The current (May-June 2003) edition of the authoritative American magazine Foreign Affairs carries a long article by Michael J. Glennon, Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, revealingly entitled “Why the Security Council Failed”. Glennon’s central argument, if I understand him correctly, is that the Charter rules governing the use of force in international affairs have been flouted, ignored and circumvented so often since World War II that they have effectively ceased to form part of international law, and that accordingly it is no longer contrary to international law for states to act in breach of them. He attributes this “failure” of the Security Council system not to any shortcomings on the part of UN member states or of the UN itself but to changes in the international power balance and the emergence of a single unchallengeable hyper-power (the US) which can’t be expected voluntarily to accept the constraints imposed by the Charter in deciding when to act, including when to use force, in what it sees as its own best interests. He quotes with approval Francis Fukuyama as saying that “Americans tend not to see any source of democratic legitimacy higher than the nation state,” although if that’s correct it’s hard to explain why the Americans played the role they did in drawing up the Charter and accepting its obligations. Glennon continues:
“Europeans see democratic legitimacy as flowing from the will of the international community. Thus they comfortably submit to impingements on their sovereignty that Americans would find anathema. Security Council decisions limiting the use of force are but one example [note by BB: but it’s actually the Charter itself, not just individual Security Council decisions made under it, that seek to limit the use of force]. … Although the effort to subject the use of force to the rule of law was the monumental internationalist experiment of the 20th century, the fact is that that experiment has failed. Refusing to recognise that failure will not enhance prospects for another such experiment in the future.”
I hope I’m not alone in finding this example of brutal realpolitik, applied to the interpretation of international law by an expert in the field, profoundly depressing, indeed alarming. The idea that a law ceases to be a law if it is sufficiently often disobeyed seems oddly defeatist, not to say perilous, even if applied only to international as distinct from domestic law. It’s no doubt true that the US is now so uniquely powerful that it can do what it likes, however illegally, with complete impunity. But that’s a far cry from saying that international law actually licenses the United States (and presumably any other state that feels sufficiently powerful to get away with it) to use force against another state whenever it feels so inclined and in complete disregard of its existing treaty obligations, simply and unilaterally pronouncing them obsolete. And to tell the rest of the world that we have got to “recognise” this new American hegemony and “the failure” of the whole UN experiment is surely outrageous. On the contrary, it’s becoming increasingly clear that the main issue now confronting the rest of the world, and especially the Europeans as the sole potential counter-weight to American power, is finding ways of resisting Washington’s assertion that it is now above the law by persuading its leaders (if not the current administration, then perhaps the next) that even American interests can’t possibly be served by tearing up the Charter and reverting to an international system of jungle law in which the strong can use force against the weak whenever it suits their interests to do so. Effective resistance to this pernicious and menacing American doctrine will require an unprecedented degree of unity and resolution within the EU. Tony Blair has made a poor start in this regard by recklessly harnessing himself to the runaway American chariot in the naïve belief that he can thereby slow it down and change its direction. Experience of US mismanagement in occupied Iraq demonstrates the extent of that illusion. (And I write as a convinced admirer of America and the Americans: it’s the present administration and its doctrinal journeymen who I believe need to be resisted at every turn, root and branch. We need the United States to re-enter the international community in its own interests as much as in ours.)
Q Ari, two questions on Iraq. In response to an earlier question, you said the President still hopes to avoid war, and that Saddam Hussein could avoid it by completely and totally disarming, and by going into exile. I’m wondering, are you — is that now the standard? Previously, you’ve obviously said disarmament. But is it now the combination of disarmament and exile?
MR. FLEISCHER: I think the President made it perfectly plain yesterday in the Oval Office and he has said this repeatedly, it’s disarmament and regime change.
Q So even though the United Nations would sign on to the first part of that, and not to the second, when the President thinks about launching military action, he’s going to think about the combination?
MR. FLEISCHER: The President has made that plain.
Britain’s assertion of the legitimacy of the Iraq intervention rested almost entirely on the alleged need to enforce UN demands that Iraq account for, and if necessary get rid of, its WMD. The Americans paid lip service to this objective as long as they were still trying for a “second resolution” of the Security Council authorising the war, but once that hope began to fade they reverted to their original objective of bringing about “régime change” in Iraq, as for example admitted on the record by the President’s press spokesman, Ari Fleischer, on 28 February**. The full implications of Washington’s claim to have the right, simply because it has the power, to use military force against an independent sovereign state in order to remove its government, however repressive and unsavoury, and install a new one, have still not been fully hoisted in. This spectacularly revolutionary new doctrine, if it becomes accepted internationally (even with reluctance) as forming part of customary international law, effectively repeals the central provisions of the UN Charter which set out the once internationally agreed rules governing the use of force in international affairs—rules in whose drafting the US played a leading part at the end of the second world war, and which the US formally accepted as binding when it signed the Charter and ratified its UN membership. Being part of a formal treaty obligation, these rules automatically form part of United States law, as binding on all US governments and courts as any domestic law, as Article VI of the Constitution itself makes clear – “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” [My emphasis.] It seems curious that no-one in such a litigious population as that of the US has sought to persuade the courts to enforce the provisions of the Charter against President Bush’s administration and to restrain it from acting in plain breach of “the supreme law of the land”. But perhaps the experience of trying to persuade the Supreme Court to impose fairness and legality in the 2000 presidential election has discouraged any fresh effort to get it to restrain George W. Bush now.
Much the most significant event during my absence has obviously been the attack on and occupation of Iraq by American, British, Australian and Polish forces. With all due respect to the opinion of the (British) Attorney-General on the legality of the use of force against Iraq without an explicit new resolution by the Security Council authorising it, the overwhelming consensus among the international lawyers and other commentators seems to be that the attack was plainly illegal and in breach of the UN Charter, especially following the conspicuous failure of the US, UK and Spain to secure a majority in the Security Council in favour of the use of force—when the UN weapons inspectors had asked for a limited amount of additional time to see if they could bring about a peaceful resolution of the problem of Iraq’s alleged weapons of mass destruction (WMD). Although Washington and London made much play with France’s supposed threat to “veto” any resolution authorising force, the question of a French, Russian or Chinese veto never actually arose, not only because the draft resolution was prudently withdrawn without a vote, but also because there was never a 9-vote minimum majority in support of the resolution; so a negative vote by a Permanent Member would not have been a veto—the resolution would have been defeated anyway. This must rank as one of the most humiliating defeats for British (and to a much lesser extent American) diplomacy since the Suez imbroglio in 1956. Having failed to persuade a majority of the Council to agree to the use of force, our leaders then proceeded to argue that in going ahead with their attack on Iraq anyway, they were acting legally because they were merely enforcing the will of the Security Council as expressed in earlier resolutions. One can only wonder at such brazen chutzpah. And, as pointed out in my Ephems entry for November 2002, this is the second time that our Labour Prime Minister has taken us to war in plain breach of the Charter (the NATO attack on Serbia over Kosovo was similarly illegal as well as having been unnecessary, counter-productive and unsuccessful—for evidence demonstrating this, just click here). So it has been especially frustrating to hear ministers having the brass neck to quote the Kosovo episode as a legal and moral precedent justifying the attack on Iraq.
Once again I have to say I’m sorry that this is the first new entry in Ephems for several weeks, indeed months. It has taken even my hi-tech son and his arcane skills this amount of time to re-establish the ability to upload fresh material to the web site. However, I’m back at last, hoping I haven’t permanently lost too many previously loyal and regular visitors during the closure.
Just time to scribble a few notes before J. and I go off tomorrow for three weeks on our third cruise — this time to the Mediterranean, the Dardanelles and the Black Sea (including Yalta as in Conference and Odessa as in Steps), stopping off at Istanbul among other places on the way. I’ll try to write a cruise diary on the laptop as we go along and put it on the web site when we get back. The diary of our last, all-too-eventful cruise last year is a reminder of what can easily go wrong during a life on the ocean wave. Better luck this time, we hope.
