Balkinization: How Relevant is the UN? A Comment on Hathaway and Shapiro

How Relevant is the UN? A Comment on Hathaway and Shapiro

Stephen Griffin

Thanks to Tulane’s summer abroad programs, I have spent three weeks every July for the last five years in countries where, seemingly, everyone believes that the 2003 Iraq War violated international law. The basic argument, reviewed in the recent NYT op-ed by Oona Hathaway and Scott Shapiro, is that a war violates international law unless it has been approved by the UN Security Council. (To be sure, there are other ways for a war to be lawful under international norms, but no one thinks they apply either to Iraq or Syria). So Hathaway and Shapiro’s concern that any strike on Syria not authorized by the Security Council will undermine the structure of international law strikes me as a bit overwrought. We’ve been round this bramble bush before and darkness did not descend.

To be more specific, the charge of a violation of international law has consequences in domestic politics in countries like Britain and France in a way that it does not in the United States. In the US, the Iraq War remains very controversial, as the hearings held on Syria demonstrated. But not because it violated international law.

The real state of affairs, on which I elaborate below, is that the US has always had two tracks open to it to justify the legitimate use of force. One track is that of the national interest under the umbrella of the Constitution, perhaps with a sidecar of the support of allies and treaties (such as NATO) outside the UN system. The other track is that described by Hathaway and Shapiro, through the UN Security Council. The tracks can cross, as they did when President George H.W. Bush won Security Council approval for the Persian Gulf War, an approval that helped him win congressional authorization for the operation (although he would have gone ahead anyway had Congress turned him down).

The basic problem I see with Hathaway and Shapiro’s argument is that it poses a false choice between adhering to the UN process or being cast into a netherworld of kind of state system and military competition that existed prior to 1945. But the choice before us is neither collective security nor anarchy, but something messier in between. After all, it would be far from accurate to regard the UN as the sole guarantor of world order since 1945. I have this on pretty good authority. Listen to President Obama in his 2009 Nobel Prize address:

“Whatever mistakes we have made, the plain fact is this: the United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.” The global commitment Obama invoked is one of the founding stones of what I call the post-1945 constitutional order. That order is based on our national interest and grounded in democratic deliberation, however flawed it might be at particular historical moments.

Obama’s alternative is not really unilateralism, although some might think of it that way. Plenty of “unilateral” US actions since 1945 have had the substantial support of our allies and/or the American public. They were, in other words, based in a kind of democracy. And on the other side, the UN system was not created as a pure example of collective security. For truly collective security, for example, the UN would have to have its own armed forces, controlled by the votes (no vetoes allowed!) of the member states. This was actually proposed during the Paris Peace Conference that followed World War I and in the deliberations during World War II that led to the formation of the UN. But it seemed impractical for a host of reasons (including conflicting with the US Constitution!) and was dropped. Although historians continue to disagree about his intentions, the best evidence is that FDR envisioned the UN as a council of four “policemen” who would settle disputes in Great Power style, not subject to the whims of the member states. Whatever one might think of FDR’s plan, this was not a system of collective security.

Some might point to the Korean War as example of how the UN could effectively authorize the use of force to achieve collective security. But in truth, Korea stands just as much for the opposite. UN approval was basically a fluke, because the Soviet Union was boycotting the Security Council (they never made that mistake again). Truman was not able to convert the UN’s approval into domestic legitimacy for the war (he never really tried, despite the efforts of the State Department) because he ignored the relevance of the domestic track under the Constitution. His successors properly judged this a fatal error and began to ask for authorizations from Congress (as I analyze in this blog post for the National Constitution Center). Furthermore, the fact that the US bore the brunt of the fighting had significant domestic implications. When the Senate woke up to this reality there was much bitterness and resentment directed against the UN. So fighting a major war under the auspices of the UN made the order created by the Charter unstable. The UN could only guarantee peace and order on the Korean peninsula with a massive commitment from the US. Given this situation, it is unreasonable to suppose that a true collective system, as opposed to one that was more unilateralist, could last.

And it didn’t. Try to recall the last time when a presidential candidate promised to make the UN a more relevant player in American diplomacy. From what I have observed, scholars of international law tend to write as if the UN were like an endowment, with the US having made a substantial deposit in 1945 that has never been withdrawn. As I read the situation, both political and constitutional legitimacy works more like subscribing to a journal of opinion. Such subscriptions must be renewed regularly if the journal is to last. Since at least the Nixon administration, public support for acting solely through the UN has never been high. Perhaps those interested in promoting the role of international law in our domestic constitutional order should confront this reality meaningfully and try to change it through democratic means.

Posted 1:36 PM by Stephen Griffin [link]

Comments:

I think this is absolutely correct empirically. The charitable reading of Hathaway-Shapiro is that an American unilateral attack would be a significant blow to any remaining legitimacy that the "UN system" retains. Even if, as Steve argues, it's not a true "collective security" regime, it is designed to rein in sheer unilateralism.

It is a mistake to fixate, as Samantha Power does, on Russian intransigence in presumptively using its veto power. Is there any reason, for example, to believe that a majority of the current Security Council or a majority of the General Assembly, whether by number of states (including Fiji) or population (including India) would support military intervention in Syria? I assume one could get an anodyne resolution condemning the use of chemical weapons, but that's altogether different from supporting an armed attack.

The fact is that President Obama, as the result of a mixture of sheer ineptitude plus high moralism, has put himself and the US very far out on a limb, with extraordinarily little support (other than the French). If we did have stronger support, especially from the Arab League, I think it would be perfectly "proper" to ignore the UN, as occurred in the "illegal but legitimate" intervention in Serbia. But that is light years from the present case.

# posted by

Sandy Levinson : 4:11 PM

Isn't it just a comment on the moral depravity of the U.S. that no one cares that the Iraq war was an illegal war of aggression, for which the U.S. would, if there were an actual international legal regime, have to pay reparations for? If there's a mistake in the Hathaway-Shapiro line it's that there is an international legal regime. But they are clearly correct that an attack on Syria is unlawful, and I would also venture that they are clearly correct, from a purely utilitarian point of view, that the vast majority of humanity would be better off if countries actually did not launch wars of aggression based on their idiosyncratic rationale du jour.

# posted by

Brian Leiter : 6:32 PM

I also have to ask, and I hope you'll forgive me Steve, but were you seriously endorsing this self-serving nonsense from Obama:

“Whatever mistakes we have made, the plain fact is this: the United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.”

The prospect of the U.S. and the Soviet Union engaging in a nuclear conflict did impose some stability to the international order, though each country reeked terror on countries within its sphere of influence. Since 1991 things have been different, of course. The war of aggression against Iraq would not have occurred if the Soviet Union had still existed, but that is just one example.

# posted by

Brian Leiter : 6:47 PM

Brian:

Part of establishing global security was the Reagan Doctrine of eliminating the USSR by regime change. Since the Soviet Empire was replaced with democracies (albeit imperfect ones), there is no more talk of nuclear terror or wars between European powers.

Ditto Iraq. No one considers democratic Iraq a threat any longer.

Rudolph Rummel was essentially correct - democracies do not war against one another.

# posted by

Bart DePalma : 9:34 AM

Putting to one side the correctness of the "democratic peace" thesis, about which there is a rich literature, no sane person would consider Iraq to be a "democracy."

# posted by

Sandy Levinson : 12:17 PM

Sandy seems with this comment:

" ... no sane person would consider Iraq to be a 'democracy.'"

to abandon his recent "strange bedfellow" with an accurate observation.

# posted by

Shag from Brookline : 12:50 PM

Sandy:

We are in no position to judge other democracies, especially Iraq.

Iraq has more political parties and more voter participation than the US, especially in comparison to our 2012 election, where millions more than usual simply sat out the election out of disgust at their choices.

# posted by

Bart DePalma : 1:11 PM

Sounds like our SALADISTA may be lining up a visa to flee (at least until Obama's term is over) our democracy for the more democratic Iraq. Alas, his DUI legal skills may go for nought there. But he might enjoy the Iraqi pastime of shooting weapons in the air (even though the Iraqi constitution lacks a provision comparable to our lesser democracy's 2nd Amendment). At least he won't have to shave to feel at home. Might BB's many references to "Baghdad Bart" become reality?

# posted by

Shag from Brookline : 2:56 PM

I think Sandy is right that Obama is out on a limb. It looks like he may be retreating under fire (so to speak) if Jack Goldsmith is right over on Lawfare.

I don't think the US is moral depraved re the UN -- what, the whole population? It would be more accurate to say that many different public officials abdicated their responsibility to explain to the American people why the US sticks with the UN, despite many valid criticisms. Not too much honesty there, so why would you expect the public to understand?

I don't think Obama's Nobel Prize speech was self-serving. It was in service of a very common view, perhaps more common among conservatives (who praised the speech) than Vietnam-era liberals (and I don't know Brian's age). That view has some large problems, but it is noteworthy that at least some of our allies would at least partly agree with what Obama said.

# posted by

Stephen Griffin : 6:18 PM

At least he won't have to shave to feel at home. Might BB's many references to "Baghdad Bart" become reality?
# posted by Blogger Shag from Brookline : 2:56 PM

The idiots who still think that invading Iraq was a good idea should be required to move there.

Also, anyone who thinks that Blankshot would oppose an attack on Syria if President McCain was calling the shots should be forced to spend some time in Baghdad with Bart.

# posted by

Anonymous : 6:31 PM

Over at TomDispatch.com:

http://www.tomdispatch.com/post/175744/tomgram%3A_andrew_bacevich%2C_drama_from_obama/#more

consider Andrew Bacevich's "The Hill to the Rescue on Syrian?" - the views of a Professor of history and international relations. Whether intentional or not, Obama has started a long overdue debate on the imperial executive. If Congress approves, Obama will most likely go ahead. If Congress does not approve, the test of the debate will depend on whether or not Obama decides to go ahead. In the past, presidents have proceeded with or without UN approval, with or without congressional approval, so Obama has many political executive precedents he can rely upon. Will the imperial executive prevail? Much will depend upon Congress, to which Obama has turned. Will Congress finally challenge the imperial executive? If so, how may Obama respond?

Perhaps constitutional scholars should be concerned with views outside of their expertise.

# posted by

Shag from Brookline : 7:45 AM

Thanks for your reply, Stephen.

I was not born when the United States invaded South Vietnam in 1962 to prop up a dictator, and I was 12 when the war ended. So I am not a Vietnam-era liberal (I'm also not a liberal, except in a thin sense about some rights). The claim that the U.S. is morally depraved is not a claim about the whole population obviously; it is a claim about the general public culture. The failure of the public culture to appreciate why, since Hitler, there has been an international norm against wars of aggression is a moral failing, and, yes, it is certainly one for which public officials are largely responsible.

I am surprised you take the self-serving rhetoric seriously; it seems to me factually incredible, and not to well describe the effect of U.S. arms abroad or to take account of the carnage the U.S. has wrought since it began occupying the world after WWII.

It would be interesting to see empirical support (e.g., poll data) showing that the population, even in our allies, views the U.S. in the benevolent way you do. As I recall--perhaps inaccurately--there was massive popular opposition to the war of aggression against Iraq, even in countries that were part of the Coalition of the Billing, like Britain.

# posted by

Brian Leiter : 2:59 PM

Michael N. Schmitt's "The Syrian Intervention: Assessing the Possible International Law Justifications" provides a concise - 13 page - review. My download does not include the URL but it can be linked to at Larry Solum's Legal Theory Blog. [Cite: 89 Int'l. L. Stud. 744 (2013).]

# posted by

Shag from Brookline : 11:40 AM

I have read the comments, and I must say, it is really interesting for me to know the meaning of people who are older than me, as, maybe I am not that good in politic affairs.
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# posted by

Unknown : 10:29 AM

I did not take a course in International Law in law school. So Prof. Schmitt's concise article was most welcome. His discussion addresses providing assistance to the Syrian Rebels (p.p 751-2) as a possible violation of international law unless the rebels are accepted as the government of Syria, which the U.S. has not done (because some of the rebel groups are nasty people). Surprisingly, to me, his discussion of Humanitarian Intervention (p.p.752-755) seems strong based upon the British view, even though international law does not widely accept such as a legal right.

# posted by

Shag from Brookline : 8:19 AM

Michael Ignatieff's NYTimes Op-Ed today "The Duty to Protect, Still Urgent" looks for humanitarian intervention in Syria.

# posted by

Shag from Brookline : 10:01 AM

aptalks

# posted by

rmworx : 6:52 AM