Richard A. Falk
Albert G. Milbank Professor of International Law and Practice,
Princeton University
It is a hopeful sign that member states are now beginning to think boldly and in a more radical way, about how to make the UN better serve the peoples of the world--which is what the Charter promises to do.
All the suggestions we have heard move in the direction of democratizing the central organ of the UN and also challenging the notion that the UN can be allowed to remain an instrument of geopolitics. Democratization is the most fundamental rationale for reform and at the same time geopolitics is the biggest obstacle to any meaningful change in the organization.
For many people, the Gulf War experience led to an understanding that the UN was approaching a real crossroads. On the one hand, the UN was more effective than any international institution had ever been, in response to a clear instance of aggression. On the other hand, it had been virtually appropriated by the United States government, as an extension of US foreign policy. In this double reality, one saw, in the boldest form, the tension between effectiveness and legitimacy. Probably, without a strong United States commitment, the organization can not be effective--at least in the context of a major challenge to peace and security. But the US government is not prepared to participate in a serious manner unless it can control the operation. Yet such control means that the operation is no longer really collective, at least not in the sense that "collective security" was envisioned by the Charter.
Then, there is another problem with geopolitical manipulation of the Organization. The UN only can be effective when the US and its close allies perceive a strategic interest to be at stake. Rwanda and Bosnia present no strategic interest. Oil is not in Rwanda or Bosnia; nuclear weapons were not about to be acquired by any of the parties. In such settings, we observe an organization that is unable--increasingly unable, I would argue--to respond to the most pervasive security challenges of the post-Cold War world order. This is so precisely because the UN is rarely confronted by strategic challenges to the major members arising from breakdowns of order. As a result, there is lacking a sufficient political will to mobilize an effective response.
In the Gulf War context, no cost was too great, no risk too high. The United States had sent 40,000 body bags to the region anticipating potentially very high losses. By contrast, influential political leaders in the United States have recently said: "changing the political structure of Haiti would not be worth a single American life."
There are two closely-related reform issues. One is liberating the Organization from geopolitics and the other is ensuring that it operates within some kind of constitutional framework, some kind of rule of law as a set of governing restraints. The rule of law is a set of guidelines that are incorporated in the Charter and therefore constitute a kind of social contract between the member states and the global community, insuring that the Organization will respect the terms on which they joined. Therefore, the UN needs to maintain a reasonable respect for the sovereign rights of smaller countries--which in some sense is the most fundamental issue--and that it will operate without relying on double standards.
The other important role of the rule of law at this stage is to provide the non-governmental community with an instrument to expose and criticize, to contribute to the democratization and what people are now calling the "transparency" of the organization. (I would settle for a little mist. Transparency is a utopian goal, but everyone talks of "transparency" in the midst of fog!) In other words, trying to assess, by some kind of reference to the Charter and to international law, the legitimacy of Security Council actions, putting real limits on political discretion.
This kind of constitutionalism is obviously necessary if we look back at just three recent developments. One was the Gulf War, where two very fundamental violations of a constitutional framework occurred, in the course of framing a response to Iraq's aggression. The first and most serious was the extent to which the Organization chose war over diplomacy as a way to resolve the conflict. If there is anything the UN is committed to (or should be committed to) it is the principle that the use of force should be an absolute last resort. It was very clear that the United States and its allies preferred to use force and war, whose essential objectives (removal of potential nuclear weapons capability) could not be achieved by a diplomatic settlement. This feature very much constrained the search for a peaceful settlement. It is not necessarily sure that a peaceful settlement could have been achieved or that the use of sanctions would have succeeded in reaching the allegedly core goal of reversing the occupation and annexation of Kuwait. But there certainly was not a disposition on the part of the US and its major allies to resolve the conflict in that way.
The other violation of the Charter was the unilateralism of the undertaking. From the beginning of the use of force, the decisions were taken in Washington and not in New York--decisions not only on what to destroy but also as to what the aims of the war were, when to stop, how far to go. The whole undertaking, in other words, was unconstitutionally delegated by the Security Council to the United States and its coalition. This involved what the Secretary-General has called an "absence of collegiality" (which is UN language for unconstitutionality, I suppose). Even the Secretary-General asserted in An Agenda for Peace that such an absence of collegiality must not be allowed to recur in the future.
An equally revealing abuse of the Security Council's constitutional procedures was evidenced in the imposition of sanctions on Libya, allegedly because of Libya's failure to extradite two of those accused of participating in the Lockerbie terrorist incident. Such a response represented another instance of an appropriation of the Security Council by US foreign policy, with very little relationship to what the proper role of the organ in the UN system should be.
A third example is the repudiation by the US government of the Nicaragua judgement of the World Court after 1986. The Security Council failed in its obligations to regard judgements of its own highest judicial body as imposing a serious obligation of enforcement. This failure sent a bad message--when powerful countries refuse to obey a decision of the court (and it was generally considered a fair and correct judgement) that there is nothing the Organization is willing to do about it.
All these examples confirm the degree to which the Security Council has become a captive to geopolitics. And a captive of geopolitics, I would stress, at a time when the strategic interest of the leading countries does not move in the direction of upholding the effectiveness of the Organization.
It is not surprising, then, that a mainstream organ of opinion like the British Economist would run a cover story with the UN flag at half mast and the inscription "Shamed are the Peacemakers." What has occurred, as a consequence of this post-Gulf War withdrawal of commitment by geopolitical forces, is an undermining of the sense that the UN can contribute positively to resolving some of the terrible crises throughout the world--crises such as have occurred in Somalia, Bosnia and now Rwanda. All these crises are viewed from the strategic point of view as marginal and therefore of no real significance.
Let me just say a few words as to how one might bring to bear the rule of law more effectively within the UN framework, while working to enhance effectiveness. I think it is important to distinguish three kinds of perspectives on how the UN Charter in particular could be interpreted.
The first way would be to say that the members should live within the literal text of the charter and that the Charter should be viewed like a treaty--that is, binding in terms of the language used.
The second way was pioneered by Dag Hammarskjoeld while he was Secretary-General. What is important is the spirit of the Charter, not the letter, and, therefore, it is possible to make innovations such as reliance on peacekeeping forces that were really not envisioned in the way the Charter was written. There is a compatibility between this spirit of the Charter--as opposed to the letter of the Charter--and the underlying purposes of the UN, namely to be effective in relation to peace and security.
The third way is what I would call geopolitical opportunism. That is, to bend and distort the Charter, both in letter and in spirit, in order to serve the foreign policy priorities of dominant member states. It is this third level that it is very important to challenge by way of UN reform. The challenge will come to some degree from the smaller members of the organization. But unless that challenge is reinforced, both by structural reforms and by citizen pressure, we will not have either an effective Security Council or a legitimate one. That fusion of legitimacy and effectiveness should be the objective of all of us who believe we need the UN as an organization to address the great problems of peace and security.
I see three lines of approach that hold promise to varying degrees and should be discussed:
The first is to make the Security Council more autonomous. A more autonomous UN will be able to strike a better balance between legitimacy and effectiveness than is now possible. Autonomy will rest, in my view, on some greater degree of financial independence for the UN. Some kind of tax on international finance--the Tobin Tax or the "invisible tax" on the huge volume of international financial transactions. There are many potential mechanisms available if the political support is present. The other requirement for strengthening autonomy is some version of a voluntary quick-reaction force, that operates with its own budget and its own training and is directly accountable to both the Security Council and the Secretary-General, with an important role being given to the General Assembly as well.
A second approach is some procedure to enable greater recourse to the World Court for advisory opinions in the event of dubious constitutional moves by the Security Council. One way to proceed would be to empower the General Assembly to pose questions. Another way would be to create an amendment that would give non- governmental organizations or a Peoples Assembly the right to challenge, by recourse to the World Court, the constitutionality of Security Council undertakings. Perhaps, over time, a bolder initiative in this direction, would be to make "advisory opinions" obligatory in their legal effect.
The third way, which has been so effective in the human rights arena, is for the NGO community to take on the job of UN monitoring. For that reason, I am very enthusiastic about Jim Paul's initiative with Global Policy Forum to begin this process. Information is an extraordinary source of power and influence at this stage of international life. If both the General Assembly and the NGO and citizens' community begin to gather information that challenges Security Council actions as soon as its undertaking encroach upon the boundaries of constitutional provisions, then it will begin to make the political arena of the UN much more responsive to the concerns of popular social forces, and hence more democratic. Such steps represent what we can realistically hope for at this stage, although their attainment depends on a much more formidable mobilization of grassroots pressure that now is in prospect.
