How the UN Can Recover

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“Agora: The Future Implications of the Iraq Conflict,” with articles by Todd F. Buchwald and others, in American Journal of International Law (July 2003), American Society of International Law, 2223 Massachusetts Ave., N.W., Washington, D.C. 20008.

Is the United Nations Charter a dead letter thanks to the U.S.-led war in Iraq and the new U.S. doctrine of preventive war?

That, in a nutshell, is the question that the editors of American Journal of International Law put to a dozen symposium contributors. The nine closely argued legal articles that resulted follow different paths, but all lead to some version of a negative answer.

John Yoo, former U.S. deputy assistant attorney general (1991–93), is one of several contributors who argue that the Bush administration acted in accord with international law in taking up arms against Iraq. But he says that Iraq was a “unique case,” because UN Security Council resolutions dating back to the 1991 Gulf War provided a legal basis for action. In the new world of terrorists, rogue states, and weapons of mass destruction, the luxury of time is absent, and new rules will be needed.

Richard A. Falk, a professor of law and international organization at Columbia Univer­sity, rejects such arguments. There’s a conflict, he says, and it’s not the UN Charter system that needs to be fixed, but rather U.S. foreign policy. Miriam Sapiro, a National Security Council official during the Clinton years, argues that the new U.S. doctrine of preventive war enunciated in September 2002 is a challenge to existing international law, and she thinks the Bush administration could and should quietly narrow its scope.

Jane E. Stromseth, a professor of law at Georgetown University Law Center, argues that the United States and other nations must work to adapt the UN Charter to the new threat of terrorism. The charter’s “core,” which proscribes wars of territorial expansion and conquest, remains sound, she says. And like the U.S. Constitution, the charter has proved “a living document” that can adjust to new circumstances, as happened when the Security Council pointedly refused to condemn NATO’s 1999 “humanitarian” war in Kosovo, though it had been waged without explicit UN authorization.

To address the potential threat of terrorists armed with weapons of mass destruction, the Security Council will need to update the concept of “anticipatory self-defense,” Stromseth argues. But the new U.S. doctrine of preventive war goes too far and “has the potential to be destabilizing.”

The United States, she writes, “has a stake in maintaining rules governing the use of force that can both protect American security and help to mobilize allies against those who challenge the agreed rules.”

The “harder issue,” in Stromseth’s view, will be how to enable the Security Council to enforce its own mandates. For several years before the war, “the council lacked collective spine on Iraq.” One way to begin revitalizing the body, she suggests, would be to appoint longer-term temporary members on the basis of the substantive contributions they would make to UN efforts, including peacekeeping and other enforcement mechanisms, as well as protection of human rights.

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