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

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.