View
217
Download
1
Category
Preview:
Citation preview
Break It, Don't Fake ItAuthor(s): Thomas M. FranckSource: Foreign Affairs, Vol. 78, No. 4 (Jul. - Aug., 1999), pp. 116-118Published by: Council on Foreign RelationsStable URL: http://www.jstor.org/stable/20049370 .
Accessed: 14/06/2014 09:46
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp
.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.
.
Council on Foreign Relations is collaborating with JSTOR to digitize, preserve and extend access to ForeignAffairs.
http://www.jstor.org
This content downloaded from 195.78.108.40 on Sat, 14 Jun 2014 09:46:06 AMAll use subject to JSTOR Terms and Conditions
Responses
Sidelined in Kosovo?
The United Nations' Demise Has Been Exaggerated
Break It, Dont Fake It THOMAS M. FRANCK
Michael J. Glennon has announced the
end ofthe U.N. peacekeeping system
("The New Internationalism," May/June
1999). He cautions us not to mourn
the "death ofthe restrictive old rules on
peacekeeping and peacemaking," how
ever, since they have "fallen out of synch with modern notions of justice."
Glennon sees the United Nations'
antiquated rules as responsible for the
fact that most bloody conflicts in recent
history have been simply ignored as
"domestic matters" that lie beyond the
systems jurisdiction. He asks that we
now celebrate "Americas new willingness to do what it thinks right?international law notwithstanding."
These musings might have seemed
plausible several months ago, when nato
was just gearing up to bomb Yugoslavia over its treatment ofthe Kosovars. Nato
action was more attractive then, especially since the Security Council was
paralyzed
by Chinese and Russian support for
Yugoslavia. But even then, Glennons
description ofthe United Nations'
[116]
problem was wrong and his remedial
prescriptions destabilizing. The U.N. system is not hobbled by
"old rules" that restrict forceful responses to situations of "domestic" violence or
that preclude action in new situations of
internal civil conflict. It is a mistake to
cite Article 2(7) ofthe U.N. Charter as a
ban on intervention "in matters which are
essentially within the domestic jurisdiction of any state," for this restraint does not
apply when the Security Council decides to impose "enforcement measures" under
Chapter VII ofthe charter. Thus Glennon
is wrong to argue that the rules bar action
to halt intrastate violence: they simply
require that the intervention first be
approved by the Security Council.
WHERE THERE'S A WILL . . .
Indeed, the council has authorized forceful
tactics in numerous civil wars and against various regimes that oppress their own
citizens: in Bosnia, Somalia, Rhodesia,
South Africa, Haiti, and Iraq. And in December 1998, the Security Council used
a Chapter VII resolution to demand that the Taliban end its oppression of women in
Afghanistan, opening the door to future
collective enforcement should they refuse.
This content downloaded from 195.78.108.40 on Sat, 14 Jun 2014 09:46:06 AMAll use subject to JSTOR Terms and Conditions
Sidelined in Kosovo?
Although it is true that the United Nations' responses to these and other
domestic conflicts have ranged from the
decisive to the ineffectual, in no case were
the "old rules" of engagement the problem.
By blaming the "old" charter system for the failures?without noticing successes
like Namibia and Mozambique?Glennon diverts attention from consideration of
the United Nations' real but limited
capabilities. He fails to recognize that
the most decisive factor in containing civil conflict has proven to be the degree of American support for and participation in U.N.-authorized prophylactic
measures.
When American support is steadfast, U.N.
efforts tend to achieve their objective, as
in El Salvador. When it is weak, as in Somalia and Rwanda, the world body fails.
These outcomes have little to do with the
"old rules" or basic flaws in the system. But what about the veto? Isn't nato's
use of force in Kosovo, without Security Council authorization, evidence ofthe
United Nations' practical failure? Does
not the shift in focus from a global (U.N.) to a regional (nato) solution highlight the way Russia and China have managed to keep the world body from taking just and necessary measures?
To believe that is to misunderstand the
role ofthe veto in the U.N. system. Russia
and China, in opposing military action to
support Kosovar autonomy, reflected their
own insecurity over Chechnya and Tibet.
The veto is metaphoric ritual like the
lifting of a skunk's tail. It signals, Proceed
with care. It therefore serves as a valuable
aid to rational risk assessment. That we
deplore its use in the circumstances of
the Kosovo debacle does not mean either
that the veto has lost its usefulness or that
it has become an insuperable bar to action.
After all, the veto can be avoided?as
during the Suez crisis of 1956 and the
Congo crisis of 1961, when focus shifted
from the veto-bound Security Council
to the General Assembly. In the case of
Kosovo the West acted through nato. In
each instance, actions were taken?despite the veto?because it was judged worth the
risk. Conversely, it is assuredly not fear of
the Chinese veto that prevents more force
ful Western action on behalf of Tibet.
Glennon, in sum, is wrong to blame
the "old rules." They work as well, or as
badly, as states want or allow them to.
UNCIVIL DISOBEDIENCE
Bad analysis produces worse prescription. Glennon would have us scrap the current
rules ofthe game, do the right thing, and
then write new ones. "If power is used to
do justice," he argues, "law will follow."
But follow where? Back to a future
in which rival blocs fix things in their
neighborhood: nato in the Balkans, the former Soviet states in the Baltic
region, the Arab League on the West
Bank, ecomog (the peacekeeping arm
ofthe Economic Community of West
African States) in western Africa? Is it
really time to reinvent multiple versions
ofthe Concert of Europe? Glennon's unpalatable "system-up"
approach to remedying the United
Nations' undoubted problems obscures
the real issue posed by Kosovo. What
does a nation like the United States?one
with the power and the will to ameliorate
a human catastrophe?do when, to act,
it must violate general rules of the
game? India faced that choice before
invading East Pakistan to stop the
slaughter of Bengalis in 1971. People stranded on mountains or in lifeboats
FOREIGN AFFAIRS July/August 1999 [117]
This content downloaded from 195.78.108.40 on Sat, 14 Jun 2014 09:46:06 AMAll use subject to JSTOR Terms and Conditions
Franck, Luck, ?tal.
face a comparable personal choice
when, to save many, they contemplate
cannibalizing one of their number.
Nato's action in Kosovo is not the first
time illegal steps have been taken to
prevent something palpably worse.
Law gives those taking such illegal but
necessary action several well-established
defensive strategies. They may deny
having been authors ofthe illegal act, or
argue that the act is not actually illegal.
They may call for a change in the law
to make their action legal. Or they
may argue mitigation, by showing that
their illegal conduct was still the least
unacceptable possible outcome. Every law student knows that even cannibalism, if demonstrably the least-gruesome alter
native in the circumstances, is treated
leniently by the law. But they also know that it would be
no advance for civilized society if the
legal impediments to cannibalism were
dismantled. Laws, including the U.N.
Charter, are written to govern the general conduct of states in light of historic
experience and the requisites of good order. If, in a
particular instance, a general law inhibits doing justice, then it is up to each member ofthe community to decide
whether to disobey that law. If some so
choose, however, their best strategy is not
to ridicule, let alone change the law: it is
to proffer the most expiating explanation ofthe special circumstances that ordained
their moral choice.
thomas M. franck is Murvy and Ida
Becker Professor of Law and Director ofthe Center for International Studies at New York
University's School of Law.
A Road to Nowhere EDWARD C. LUCK
By caricaturing the past, misreading the
U.N. Charter, and prematurely divining the lessons of Kosovo, Michael J. Glennon
concludes that international law and prac tice have entered a brave new humanitarian
world and that the restrictive old United
Nations should step aside. But the present is not so radically different from the past, and Glennon's argument sheds no light on those persistent political dilemmas
that confound international law and
organizations as perplexingly in 1999
as they did in 1945 and 1919. While others warn of U.N. meddling,
Glennon roughly asserts that the U.N.
Charter is fundamentally anti-interven
tionist. Although any number of repressive
governments have claimed that the United
Nations is prohibited from intervening in
their internal affairs, the charter specifically
grants the Security Council authority to
override this principle if it finds a potential threat to international peace and security.
More incrementally but more powerfully,
the very principles and purposes ofthe
charter?with their emphasis on human
rights, fundamental freedoms, humani
tarian values, and economic and social
development?have undermined barriers
to outside scrutiny that have been erected
by repressive regimes.
Contrary to Glennon's contention, the
charter does not require a "cross-border
attack" to permit international enforcement
action. Aggression is only one of several
possible triggers stipulated in Chapter VII, which uses broad terminology to
permit considerable discretion by the
members ofthe Security Council.
[ll8] FOREIGN AFFAIRS - Volume78No.4
This content downloaded from 195.78.108.40 on Sat, 14 Jun 2014 09:46:06 AMAll use subject to JSTOR Terms and Conditions
Recommended