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Originally Posted by aceventura3
After numerous UN resolutions, after countless speaches about the threat, the Bush administration laid out their concerns to the world and to Congress.....
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ace, the invasion of Iraq was a crime of aggressive war....
http://www.benferencz.org/arts/83.html
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What happens now? The United Nations after Iraq
Thomas M Franck. The American Journal of International Law. Washington: Jul 2003.Vol.97, Iss. 3; pg. 607
I. WHO KILLED ARTICLE 2(4) AGAIN?
Thirty-three years ago I published an article in this Journal entitled Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States, which examined the phenomenon of increasingly frequent resort to unlawful force by Britain, France, India, North Korea, the Soviet Union, and the United States. The essay concluded with this sad observation:
The failure of the U.N. Charter's normative system is tantamount to the inability of any rule, such as that set out in Article 2(4), in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the super-Powers, has usually won out over treaty obligations.
Should international lawyers guard their faith in such circumstances? Or should we cut our coats according to the cloth? Si non possis quod velis, velis id quod possis. Perhaps. But, then, for one dazzling moment in the 1990s, the end of the Cold War seemed to revive faith in the Charter system, almost giving it a rebirth. Now, however, in the new millennium, after a decade's romance with something approximating law-abiding state behavior, the law-based system is once again being dismantled. In its place we are offered a model that makes global security wholly dependent on the supreme power and discretion of the United States and frees the sole superpower from all restraints of international law.....
....The unlawful recourses to force, during the period surveyed in the 1970 essay, were accompanied by a fig leaf of legal justification, which, at least tacitly, recognized the residual force of the requirement in Charter Article 2(4) that states "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." Then, the aggressors habitually defended the legality of their recourse to force by asserting that their actions, taken in response to an alleged prior attack or provocation, were exercises of the right of self-defense under the terms of Charter Article 51. Now, however, in marked contrast, they have all but discarded the fig leaf. While a few government lawyers still go through the motions of asserting that the invasion of Iraq was justified by our inherent right of self-defense, or represented a collective measure authorized by the Security Council under Chapter VII of the Charter, the leaders of America no longer much bother with such legal niceties. Instead, they boldly proclaim a new policy that openly repudiates the Article 2(4) obligation. What is remarkable, this time around, is that once-obligatory efforts by the aggressor to make a serious effort to stretch law to legitimate state action have given way to a drive to repeal law altogether, replacing it with a principle derived from the Athenians at Melos: "the strong do what they can and the weak suffer what they must."2
In this essay I will attempt to examine whether this neo-Melian doctrine will make any difference to the way the international system works, or whether our government, by dispensing with the lawyers' shopworn casuistry, is just being realistic in exposing the yawning gap between what states always do in their ambitious pursuit of power and what they are permitted to do by the fragile normative structure.....
....III. THE OPTIMISTIC 1990s
After the Soviet side of bipolarity crumbled, ....this could be brought about by rediscovering the Charter's founding principle: that force would be used only in self-defense against an actual armed attack; or after a threat to the peace had been determined by the collective decision-making process of the security Council acting under Chapter VII of the Charter; or, exceptionally, if the General Assembly, proceeding in accordance with the "Uniting for Peace" resolution,3 had determined the existence of a "threat to the peace, breach of the peace or act of aggression."
For about a decade, the international system seemed to be moving in this direction, with Article 2(4) miraculously reborn in a post-Cold War order underwritten by a return to the law of the long-languishing Charter. This expectation was reinforced, and was facilitated by, UN-organized or -authorized military deployments in the first Gulf war, the former Yugoslavia, Somalia, and Haiti. In 1989 the United States briefly reverted to the Cold War model by invading Panama and doing so under cover of a claim to be acting in self-defense. By and large, however, the decade after the Soviet collapse seemed to presage a resurrection of Article 2(4), albeit with some flexible adaptation in practice to reflect changes of circumstance.4
....on September 12, 2001, when the Security Council unanimously passed the resolution in reaction to the attacks on the World Trade Center and the Pentagon. This resolution demonstrated not only the goodwill and collective wisdom of the Council as global decision-making forum, but also the flexibility of the Charter system in adapting old text to new exigencies. It construed the Charter-based right of self-defense to include authority to use force against nonstatal terrorist organizations, as well as "those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of . . . acts" of terrorism.5 Two weeks later, the Council created mandatory global controls to prevent the financing of terrorism and the recruiting of terrorists, while adding procedures for monitoring and enforcing state compliance.6 It appeared that the long dormant Charter rules regarding recourse to force not only were starting to revive-that I had reported their death prematurely-but were exhibiting an altogether-unexpected capacity to grow and adapt. In a rapidly changing world, the Security Council was proving itself able to interpret and apply the rules in such a way as to make them responsive to new dangers posed by nongovernmental terrorism and terrorism-harboring states, treating these as bona fide threats to the peace against which resort to force in collective self-defense is not merely necessary but also permissible.
IV. THE RELAPSE OF 2003
The invasion of Iraq in March of 2003, and a penumbra of policy statements made concurrently by the United States, have succeeded in changing all that. Article 2(4) has died again, and, this time, perhaps for good. This is no mere happenstance. At the cutting edge of U.S. policymaking today are persons who have never forgiven the United Nations for the General Assembly's 1975 resolution equating Zionism with racism7 and who, despite its subsequent repeal, see the Organization as the implacable foe of Israel and the United States. The defanging of the United Nations has remained high on their agenda and the events of September 11, 2001, have created the opportunity to achieve that once-impossible dream. Thus has Article 2(4) taken another hit; this time, however, as part of a much broader plan to disable all supranational institutions and the constraints of international law on national sovereignty. If, as now seems all too possible, this campaign succeeds within the life span of the present U.S. administration, what sort of world order will emerge from the ruins of the Charter system?
V. DID THE IRAQ INVASION VIOLATE THE CHARTER?
Any prognosis regarding the future of world order must begin by addressing the question whether recent events have indeed had a transformative effect on the law of the international system and, if so, what that transformation portends. As in 1970, one must begin by making a clear-eyed appraisal of what has been happening. If the invasion of Iraq was nothing but an act of self-defense by the United States and its allies, or merely an exercise of police power previously authorized by the Security Council, these events would serve only to verify the continued efficacy of the Charter system. There would have been no violation of the cardinal principle of Article 2(4), as that no-first-use pledge is always subordinate to both the right of self-defense recognized by Article 51 and the right of the Security Council, under Chapter VII, to authorize action against a threat to the peace. If, however, the invasion cannot thus be reconciled with the rules of the Charter, does the invasion of Iraq constitute a simple violation of the rules-one of many and thus of no more legal significance than a holdup of the neighborhood grocery-or should it be celebrated as a deliberate and salutary move toward UN reform? Or should these recent events be understood, more apocalyptically, as the final burial of the Charter's fundamental rules? At this point in our analysis of the systemic significance of these events, it becomes essential to focus not only on facts but also on motives for action. Needless to say, this is swampy terrain; but one must try.
The invasion of Iraq can be positioned in each of these explanatory contexts, but just barely. It can be argued that the invasion was lawful (and thus neither violative nor transformative of the Charter). It can also be argued that, while the attack on Iraq may have been technically illegal, its transformative effect on the law has been wholly benevolent....
...The argument that recent events have not challenged, or have violated only de minimis, the Charter law pertaining to recourse to force is very difficult to sustain, although it enjoys the enthusiastic support of some American academics and the rather less enthusiastic support of State Department lawyers. Abroad, it has been advanced only by the British attorney general, supported by a prominent academic lawyer.8 As enunciated by Legal Adviser William Howard Taft IV of the Department of State, the argument has two prongs. The first is that the president may, "of course, always use force under international law in self-defense."9 The problem with that rationale is that, even if it were agreed that the right of self-defense "against an armed attack" (Charter, Art. 51) had come, through practice, to include a right of action against an imminent (as opposed to an actual) armed attack, the facts of the situation that existed in March 2003 are hard to fit within any plausible theory of imminence. This was a time, after all, when UN and International Atomic Energy Agency inspectors were actively engaged in situ in an apparently unrestricted search for weapons of mass destruction (WMDs) undertaken with full authorization by the Security Council.10 Whatever the inspectors did or did not learn about Iraqi WMDs, nothing in their reports lends any credibility to the claim of an imminent threat of armed aggression against anyone. Indeed, the memorandum of the attorney general of the United Kingdom, while supporting the right to use force, wisely omits all reference to this rationale for its exercise.11
The second prong of the de minimis argument is more sophisticated than the plea to have acted in self-defense. It avers that the attack led by Britain and the United States had already been sanctioned by the Security Council. Essential to the success of this assertion is a creative, and ultimately unsustainable, reading of three Security Council resolutions-678, 687, and 1441-and of their "legislative history." According to Legal Adviser Taft, Resolution 678
was the authorization to use force for the Gulf War in January 1991. In April of that year, the Council imposed a series of conditions on Iraq, including most importantly extensive disarmament obligations, as a condition of the ceasefire declared under UNSCR 687. Iraq has "materially breached" these disarmament obligations, and force may again be used under UNSCR 678 to compel Iraqi compliance.
. . .Just last November, in resolution 1441, the Council unanimously decided that Iraq has been and remains in material breacli of its obligation. 1441 then gave Iraq a "final opportunity" to comply, but stated specifically that violations of the obligations, including the obligation to cooperate fully, under 1441 would constitute a further material breach. Iraq has clearly committed such violations and, accordingly, the authority to use force to address Iraq's material breaches is clear.12
The British government developed this same thesis, claiming that, by Resolution 678 the Security Council had authorized "Member States to use all necessary means to restore international peace and security in the area" and that, while that authorization "was suspended but not terminated by Security Council resolution (SCR) 687 (1991)," it was "revived by SCR 1441 (2002)."13
This version of the meaning and intent of these three resolutions is highly problematic, and appears to have caused the resignation, on a matter of principle, of the deputy legal adviser of the British Foreign Office. Resolution 678 culminated a series of resolutions by the Security Council that condemned Iraq's invasion of Kuwait, called for the immediate withdrawal of the aggressor,14 imposed mandatory sanctions on Iraq until Kuwaiti sovereignty was restored,15 and declared the Iraqi annexation of Kuwait to be null and void.16 In each instance, the purpose of the resolution was solely to liberate Kuwait. Only when these measures failed to secure Iraqi withdrawal did the Council in Resolution 678, citing Chapter VII of the Charter, "authorize[ ] Member States co-operating with the Government of Kuwait . . . to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."17
This sequence readily demonstrates that the restoration of Kuwaiti sovereignty was the leitmotif of Council action. That the authorization of collective measures by Resolution 678 additionally refers to the restoration of "international peace and security in the area" does not connote some expansive further mandate for contingent action against Iraq at the discretion of any individual member of the coalition of the willing. President George Bush Sr. acknowledged as much in explaining why the American military had not pursued Saddam Hussein's defeated forces to Baghdad.18 They were not authorized to do so.
The resolution, however, certainly does signal that Iraq was to be subject to further post-conflict intrusive controls: those imposed by the Council in Resolution 687, as part of the cease-fire. These additional obligations are made binding by reference to Chapter VII of the Charter and they were designed, implemented, and meant to be monitored by the Security Council as a whole, not by any individual member acting at its own pleasure. Resolution 687, sometimes referred to as the "mother of all cease-fires," is not only a binding decision of the Security Council, but also an international agreement between the United Nations and Iraq, made effective only "upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance" of the provisions set out therein.19 In legal form, then, as also in substance, this proviso manifests that it is the Security Council and the United Nations, and not individual members, who are the parties, with Iraq, to the cease-fire agreement. It is they who are entitled in law to determine whether Iraq is complying with its commitments to the Council, how long these are to remain in effect, and what is to be done in the event of their violation.
The obligations imposed by Resolution 687 are certainly onerous, and encompass everything that Iraq, thereafter, has been accused of failing to do. Baghdad had to agree to the verified destruction of its weapons of mass destruction and any industrial capacity to produce them, as well as of its medium and long-range delivery systems.20 Monitoring of compliance, both by a special commission to be created by the Secretary-General and by inspectors of the International Atomic Energy Agency, became mandatory.21 Baghdad was also required "to inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory."22 What if Iraq failed to carry out these commitments to the Council and the United Nations? Clearly, this determination was to be made by the collective security process of the Organization. To ensure such follow-up, the Council, in Resolution 687, was "to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."23 It would take further steps, not individual member states acting without further authorization.
Neither the text nor the debates on the adoption of Resolution 687 reveal the slightest indication that the Council intended to empower any of its members, by themselves, to determine that Iraq was in material breach. Much less can the resolution be read to authorize any state to decide unilaterally to resume military action against Iraq, save in the event of an armed attack. That deduction is supported by the architecture of the Charter. For the Council to have made a prospective grant of unilateral discretion to states to deploy armed force, in the absence of an actual (or imminent) armed attack, would have been an unprecedented derogation from the strictures of Article 2(4). At the least, to be plausible, such a derogation would have had to be explicit. Moreover, such a delegation of unlimited discretion to individual states cannot be assumed because it could not have been implemented alongside the Council's institution of an extensive system of inspections under its authority and control.
The UK attorney general cannot overcome these objections by an unsupported averral that a "material breach of resolution 687 revives the authority to use force under resolution 678."24 As we have noted, the authority to use force under Resolution 678 extended exclusively to the liberation of Kuwait and to restoring peace and security in the region. In March 2003, the peace and security of the region did not require recourse to force, and the Council plainly did not think otherwise. What the Council thought is crucial. Resolution 687 would not have explicitly reserved sole discretion to the Council "to take such further steps as may be required for [its] implementation"25 if the Council had simultaneously intended to delegate that function to the sole discretion of member states.
Thus, neither Resolution 678 nor Resolution 687 helps Washington or London make a convincing case that they acted with, rather than against, the law. Nor are their difficulties in any way alleviated by Resolution 1441. While that instrument does deplore "that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687," it addresses that failure exclusively by deciding "to set up an enhanced inspection regime."26 Anticipating further Iraqi noncompliance, the resolution makes provision for the Council to be convened immediately "in order to consider the situation and the need for full compliance . . . in order to secure international peace and security," and it warns Iraq "in that context . . . that it will face serious consequences as a result of its continued violations of its obligations."27 It once again decides that the Council will "remain seized of the matter."28 The British attorney general somehow concluded from these words that even though the Council is to convene to "consider the matter before any action is taken," no matter what the Council does or does not do, "further [military] action can be taken [by a member] without a new resolution of the Council."29 From this he deduces that "all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force."30 This conclusion is at best a creative interpretation. In fact, what Resolution 1441 did was to purchase unanimity for the return of the inspectors by postponing to another day, which the sponsors hoped might never be reached, the argument as to whether Resolutions 678 and 687 had authorized further enforcement at the sole discretion of one or more of the Council's members.
Perhaps to its credit, the Taft statement does not tread this tortuous path. Instead, it argues that since the Council had recognized several times that Iraq had committed a "material breach" of Resolution 687, recourse to force rested within the sole discretion of each Council member in accordance with the provision of the law of treaties on the consequences of such a "material" violation of obligations.31 This tack moves the argument away from a parsing of Council resolutions to the Vienna Convention on the Law of Treaties. But it is the United Nations, not the United States, that is the offended "party" to Resolution 687, and thus it is the Council, not the United States, that has the option under the Convention to regard the resolution as voided by Iraq's material breaches. Additionally, even if the United States were regarded as a "party" to the commitments made by Iraq in agreeing to Resolution 687, a material breach would not release Washington, as the offended party, from the obligation under the Vienna Convention "to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the [materially breached] treaty."32 That provision, it would appear, places the United States squarely back under the obligation of Charter Article 2(4), which, in the absence of any provision in Resolution 687 to the contrary, must be regarded as an essential part of its legal context and which requires states to abstain from the use of force in the absence either of an armed attack or of prior authorization by the Security Council.
These British and U.S. justifications do not fare well under close examination, however benevolent their intent to demonstrate compliance with the Charter. Consequently, the effect of those nations' unauthorized recourse to force against Iraq must be seen as either revising or undermining the provisions limiting the discretion of states to resort to force.
VI. A CHARTER REVISED
Well, if the Iraq invasion did not exactly conform with the law of the Charter, should it not, at least, be celebrated as a violation that has the capacity to reform the law and make it more realistic?
In international law, violators do sometimes turn out to be lawgivers. I have argued elsewhere that the Charter, as a quasi-constitutional instrument, is capable of evolving through the interpretive practice of its principal organs.33 That interpretive practice may sometimes be led by states with an interest in outcomes that cannot be legitimated by a narrowly originalist reading of the text. In such circumstances, violation shades into revision, sometimes to the benefit of the law and the institution charged with its implementation. The phenomenon is not unknown, also, to domestic law, though it occurs much more frequently in the international arena. The International Court has confirmed, for example, that the abstention of a permanent member of the Security Council in a vote on a substantive resolution is no longer to be taken to constitute a veto as a result of "abundant evidence" of members' practice to that effect.34 The Court reached this conclusion despite the text of Charter Article 27(3), which requires that substantive resolutions receive "the concurring votes of the permanent members." In a similar example of the interpretive power of institutional practice, extensive UN peacekeeping operations have long been based on an evolutionary reading of the Charter's imagined "Chapter 6 1/2." Nothing in the text actually authorizes these by-and-large salubrious activities. In recent years, too, practice has seemed to legitimate such humanitarian interventions as those undertaken by regional organizations in West Africa and Kosovo, even though they had not received the requisite (Art. 53) prior authorization of the Security Council.35 Further evidence of this important interpretive change is afforded by the Constitutive Act of the African Union, Article 4(h) of which recognizes "the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity," when such intervention is authorized by two-thirds of the members.36...
...the dean of Princeton's Woodrow Wilson School, Professor Anne-Marie Slaughter. Seeking to close the gap between Charter norms and U.S. practice, she has proposed that the Security Council
adopt a resolution recognizing that the following set of conditions would constitute a threat to the peace sufficient to justify the use of force: 1) possession of weapons of mass destruction or clear and convincing evidence of attempts to gain such weapons; 2) grave and systematic human rights abuses sufficient to demonstrate the absence of any internal constraints on government behavior; and 3) evidence of aggressive intent with regard to other nations.37
Slaughter believes that other nations would agree to such an adumbration of Charter law because they would feel "stronger and safer" in an institutional system robustly able to address the global threat of terrorism and because such a reform, based on a reinvigorated United Nations, would open up "the only forum in which other nations can make their voices heard in deliberations with the United States." The United States and everyone else needs to recognize, she concludes, that the United Nations "is the forum in which a genuine multilateral decision-making process must take place."38
While it is altogether admirable to seek to make the invasion of Iraq an opportunity to strengthen the UN system, this analysis, alas, takes far too optimistic a view of what the administration in Washington and the governments of most other countries have concluded from this angry episode. For the Bush administration, it has underscored the danger of subordinating the policy discretion of the world's only superpower to the perceptions and interests of institutions in which other, mostly minor and sometimes venal, governments are able to project a degree of power entirely incommensurate with reality. This view is particularly troublesome when the issue pertains to a matter, such as international terrorism, that holds far greater interest for America than for most other governments. For almost all other members of the United Nations, on the other hand, the events leading up to the invasion of Iraq demonstrated the folly of embarking upon any renegotiation of the rules pertaining to the deployment of force, however sensible, when they knew full well that Washington would ultimately apply the agreed standards unilaterally. That, to most states, was the message of Resolution 1441, which ultimately became the legal justification for the invasion of Iraq. As the British attorney general put it, agreed standards are a sound basis for multilateral discussion, but not for multilateral control over action. The world's governments, their advice on Iraq spurned, now understand that the sole superpower's administration is not in the least interested in rules, old or new, if they are to be applied case by case through "a genuine multilateral decision-making process." It has no intention of subordinating its sole responsibility for protecting what it perceives to be its national security to the judgment of others.
A "genuine multilateral decision-making process" requires the willingness of each participant to accept views, perceptions, and policies it does not share, but that prevail within the institution engaging in the process. In the run-up to the Iraq invasion, it became clear that the overwhelming majority of nations-not, as some have said, just a power jealous President Jacques Chirac of France and the feckless Chancellor Gerhard Schroder of Germany-believed either that Iraq did not have a significant number of weapons of mass destruction or, if such weapons and the necessary delivery systems existed, that they could be found by the instituted system of inspections. Very few nations accepted that credible evidence could be shown of either WMDs or an operational link between Al Qaeda and the regime in Baghdad. This was a judgment call, pure and simple, and there are indications that the majority may have been right, and the United States and Britain wrong, as to both the evidence at hand and what to do about it.39 But the nub of the matter is not who was right and who wrong but who gets to decide what to do. The UN system did not "fail" because of differences of opinion about what to do if the facts were, indeed, as asserted by Washington. Saddam Hussein had no do-or-die defenders in the Council chamber. To the extent the Council can be said to have "failed," it failed because most states had "misunderstood" the role assigned to them under the Charter and the applicable resolutions. They expected, or naively hoped, to be the jury to which evidence and arguments as to the facts would be presented and that, collegially, they would then make the final decision about what should be done; whereas the British and U.S. governments took the view that, after the discourse ended, the decision would be up to them, alone. The problem is not one of devising new rules but of reaching agreement on who gets to apply them.
In essence, the Iraqi crisis was not primarily about what to do but, rather, who decides. There is an answer to that problem, of course, one clearly set out in Article 27 of the Charter. Through the veto, the United States, with the other four permanent members, has the right to block collective action and it takes frequent advantage of this prerogative. On the other hand, the Charter does not give the United States, or any other state, sole power to initiate action, except in response to an armed attack. While this deal may have seemed acceptable to America in 1945, it is apparently no longer satisfactory to the protectors of American preeminence. Nowadays, the U.S. government does not wish to be limited in this way. Thus, the invasion of Iraq is more accurately seen as a repudiation of the central decision-making premise of the Charter system than as a genuine opening to reform, unless by reform is meant the reconstitution of the international system along the lines of an American global protectorate.
This is a sad conclusion to offer well-meaning champions of the Charter system. Unfortunately, however, this is not a time for optimistic speculation about how to make the United Nations more responsive to new challenges. Rather, reformers need first to understand that the system stands in mortal jeopardy of being destroyed altogether. If, and only if, something can be done about that will there be another time to talk about improving the rules.
VII. REPUDIATING THE UN SYSTEM
The U.S. government (without, in this instance, the acquiescence of Britain) is out to disable the United Nations. Oh, yes, on its present tangent Washington will keep its membership, but primarily to block by its veto any action by others thought to be inimical to American interests. From time to time, the Bush administration may find it convenient to use the Organization to fix a famine, relocate some refugees, share some costs, even train a police force. What recent events make clear, however, is that the United States no longer considers itself subordinated in any way to the treaty rules that lie at the heart of the United Nations Charter. An anomalous situation therefore faces the Organization, which cannot expel a veto-bearing scofflaw state against its will, but which, in those circumstances, is doomed to encounter great difficulty in carrying out the wishes of its other members. Only three alternatives seem to offer themselves at present: the United States could change its policy, it could withdraw from the Organization, or the other members could withdraw to form a new system of international relations, a coalition of the seriously willing. None of these options are easy or probable.
Some see the present impasse as an opportunity to be rid of an international regime that is insufficiently responsive to both America's needs and the reality of our disproportionate power. The most creative of these "realist" intellectuals link the demise of the United Nations as a viable peace-and-security system to the invention of something more amenable to U.S. interests. But what? According to Michael Glennon, "Ad hoc coalitions of the willing will effectively succeed it."40 Really? Have we not already seen in the recent conflict what these ad hoc coalitions will look like: a sizable contingent from Britain, a few hundred policemen from Poland, Romania, and Bulgaria (at least until their nations are integrated into the European Union), a few soldiers from Australia and Albania, and good wishes from Israel? In practice, this prescription would require the United States to do everything alone, with Britain in tow at least until the next British elections-this in a world of rapidly intensifying animosity to almost all American projects.
To carry off such unipolarity, whatever its pros and cons, at a minimum requires a burgeoning economy and we do not have one. It also requires sociopolitical solidarity at home. To sustain such solidarity, a nation must be staunchly united. Yet, according to the eminent Republican economist Kevin Phillips, the social fabric was already badly frayed even before we began to shoulder the burden of this new global protectorate. In less than twenty years, Phillips has shown, the income gap between the richest 1 percent and the poorest 20 percent of the population has more than doubled, from a ratio of 30:1 in 1979, to one of 75:1 in 1997.41 Thus, there looms the specter not only of vast increases in the cost of foreign undertakings, but also of a radical shift in the bearing of that burden. The nation is about to reduce spending on basic needs like education, health care, and infrastructure by $100 billion. How much solidarity can one expect from parents with children in overcrowded, crumbling classrooms in which school lunches, computer training, and after-school enrichment programs have become a dim memory? How closely tied to the common enterprise can one imagine the overtaxed middle-class home-owners and white-collar workers in America's bankrupt cities to be? Have we so soon forgotten the experience of war at home when last we pursued the logic of preeminence in Vietnam?
Solidarity is also a matter of civic pride: how we, as a people, perceive our nation; and that is at least in part conditioned by how we are perceived by others. On September 11, 2001, every nation in the world voiced its support for us, sympathy for our tragedy, and willingness to join in the war on terrorism. Now, almost every nation regards us as the world's gravest threat to peace. Even in Britain, Spain, and Italy, nations whose governments sided with us over the war in Iraq, the publics overwhelmingly oppose America's assertions of unilateral power. This opposition is not based solely on our actions in Iraq. America, in its new reality check, has concluded that it need not accommodate the values and agendas of the world regarding the environment, land mines, or an international criminal court. Having recklessly separated us from both friend and foe, the standard-bearers of triumphal unipolarity have already realized half of their fantasy: we are, now, truly alone in the world. Saddled with so much animosity, we cannot possibly count on burden sharing as we seek to implement our national interest. The self-professed realists seem blissfully unfazed by this. They will come around. "Every major country," Professor Glennon says, "faces imminent danger from terrorism, for example, and from the new surge in WMD proliferation. None will gain by permitting these threats to reach fruition."42 In reality, however, few states regard themselves as directly threatened by terrorism in any of its present manifestations. On the contrary, they see cooperation with America, in its current mood, as an invitation to terrorist reprisal. If, up to now, they have supported American efforts to curb Al Qaeda, it is not because they regard themselves as its targets but, rather, because they have had a stake in the cooperative regime of UN collective security: the very thing Washington now seems determined to dismantle. If these states see supporting the United States as earning them a place on the terrorist hit list, but not a place at the diplomatic table where decisions on the war against terrorism are taken, few will apply for that hollow privilege.
At the heart of the debate about the future of American foreign policy is not this or that strategy toward one or another rogue regime. It is the role of institutions and law in policymaking generally. Glennon reflects the views of many in the current U.S. administration when he launches this bold assertion: "States are not bound by rules to which they do not agree."43 Significantly, he deletes the Westphalian concomitant: States are bound by rules to which they do agree. The United States, in full compliance with its own complex constitutional process, accepted the regime of the UN Charter, which includes limitations on the right of unilateral recourse to force. The states that opposed an armed invasion of Iraq did so not, as Glennon conjectures, because President Chirac wanted to restrict U.S. power but, rather, because they shared a widespread and still-credible belief that what the Washington policymakers had decided to do would make the problem of terrorism worse, not better. In refusing to assent to the U.S. strategy, they were responding exactly as the Charter intended. From the perspective of the policymakers, this dissonant response was unacceptable-not primarily because it hindered the Pentagon's strategy in this instance (it did not, except for the inconvenience of precluding a simultaneous invasion through Turkey), but because it reminded them that the United States remains treaty bound to an international regime that specifically forbids the unconstricted unilateralism Washington craves. While the usual U.S. response to such inhibiting entanglements is to reject the treaty, the administration understands that for the United States to withdraw from the UN system would leave its machinery intact but in the hands of others, an unpalatable outcome. Thus, we now see the effort to incapacitate what Washington can neither abide nor abandon.
VIII. THE BUSH SECURITY STRATEGY
The impetus to bring the postwar international regime to an end is broadly manifested in the 2002 National Security Strategy (NSS), making it necessary, in this context, to make reference to it.
Discussions of the implications of U.S. action against Saddam Hussein's Iraq inevitably become enmeshed in analysis of this grouping of statements by President George W. Bush, published in September 2002 under the title The National Security Strategy of the United States of America.44 The NSS recapitulates and restates several presidential statements, delivered between September 20, 2001, and June 1, 2002, in which a focused effort is made to redefine the concept of self-defense as an entitlement in international law so as to take into account the exigencies of modern terrorism, including the possibility of nuclear attacks by nonstatal actors such as Al Qaeda. In these public pronouncements, the president declared that the United States would not await a first strike of incalculable consequences but would use force first, and if necessary alone, against those who would commit acts no responsible government could fail to preempt.
What is notable in the NSS consists of two related, but different assertions. The first is that we "cannot let our enemies strike first."45 To meet that threat, the president promises that "the United States will, if necessary, act preemptively."46 To the same end, he introduces the concept of "anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack."47 By itself, this seems a reasoned extrapolation of existing rights of self-defense. After all, the principle of anticipatory self-defense has been known to international law for almost two centuries and has gained a certain credibility, despite the restrictive terms of Charter Article 51. This credibility is augmented both by contemporary state practice and by deduction from the logic of modern weaponry.48 However, the president appeared in his statement to be exponentially expanding the range of permissible preemption, from that of the Caroline doctrine, which requires a "necessity of . . . self-defence [that] is instant, overwhelming, and leaving no choice of means, and no moment for deliberation,"49 to something like a balancing of reasonable probabilities. Whether, and how wisely, this interpretation seeks to transform international law is debatable, even if it is widely acknowledged that a strict reading of Article 51 is no longer tenable in the face of modern terrorism and aggression. However, the implications do not end here, for there is more.
The president's second assertion is much more fundamental, although it received but passing mention. "While the United States will constantly strive to enlist the support of the international community," Mr. Bush said, "we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country . . . ."50 In this key sentence, he conflates an expanded, if perhaps necessary, concept of anticipatory self-defense with a militant and highly transformative assertion of a right by the United States to determine for itself whether, and when, the conditions exist to justify recourse to this expanded right. The sum of the two assertions is far greater than the parts, for, together, they set out the doctrine that the nation is free to use force against any foe it perceives as a potential threat to its security, at any time of its choosing and with any means at its disposal. This would stand the Charter on its head.
The point is a subtle, but important one. To the extent a state acts in "self-defence if an armed attack occurs," Article 51 of the Charter does, indeed, entitle it to decide, unilaterally, when and how to deploy military force. In that sense, Article 51 is unique in the Charter scheme, for it permits each state to decide for itself whether to use force, limited only by the conditionality "if an armed attack occurs." That terminology was intended to preclude the kind of bogus claim to be acting in self-defense that Germany used to justify its invasion of Poland in 1939. No such qualification applies to collective measures taken by the Security Council under Chapter VII of the Charter. Notably, these provisions permit the use offeree against many kinds of "threats to the peace" that do not take the form of an actual armed attack. Such action, however, must first be authorized by the Council, as it was in response to such threats to the peace as the military coup in Haiti, the disintegration of civil governance in Somalia, and the humanitarian crises in the former Yugoslavia, Albania, and Rwanda. In each instance, the decision to authorize resort to force was made collectively.
In the case of Iraq, the Council, instead of approving the use of military force, unanimously, in Resolution 1441, authorized an extensive system of international inspections. Three months on, most states seemed to think this inspection regime was working well enough to obviate, at least for the time being, any further preemptive action. The presidential policy set out in the NSS seeks to ensure that this sort of thing does not happen. It aims at ending all collective control over the U.S. recourse to force. This is not system transformation but system abrogation. Instead of the law of the Charter, we find an unabashed return to the Melian principle.
IX. WHAT CAN BE DONE?
It is not within the purchase of the lawyer to make, or to change, national policy. That, in a democracy, falls within the purview of the voters and their representatives. If the voters want the United States to play the imperial superpower, it is for the historians to warn of the discouraging precedents and for the economists to count the costs. It is for the press to portray fairly and fearlessly how that policy affects the people and societies at which it is directed.
What, then, is the proper role for the lawyer? Surely, it is to stand tall for the rule of law. What this entails is self-evident. When the policymakers believe it to society's immediate benefit to skirt the law, the lawyer must speak of the longer-term costs. When the politicians seek to bend the law, the lawyers must insist that they have broken it. When a faction tries to use power to subvert the rule of law, the lawyer must defend it even at some risk to personal advancement and safety. When the powerful are tempted to discard the law, the lawyer must ask whether someday, if our omnipotence wanes, we may not need the law. Lawyers who do that may even be called traitors. But those who do not are traitors to their calling. Ordinarily, however, the role of the lawyer is more positive: to help design the framework of rules, procedures, and institutions within which persons and peoples can live productively at peace with one another.
This may not be a moment in which that positive role can come to the fore, not a time when lawyers, particularly international lawyers, can flourish. In a sense, the "realists" are right. In the circumstances of the present power disequilibrium, it may be inevitable that those who have the power will sometimes seek to take advantage of it without much regard for such ephemera as respect for neutral and reciprocal principles. <h3>It is understandable that some politicians should behave in this way, but lawyers must not. Rather, they should zealously guard their professional integrity for a time when it can again be used in the service of the common weal.</h3>
[Footnote]
1 Thomas M. Franck, Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States, 64 AJIL 809, 836 (1970).
[Footnote]
2 THUCYDIDES, THE PELOPONNESIAN WAR: THE COMPLETE WRITINGS OF THUCYDIDES 331 (Richard Crawley trans., 1934). The effort Thucydides describes, of a highly cultivated, relatively democratic Athens, destroyed in a futile effort to protect itself against every eventuality by attacking and securing the submission of all islands from which danger might emanate, is highly relevant to our times.
[Footnote]
3 GA Res. 377A (V), UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (1950).
4 Chief among these was a general, if still controversial, acceptance that self-defense could entail a right of first strike against an immediate and overwhelming threat of attack, and the use of force in egregious instances of the violation of human rights and humanitarian law. See THOMAS M. FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 53-173 (2002).
[Footnote]
5 SC Res. 1368, pmbl., para. 3 (Sept. 12, 2001), 40 ILM 1277 (2001).
6 SC Res. 1373, paras. 1, 2 (Sept. 28, 2001), 40 ILM 1278 (2001).
7 GA Res. 3379 (XXX), UN GAOR, 30th Sess., Supp. No. 34, at 83, UN Doc. A/10034 (1975).
[Footnote]
8 The deputy legal adviser of the British Foreign Office, however, resigned in repudiation of this line of legal reasoning. Jimmy Burns, Anti-War Group Beset by Strategy Arguments, FIN. TIMES (London), Mar. 22, 2003, at 8. The British academic supporter was Professor Christopher Greenwood, who prepared an opinion for use in Parliament. Christopher Greenwood, Memorandum: The Legality of Using Force Against Iraq (Oct. 24, 2002), available at <http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmselect/cmfaff/196/2102406.htm>.
9 William H. Taft IV, Remarks Before National Association of Attorneys General (Mar. 20, 2003), excerpted at <http://usinfo.state.gov/regional/nea/iraq/text2003/032129taft.htm>.
10 SC Res. 1441 (Nov. 8, 2002), 42 ILM 250 (2003).
11 Lord Goldsmith, Attorney General Clarifies Legal Basis for Use of Force Against Iraq (Mar. 18, 2003), available at <http://www.fco.gov.uk> (statement in answer to a parliamentary question).
18 The president said, "The U.N. resolutions never called for the elimination of Saddam Hussein. It never called for taking the battle into downtown Baghdad." 1992-93 PUB. PAPERS 568.
39 That the evidence adduced for the Security Council by the British and American governments was, at best, unconvincing and in part misrepresented and falsified is suggested by many commentators. See Paul Krugman, Matters of Emphasis, N.Y. TIMES, Apr. 29, 2003, at A29; Nicholas D. Kristof, Missing in Action: Truth, N.Y. TIMES, May 6, 2003, at A31.
44 THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA (Sept. 17, 2002), available at <http.//www.whitehouse.gov/nsc/nss.pdf> [hereinafter NSS].
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