Mend It or End It 
From the December 20, 2004 issue: Taking U.N. reform seriously. 
by Mario Loyola 
12/20/2004, Volume 010, Issue 14 
IT IS NOT ENOUGH to denounce unilateralism, Kofi Annan told the United Nations General Assembly last year, unless we also face up squarely to the concerns that make some states feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action.
Translation: It's time for the U.N. to move beyond the gnashing of teeth and rending of garments over the Bush administration's preemptive Iraq war and do something constructive with its anti-American anger. The U.N. being what it is, Annan's next step was to appoint a panel and commission a report, which was released in early December. The most flamboyant recommendation was to enlarge the Security Council from 15 members to 24. But this is ultimately a cosmetic change, as the five veto-wielding members (the United States, Russia, Britain, France, China) would remain the same. Beyond that, the panel offered an uninspiring mix of self-criticism and anti-American sniping, even as it failed to confront the U.N.'s deepest flaw: the chronic inability of the Security Council to solve any of the problems for which it claims responsibility.
You might say that this flaw is built into the organization. When the Great Powers convened an international conference in San Francisco to adopt the U.N. Charter in 1945, they began their work with an elegant draft treaty, the Dumbarton Oaks Proposals, named for the gorgeous Georgetown estate where their foreign ministers had spent much of the previous summer hammering out the outlines of the new world order. The Proposals were a monument to the State Department's institutional talent for careful technical study and drafting precision. Alas, they emerged from the San Francisco conference mutilated, enshrining a presumption against the use of force that only the Security Council can override.
In the original draft, the use of force was presumed legitimate so long as it comported with the purposes of the new organization--which included the maintenance of international law, and the prevention and removal of threats to the peace. This would have left the legality of many kinds of wars--preemptive action, humanitarian intervention, arms control enforcement--where it belongs, in the evolving body of customary international law. But the final text reversed this presumption: It made the use of force illegal in almost all cases--no matter how necessary or justified--unless the Security Council first approves.
Instead of facilitating collective action, as the drafters had imagined, the Security Council under this new dispensation would mainly function to block the use of force by the very states for whom legitimacy matters most--the great democracies. The U.N. was conceived as a body that would make it impossible for an aggressive regime like Nazi Germany to violate treaties with impunity and arm for a war of conquest. But the San Francisco conference gave birth to a system that would have made Hitler's rise even easier.
The problem was recognized by at least some of the delegates; hence the existence of Article 51 of the U.N. Charter, which preserves an inherent right of . . . self-defense if an armed attack occurs. But Article 51 would be void for vagueness if it were within the power of any court to declare it so. What, after all, is an inherent right if you are specifying by treaty the only situation in which it can be exercised?
Kofi Annan's panel cheerfully concludes that Article 51 needs neither extension nor restriction of its long-understood scope. In fact its scope has never been understood. The cacophony of scholarly opinion on the meaning of Article 51 is dizzying. The only thing everyone agrees on is that the provision cannot mean what it plainly says. As the panel recognizes, states have long claimed the right to preempt an imminent attack. But the reason for this is not that the Charter graciously permits them to, but rather that most of the Charter didn't survive contact with reality. Accommodating the preemption of imminent attacks is not a legal interpretation of the Charter. It is desuetude, and few treaties have ever deserved it more.
Franklin D. Roosevelt understood that the anti-Axis alliance, organized as a permanent coalition of United Nations, could be a pillar of global security. What most closely approximates his vision, though, is not the U.N. but NATO. Roosevelt never dreamed that the Security Council would be the exclusive forum for determining the legitimacy of military force. That issue was put to rest in the negotiations leading to the Moscow Declaration of 1943, in which a requirement for unanimous Great Power agreement before any one of them could resort to military action was rejected out of hand. What they agreed was to use force according to common principles, and after joint consultation--which is the basic idea of the Dumbarton Oaks Proposals.
Alas, Roosevelt died a few months too soon, and the finishing touches on the U.N. were left to a pair of Midwesterners--Harry Truman and Arthur Vandenberg--who were as idealistic as they were simple-minded. Truman dreamed of creating a Parliament of Man, and this almost childish fantasy lives on in the U.N.'s claim for itself not only of unique legitimacy but also, even more improbably, success. In his 2003 speech to the General Assembly, Kofi Annan intimated that America was challenging the system that had preserved international law and world peace for nearly 60 years. This is a fantastical denial of history. It is the United States that has preserved some semblance of order in the world for the past 60 years, while the U.N. dedicated itself chiefly to abusing Israel.
THOSE WHO THINK (or hope) that the U.N. will fade into irrelevance fail to consider the enormous and very valuable benefits the Charter confers on aggressive outlaw states. The most important of these is the elimination of what lawyers call self-help enforcement: the right to enforce one's rights unilaterally. Before the Charter came into existence, your violation of a treaty triggered my right to enforce the terms of the treaty by force. Today I need the Security Council's permission. This encourages violators to do as they please and hide behind the Charter, knowing that law-abiding states will face an unpleasant choice between legitimacy and security.
The problem's roots go deeper than many U.N critics realize: The United Nations is in a sense systematically destroying international law. In his magisterial 1950 commentary on the U.N. Charter, the Austrian-American jurist Hans Kelsen wrote, To the extent a Member is deprived of its right of self-help, enforcement action of the Organization must actually take place, otherwise the Organization constitutes, instead of an improvement, a dangerous deterioration in the content of general international law. The reason is simple: A rule that carries no penalty for violations does not rise to the level of law and is at best merely a voluntary norm.
Consider the International Atomic Energy Agency's disastrous Iran policy. Here the Annan panel report makes among the most intelligent of all its recommendations: It adopts President Bush's far-reaching proposals for reform of the nonproliferation regime. The panel recognizes that enrichment and reprocessing capabilities constitute a threat, even though they may technically be legal under the nonproliferation treaty.
But again, the proposals fail to address the root of the problem, which is the lack of effective enforcement. The panel sheepishly recommends that the U.N. do a better job of dealing with enforcement, but it is crucial to grasp that the failure is not, as Kofi Annan would have it, one of political will. The problem is structural. If the nonproliferation treaty does not provide for automatic enforcement, the only way that the obligations it enshrines can have the character of law is if the IAEA establishes penalties as a matter of custom. Instead, in its nonresponse to several years of disclosure violations by the government of Iran, the IAEA has established as a matter of custom that the disclosure rules will not be enforced.
The panel report is not entirely vapid. Its discussion of Collective Security and the Use of Force is a brazen attempt to seize control of our national security policy--and impose on us a policy of appeasement, no less. The panel observes that those concerned with gathering threats should go to the Security Council, which can authorize [preemptive] action if it chooses to. If it does not so choose, there will be . . . time to pursue other strategies, including persuasion, negotiation, deterrence, and containment. The panel insists that we wait until an attack is imminent, ignoring the fact that in an age of terrorism and weapons of mass destruction, we can no longer know that an attack is imminent.
For all the report's failings, it would be wrong to dismiss its importance. Norms are developing in the international system that are dangerously inimical to U.S. security, and we must push back. Kofi Annan, whose anti-Americanism has been greatly exaggerated (by his own press office, among others), has now given us an opportunity to do just that.
The Bush administration might do worse than to take these proposals as an opening to return to Dumbarton Oaks. We should court our democratic partners in the U.N. enterprise to see how much of the original concept can be revived. And we should remind them of the argument France made in opposition to the Charter's final text: States must be free to act when the Security Council fails to act.
The U.S. government has long asserted this right. But the legal arguments it has advanced to justify it are simply attempts to fit a round peg in a square hole. Under international law, a legal argument is only as valuable as its diplomatic effect, and most diplomats today think that U.S. national security policies are at odds with international law. Something in that equation needs to change, and it isn't U.S. national security strategy.
The U.N. is sapping America's prestige, tying us down in Lilliputian legal restraints whose origins and logic are never questioned. To hope that the U.N. will go the way of the League of Nations ignores the vital force America has imparted to it over the last 60 years. Our creation has become a hostile power, one that profoundly distorts the natural power patterns of international security, and protects the gestation of the most terrifying threats we have ever faced. The U.N. should either be reformed to serve the purposes of its founding, or we should kill it off once and for all. Whichever you prefer, the numbingly tepid report of Kofi Annan's panel may just prove to be an opportunity in disguise.
Mario Loyola last wrote for The Weekly Standard on the death of Yasser Arafat. 

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