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January-February 2005
American Society of International Law Newsletter
The dispute at the Security Council over Iraq was a body blow to the United Nations. But was it fatal? Our colleague, Michael Glennon, recently declared in a brilliant lead article in Foreign Affairs that the rupture of the UN Security Council in March 2003 made it “clear that the grand attempt to subject the use of force to the rule of law had failed.”
Yet, Glennon may have spoken too soon. In truth, efforts to redefine the rules of the road for the use of force have been building since the mid 1990s and thanks, in part, to a compelling report mandated by Secretary General Kofi Annan, the Iraq War may well come to be seen not as the end of the effort to subject the use of force to the rule of law, but as a turning point toward a acceptance of new rules.
Against all expectation, the Secretary General’s “High-Level Panel on Threats, Challenge and Change,” released a report in December that makes major advances in broad areas of UN relevance and reform. Short on practical recommendations, the report nonetheless addresses the jugular issue of the use of force in a world in which threats transcend borders, and action to prevent mass killing cannot stop at the international boundary.
The report, titled A More Secure World: Our Shared Responsibility, gives its stamp of approval to several important developments in international law. Most important, the panel puts its weight behind the principle that state sovereignty implies rights as well as responsibilities. States that are unable or unwilling to protect their own citizens may no longer hide behind a wall of sovereignty. Equally, the rest of the international community has an obligation to take action to prevent mass killings and genocide, even if doing so requires intervention across state boundaries.
Of course, these ideas have been churning for many years. Yet, the high-level panel’s endorsement gives this once-controversial principle an aura of UN approval for the first time, and signals a major shift in international attitudes. The members of the high-level panel span the ideological spectrum from strict constructionist to liberal internationalist. Amre Moussa, Secretary General of the Arab League, Qian Qichen, former vice premier and minister for foreign affairs of China, and Gareth Evans, former foreign minister of Australia who is now president of the International Crisis Group, all served as members of the panel, which issued a consensus report. The alignment of their views behind the notion of conditional sovereignty may well be seen as a watershed.
Another significant development in international law is the report’s position on terrorism. The panel called on states to conclude a comprehensive convention on terrorism, which has been blocked for years by politically charged disagreement over the definition of terrorism, with clear overtones of the Israeli-Palestinian conflict. Yet, the diverse members of the panel faced up to the issue squarely, rejecting the use of terrorist tactics for any purpose, including foreign occupation, forthrightly stating there “is nothing in the fact of occupation that justifies the targeting and killing of civilians.”
The panel also missed some important opportunities. It failed to address the issue of international action when the Security Council is deadlocked, as it was over Kosovo. The report of the Commission on Intervention and State Sovereignty found in 2001 that international action without formal Security Council approval could be legal if necessary to prevent mass killings or genocide— essentially an exception for genuine international emergencies. The high-level panel chose to sidestep this question, focusing instead on how to build consensus among Security Council members in the hopes of making it less likely that the Security Council would deadlock.
The panel also missed the chance to discuss international responses to the growing risk of catastrophic terrorism. The panel made important suggestions for tightening the nuclear nonproliferation treaty, including making intrusive inspection— the standard encompassed in the Additional Protocol— the universal standard. But the panel failed to pursue the logic of Kofi Annan’s 2003 speech before the UN General Assembly in which he challenged the international community to consider when and under what circumstances early, collective preventive action, including diplomacy, pressure, and, if necessary, force, might be necessary to prevent dangerous weapons from falling into the wrong hands.
Of the report’s more than 100 specific reform recommendations, the most significant may be the proposal to create a peace-building commission to apply the resources of the United Nations to the costly and complex task of rebuilding after conflict. The international focus presently remains on military intervention to keep or enforce the peace. But international attention and effort has flagged for the equally important and longer-term effort needed to maintain the peace after an intervention.
By far, the weakest recommendation of the panel concerns the unsavory composition of the Human Rights Commission. The panel pointed to the damage done to the UN’s broader reputation by the regular presence of significant numbers of major human rights violators on the Commission. Every year about half of Freedom House’s “worst of the worst” are nominated to serve on the Commission. The report could have recommended that the regional groupings that nominate countries to the Commission exclude major rights violators from consideration. Instead, the panel proposed universalizing membership on the Human Rights Commission, a proposal which, if adopted, would only compound the problem.
Limitations aside, the high-level panel’s report represents a serious and sober effort by the UN to look at itself in the wake of the Security Council breakdown over Iraq. It is a hopeful step for those of us who favor collective action to self help.
Lee Feinstein is Deputy Director, Studies, at the Council on Foreign Relations, and Co-Chair of the CFR-ASIL Roundtable on Old Rules, New Threats.
In The Closing of the American Border, Edward Alden goes behind the scenes to tell the story of the Bush administration’s struggle to balance security and openness in the wake of the September 11, 2001, terrorist attacks.
In Termites in the Trading System, Jagdish Bhagwati reveals how the rapid spread of preferential trade agreements endangers the world trading system.
America Between the Wars explores how the decisions and debates of the years between the fall of the Berlin Wall and the collapse of the Twin Towers shaped the events, arguments, and politics of the world we live in today.
Complete list of CFR Books.
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