decide what measures shall be taken...to maintain or restore international peace and security”, including use of force. This could in theory, and perhaps in practice, be extended to cover pre-emption.
The notion of pre-emption is, of course, not new. In his “On the Law of War and Peace”, published in 1625, Hugo Grotius, considered to be the father of international law, stated that it was lawful “to kill him who is preparing to kill”. A century later, Emmerich de Vattel declared in “The Law of Nations” that “A nation has the right to resist the injury another seeks to inflict upon it, and to use force against the aggressor. It may even anticipate the other's design.” But, he goes on, the pre-emptor must “be careful not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor.”
The classic formulation of the right of pre-emptive attack was given in the mid-19th century by Daniel Webster, then America's secretary of state, over the Caroline incident. In 1837, British troops attacked an American ship, the Caroline, which was being used to ferry supplies to anti-British rebels in Canada. The vessel, at the time, was in American waters; American public opinion was outraged. The British claimed legitimate self-defence, but Webster argued later that anticipatory action was justified as self-defence only where “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means and no moment for deliberation.” In addition, he said, the force used had to be proportionate to the threat. A third justification is now usually added—clear evidence of an intent to attack.
The UN has, in fact, been fiddling with the notion of pre-emption ever since its foundation. Article 51, in particular, has been subjected to much “creative re-interpretation” to allow the extension of the right of self-defence to cover an ever greater array of situations: retaliation against terrorist attacks; armed intervention to protect or rescue citizens living abroad; anticipatory action against an imminent and overwhelming armed attack; and “robust” humanitarian or peacekeeping operations. All this is in apparent breach of the UN's bedrock principle of national sovereignty. But it is understood that necessity demands it.
During the cold war, states sometimes resorted to pre-emptive force under the supposed cover of Article 51. Israel did so in the six-day war against Egypt and other Arab states in 1967. Both George Bush senior and Bill Clinton supported pre-emption in principle against Iraq and North Korea, if they showed signs of using their chemical or nuclear arsenals.
Now President George Bush junior, along with some others, wants to extend Article 51 to cover—as a last resort—strikes against dangerous regimes before they become imminent threats, and even without clear evidence of an intent to attack. “If we wait for threats to materialise,” he says, “we will have waited too long.”
Such a re-interpretation of Article 51 may not be as outlandish as it seems. Once a rogue state or terrorist group has acquired nuclear weapons, it becomes virtually impossible to contain. Furthermore, the threat of pre-emption could be seen, and used, as a form of deterrence. As the Bush administration's National Security Strategy puts it, “Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equalling, the power of the United States.” This new reality is one to which the UN is going to have to adapt.
The fight for seats
Few, however, want to see a world in which the strongest decide when and against whom to use unilateral pre-emptive force—tempting others to follow suit. An agreed set of guidelines is evidently needed. And the difficulty is not only how to set clear rules, but how to bolster the legitimacy of the body that enforces them.
The United States has long been tempted to see itself as the enforcer of the rules. As Strobe Talbott, a deputy secretary of state in the Clinton years, once said, “The sheer pre-eminence of American power could, in itself, be the ordering and taming principle of a disorderly and dangerous world.” This is not simply hubris: Americans have always tended to assume, rightly or wrongly, that what is good for them is also good for the rest of humanity.
They have also felt frustrated, most keenly in the case of Iraq, that the multi-voiced UN is so slow to move in the direction they desire. In his speech in London on November 19th, Mr Bush said both the credibility of the UN, and its relevance, depended on “a willingness to keep its word and to act when action is required.” Richard Perle, a leading neo-conservative and adviser to the Pentagon, has questioned whether a “coalition of liberal democracies” would not be better able to confer legitimacy on military action than the UN.
The principal object of everyone's criticism is the Security Council, the 15-member body responsible for taking the key decisions over war and peace. Composed of five powerful permanent members with veto rights—the United States, China, Russia, France and Britain—and ten elected rotating members without a veto, it is widely seen as anachronistic and woefully unrepresentative of today's geopolitical realities. Why, for example, should Russia, with a GDP smaller than the Netherlands', have a permanent seat, rather than Japan, the world's second-biggest economy? Why not give India a seat, or Brazil?
The arguments have been around for years, but nothing has been done. Now, in Mr Annan's view, the need for reform is urgent. “Unless the Security Council regains the confidence of states and world public opinion,” he said in September, “individual states will increasingly resort exclusively to their own national perceptions of emerging threats and how best to deal with them.”
None of the big five is about to relinquish its privileges. But Mr Annan has called for an enlargement of the council to make it more representative. Under one proposal, five more countries—probably Brazil, India, Germany, Japan, and one African country—would get permanent seats on the council, though with no veto, along with four more rotating members elected on a regional basis every two years.
But an enlarged Security Council is likely to produce even greater discordance, not less. To make agreement easier, some have proposed abolishing the whole veto system. But without the veto, many of the big members—especially the United States—would be even more tempted to work outside the UN.
A UN working group has been studying these and other proposals for Security Council reform for the past ten years, without result. This is why Mr Annan, in setting up his new reform panel, has decided to concentrate on policy issues rather than structural ones. These will include not only “hard” threats, such as terrorism and WMD, which worry the rich world most, but also the “soft” threats of much greater concern to the rest of humanity, such as famine, poverty and disease, as well as civil war and brutal regimes (see article).
Needing each other
As Mr Annan points out, all these struggles are linked. Not least, the UN's usefulness in other areas wins it respect from America, which otherwise it might not have. Despite complaints about bloated bureaucracy, the Bush administration admires the huge amount of work the organisation does through its various humanitarian, social and economic agencies. American officials applaud the UN peacekeeping operations in East Timor, Sierra Leone and Liberia. And they value the UN's role as an influence-multiplier, a burden-sharer and a provider of expertise they themselves do not possess in areas such as peacekeeping and nation-building.
In many ways, therefore, the UN is a means to America's ends. “I believe profoundly that the US and UN need one another,” Mr Annan declared last month. However “flawed” the UN may be, says Richard Holbrooke, America's ambassador to the UN under Mr Clinton, “it is indispensable to American national interests”. Mr Bush, too, who enjoys warm personal relations with Mr Annan, accepts that the UN has its uses. Publicly, the United States is giving its full backing to Mr Annan's reform efforts. Indeed, an American, Steven Stedman, is heading the reform panel's secretariat, which is expected to do most of the leg-work.
This support clearly has its limits, particularly where pre-emption is concerned. American officials admit privately that the United States does not want any “iron-clad rules” which might cramp its style. But since the rules have already been stretched to accommodate a certain amount of pre-emption, agreement on a new set of principles may not, in practice, be impossible. Besides, the UN can still act as a restraining influence and a valuable sounding board for world opinion; and America, no matter how powerful, would prefer to have the world on its side.
