QUO VADIS, UNITED NATIONS?
Lecture delivered at the convocation on the occasion of the centenary of the Polytechnic University of the Philippines
and the third anniversary of the foundation of the College of Law
Manila, 22 June 2004
(I) From the League of Nations to the United Nations Organization – Compromising the notion of “sovereign equality”
(II) The collapse of the power balance of the Cold War and the crisis of the United Nations
(III) The future prospects of the world organization – Can the United Nations overcome the predicament of power politics in a unipolar order?
(IV) Conclusion: Catharsis and transformation?
© by I.P.O., 2005. All rights reserved.
A print version of this paper without footnotes
has been published in the Law Review, Polytechnic
University of the Philippines, College of Law, May 2005, pp. 49-65.
In order to make an assessment of the future prospects of the United Nations Organization, we first have to take a look into the past – at the world organization’s history, but also at international organization as it existed prior to the foundation of the United Nations in 1945.
The relations between states before World War II were characterized by the traumatic experience of the sudden collapse of the old European order of nation-states in the conflagration of the first “world war.” However, the League of Nations, created after that war, could not hold international power politics in check; its Covenant, part of the Peace Treaty of Versailles, did not effectively tame nation-state sovereignty.
The basic challenge before the League consisted in how to integrate the sovereignty of the nation-state into a cooperative international system that is based on the rule of law binding upon all. One of the main achievements of the post-World War I order, in terms of the rule of law, was undoubtedly the ban on the use of force in relations between states through the Kellogg-Briand Pact of 1928. This treaty was concluded at the initiative of the United States<![if !supportFootnotes]><![endif]> – although this country had never acceded to the League of Nations.
At this point in time, efforts were even made towards the establishment of an international criminal court that, for the first time in history, would have determined individual criminal responsibility outside the confines of national sovereignty; but the respective draft convention, adopted by the Assembly of the League of Nations in 1937,<![if !supportFootnotes]><![endif]> never entered into force.<![if !supportFootnotes]><![endif]>
In one fundamental respect, the Covenant of the League was more in conformity with the principle of sovereign equality of states than that of the United Nations: no veto privilege was granted to selected countries (the “great powers”) – a fact which, as argued by Zbigniew Brzezinski,<![if !supportFootnotes]><![endif]> may have been the decisive reason why the United States has never joined that organization. Because of U.S. obstinacy, the League of Nations was never fully representative of the “international community” and finally started to disintegrate prior to and in the course of World War II.
Two decades after the foundation of the League, the world has undergone another traumatic experience. The total collapse of international order as a result of the events between 1939 and 1945 made painfully obvious that the international community at the time had not learned the lessons from World War I. The fragility of a consensus-based order between sovereign states – such as the one represented by the League of Nations – had been exposed.
In view of this experience, efforts were made, towards the end of World War II, to make international organization less fragile. According to Chapter VII of the Charter of the United Nations Organization, the “Security Council” was given special enforcement powers so as to make the ban on the use of force in relations between states effective – if need be. This was a decisive step beyond the essentially recommendatory powers of the earlier “Council” of the League of Nations.
However, this special authority, which was meant to give credibility to the world organization and make the international rule of law sustainable, came at a very high price. A special voting privilege was written into Art. 27 of the Charter in favour of the sponsors of the United Nations, the victorious powers of World War II.<![if !supportFootnotes]><![endif]> The veto right of the five permanent members of the Security Council may indeed be considered the “birth defect” of the organization; it has become its major predicament in the unipolar power constellation of today. This departure from the principle of sovereign equality of states (one of the basic maxims of the UN system, enshrined in Art. 2 of the Charter) did not only cause a basic normative inconsistency which somewhat delegitimizes the Charter’s system of norms; the veto provision introduced a kind of “victor’s rule” into the Charter of an organization that was supposed to “develop friendly relations among states based on respect for the principle of equal rights” (Art. 1 ).
Through the Security Council as supreme executive organ it has become possible for the United Nations Organization to use the influence and military capabilities of the so-called “great powers” to enforce the law vis-à-vis the rest of the world – but at the price of total “immunity” granted to the five permanent members. Because of the provisions of Art. 27, the law can never be enforced against those countries if they choose to violate that very law. Thus, the self-appointed guarantors of the international rule of law have put themselves above the law. The latest example, and one of the most drastic, has been the invasion and occupation of Iraq in 2003 by the United States and her allies.<![if !supportFootnotes]><![endif]>
The veto privilege accorded to the most powerful member states has, in fact, destabilized the international system more than it has helped to uphold the rule of law, and it has profoundly demoralized all those who believe in the UN Charter’s pronouncement of a just and peaceful world order. In light of these realities of power politics, the Preamble’s heading “We the peoples of the United Nations” has proven to be rather fictitious.
It is a historical fact that, except in very few cases, the United Nations Organization has not been able to preserve the peace, particularly in conflicts between member states in which interests of permanent members and/or their allies were involved. If there has been no world war since 1945, this was more due to “mutual deterrence” between the two post-war superpowers than to any other factor – and definitely not due to the United Nations’ system of collective security.
Since the end of the Cold War in the course of the events of 1989, the world organization has been faced with new challenges that basically relate to the drive for power by the country that emerged as global hegemon from the power struggle of the “East-West conflict” (or Cold War). Since the beginning of the 1990s, we have witnessed a gradual erosion of the system of collective security as enshrined in Chapter VII of the UN Charter. Since the events of 2003, this system has almost crumbled.
The bipolar world order has given way to a unipolar system. The checks and balances among the five permanent members, meant to be ensured by the veto provision of Art. 27, do not work any longer in a unipolar environment. While, during the period of the Cold War, one power was holding the other powers in check by virtue of the veto right, that privilege has become an “empty promise” in an international system where there exists only one superpower. The international power balance, in the meaning of de Vattel’s classical definition – as “a state of affairs such that no one power is in a position where it is preponderant and can lay down the law to others”<![if !supportFootnotes]><![endif]> – has suddenly vanished. A new kind of imperial order, accompanied by signs of global anarchy, is evolving.
Since the tragic events of September 11, 2001, the implications of this state of affairs for the international system have become more and more obvious. The consequences are far-reaching and seem to imply a major paradigm shift in international relations:
– With increasing frequency, the United States has acted unilaterally to defend its national interests and security.
– For that purpose, the U.S. has invoked Art. 51 of the UN Charter (enshrining the right of self-defense) in an extensive and arbitrary manner.
– Furthermore, the U.S. more and more appears to reserve to itself the right not only to define U.S. national interests and security,<![if !supportFootnotes]><![endif]> but also to determine a threat to international security and to make such determination unilaterally, i.e. outside the framework of the Security Council. However, according to Art. 39 of the Charter, determining threats to international peace is the prerogative of the Council.
The “global war on terror” has become the unifying formula of this effective departure from the post-war system of collective security. The examples of this newly acquired unilateral attitude are numerous:
– The Afghanistan war of 2001ff has been conducted with only a vague authorization of the Security Council. The actual conduct of the war has been solely decided by the United States.<![if !supportFootnotes]><![endif]> As regards the reference to vague and often ambiguous formulations in Security Council resolutions, the justification of this war campaign seems to be rather similar to that of the use of force against Iraq in 1991<![if !supportFootnotes]><![endif]> by the so-called Gulf war coalition under the leadership of the United States.<![if !supportFootnotes]><![endif]>
– The Iraq war of 2003 was waged without any authorization by the Security Council whatsoever<![if !supportFootnotes]><![endif]> (in a fashion similar to the Kosovo war led by a NATO alliance in 1999).
In both instances (of the Afghanistan as well as the Iraq war), the United States claimed that it was acting in the exercise of the right of self-defense as enshrined in the UN Charter. However, to fit all occasions, this right has been interpreted by the U.S. in such a general and arbitrary manner that it has become almost meaningless in terms of international law. The United States has construed the notion in such a way as to include the right to wage preventive war, i.e. to initiate a war without an attack having been launched by the supposed adversary. The doctrine of preventive war, proclaimed through the “National Security Strategy of the United States” (June 2002) and further expounded in the “National Strategy to Combat Weapons of Mass Destruction” (December 2002), has totally undermined the system of collective security that was upheld – and supposed to be guaranteed – by the United Nations Organization during the post-World War II period up to the end of the bipolar system.
Indeed, the notion of preventive war is alien to the system of modern international law where the use of force, except in cases of an immediate attack, is regulated (a) in the framework of collective action and (b) by the requirement of reacting to a breach of or threat to the peace in so far as it has been determined by the Security Council (Art. 39). In fact, resort to “preventive war” is tantamount to the reintroduction of the earlier abrogated jus ad bellum; such a move means the return to 19th century imperial rule. Broadening, or redefining, self-defense in the sense of prevention (including large-scale preemptive strikes) constitutes an element of international anarchy that jeopardizes everything that has been put in place to preserve the international rule of law since the end of World War II. Such a move is in no way compatible with the rationale of collective security.
What makes this situation even worse is that, because of the veto privilege of the five permanent members, the United Nations Organization is confined to the role of impotent bystander in the most important matters of international security:
(a) Because of the veto, the organization cannot act as guarantor of international peace and security whenever the interests of the United States or other permanent members (in case they feel strong enough to resort to their veto power) dictate otherwise.
(b) The world organization cannot take any enforcement action against the United States whenever the latter has chosen to take the law into its own hands (as has happened in the case of the war against Iraq in 2003). At the same time, the U.S., because of the preponderance of its power over that of the other permanent members, will rarely be confronted with a situation in which it may prefer not to make use of its veto privilege to advance its own interests.
In this constellation of power politics in a unipolar context – i. e. in the absence of a balance of power –, the United Nations is left with an unenviable choice between:
(a) endorsing, post factum, a policy that has been shaped and implemented outside the multilateral framework of the UN, i.e. in violation of international legality (in the case of the Iraq war of 2003 and the ongoing occupation of that country, Security Council resolutions have indeed been used as “legitimation tools”<![if !supportFootnotes]><![endif]>); and
(b) simply becoming obsolete – or being declared obsolete by the major global player – because of its being unable to determine the course of events on its own or prevent the major player from taking action wherever and whenever that state deems such action necessary or desirable.
The assertion of a unilateral foreign policy by the United States has been a major challenge to the multilateral system of international law based on the notion of collective security. Indeed, this new version of “Souveräntitätsanarchie” [anarchy among sovereign states resulting from the unrestricted exercise of sovereignty by those very states] has become the most serious challenge to that system since the organization’s foundation in 1945.
The United Nations is confronted with a fate similar to the one suffered by the League of Nations in the course of the events prior and during World War II, namely of:
– being condemned to the role of spectator, or “notary public,” of events determined in a unilateral framework (whether that may be related to action by the global hegemon alone or through a so-called “coalition of the willing”);
– losing legitimacy vis-à-vis the vast majority of member states; and
– disintegrating as final consequence of the organization having become obsolete.
It is against this background that the question “quo vadis, United Nations?” must be posed.
How can the above-described predicament be overcome? How can the United Nations Organization stem the tide of global anarchy that may result from the increasing number of unilateral acts by the United States?
The examples of the global hegemon’s unilateral policies abound: the war against Yugoslavia in 1999; the war against Iraq in 2003; the actions openly challenging the authority of the International Criminal Court;<![if !supportFootnotes]><![endif]> the promulgation of the doctrine putting U.S. sovereignty not only above the sovereignty of each and every other state (individually), but above international law as such (collectively): all these steps document the U.S. neglect of multilateral procedures.<![if !supportFootnotes]><![endif]> One of the latest documents evidencing that trend is the so-called “Constitutional Preservation Resolution” introduced in the U.S. House of Representatives on 18 November 2003 (H.RES. 446).<![if !supportFootnotes]><![endif]> Although this legislation has not (yet) been adopted, the draft text is indicative of the prevailing unilateralist trend in the United States.
In order to stem the tide of unilateralism and avert its further marginalization, the United Nations Organization must vigorously address the issue of institutional reform. One of the most essential measures will be that of a democratization of the decision-making processes inside the UN; steps at democratizing the United Nations should include, among others:<![if !supportFootnotes]><![endif]>
– a genuine reform of the Security Council on the basis of the principle of sovereign equality, a measure which will require the abolishing of the veto privilege of the permanent members;
– the introduction of a new concept of permanent membership in the Security Council on a regional basis so as to achieve a better balanced sharing of power and responsibility (in sharp distinction from the present privileged position of the Western region and the industrialized states);
– the modification of the Charter’s provisions on the relationship between the main organs of the UN with a view to establishing a genuine separation of powers, one that is fundamentally different from the present imbalance which favours the Security Council, enabling it to act not only as executive, but also as legislative power (in some instances, the Council has even arrogated judicial functions);<![if !supportFootnotes]><![endif]>
– creating a parliamentary chamber of the United Nations (on the basis of balanced regional representation) and redefining the present General Assembly, which is an assembly of state representatives, not people’s deputies, as second chamber (“Senate”);
– establishing a system of global accountability through effective measures of international criminal justice in direct connection with, and not apart from, the United Nations system.
In its actual constitutional structure, the United Nations represents the power balance of 1945, favouring, by now undeservedly, the victors of the Second World War, whereas the global constellation since the end of the Cold War has been characterized by the absence of a balance of power (which requires two or more powers holding each other in check). This juxtaposition threatens the viability of the UN system as such. The present global unipolarity is simply incompatible with the multipolar philosophy of the UN Charter – which means, in a certain sense, that the world organization is “out of tune” with the realities of international relations.
The basic dilemma faced by the United Nations in connection with the reform efforts outlined here lies in what I call the “veto trap,” namely a procedural provision according to which the UN Charter cannot be amended unless the five permanent members agree (Art. 108). Thus, the world organization cannot free itself from the burdens of the post-World War II situation.
In this constellation, the organization risks falling victim to the virtually unrestrained drive for global hegemony by the only superpower. In actual terms, that country’s hegemonial strategies can neither be checked legally (because of the Security Council veto enjoyed by that very power) nor can it be constrained politically or militarily (because of the preponderance of that state’s power over that of each and every other state and existing regional groups of states).
In this scenario, global anarchy is looming over the horizon – with the United Nations as registrar of events, diagnosing the structural problems it cannot solve by its own force. As stated previously, the disintegration of the frail system of collective security has already begun with the Iraq war of 2003 if not earlier.<![if !supportFootnotes]><![endif]>
If the United Nations fails in the efforts to reform itself (which is very likely because of the “veto trap”) and if it is gradually rendered obsolete as international actor because it cannot stem the tide of emerging global anarchy, the world organization’s raison d’être will and must be questioned by those who believe in the goals of a just and stable world order. In the context described here, anarchy means the rule of force prevailing over the rule of law, and, more specifically, the unrivalled rule of the only superpower, rendering the Security Council’s rudimentary, veto-related system of checks and balances ineffective.
In this respect, the United States’ open challenge to the authority of the International Criminal Court (ICC) is an ominous sign of things to come. The “imposition” upon “friends” and “allies” of bilateral treaties aimed at circumventing the ICC’s jurisdiction in favour of U.S. personnel, and the U.S. efforts (which were successful in 2002 and 2003, though not in 2004)<![if !supportFootnotes]><![endif]> at putting pressure on the Security Council – so that it would grant to US personnel and officials immunity from prosecution by the ICC (in a highly problematic use of the deferral clause of Art. 16 of the ICC Statute) – have made this strategy more than obvious.
In recent years, and in particular since the Gulf crisis of 1990, numerous resolutions have been adopted by the Security Council under U.S. pressure. With increasing frequency, the United States has presented itself as a force which even permanent members do not dare to challenge in the chambers of the Security Council. In the changing global environment brought about by the end of the Cold War, also the former “great” great powers – although still enjoying the veto privilege – may cave in to U.S. pressure unless supreme strategic interests of the respective power are at stake. This constellation explains why, since 1990, so many Chapter VII resolutions have been adopted by the Security Council on Iraq<![if !supportFootnotes]><![endif]> (while not a single one has been adopted on Israel because of the threat of a U.S. veto). Resolution 1546 of 8 June 2004 is just the latest example documenting the absence of a balance of power in the Security Council.
In view of this state of affairs, one may speculate about the course of events triggered by the above-described developments and their implications for the very future of the world organization. A possible scenario might contain the following elements:
(1) The United Nations will increasingly be instrumentalized to provide legitimacy to the most powerful international actor for measures which have been initiated outside the UN’s legal framework. The often used euphemism of “humanitarian intervention” documents the ideological framework within which this new role is assigned to the UN.<![if !supportFootnotes]><![endif]>
(2) The United Nations will gradually be circumvented in all matters pertaining to the strategic interests of the United States, particularly as regards the so-called “global war on terror.” (So far, the Security Council’s Counter-Terrorism Committee<![if !supportFootnotes]><![endif]> has not been able to play an independent role.)<![if !supportFootnotes]><![endif]>
(3) The centrifugal tendencies, steering the international community away from the centralized system of collective security as represented by the Security Council, will be more and more strengthened as a result of the faits accomplis created by the most powerful member state.
(4) In the absence of viable alternatives, countries in the politically “underrepresented” regions will increasingly orient themselves towards regional arrangements to accommodate their security needs and vital interests.
(5) The question of establishing a new framework of international organization outside the system of norms of the United Nations will not any more be put under a taboo.
(6) In the context of evolving global anarchy, with the UN being unable to enforce the law in relations between states, the international system will again become one of self-help (such as the one that prevailed up to the establishment of the League of Nations after World War I).
(7) National sovereignty, defined according to the traditional conception of the nation-state, will enjoy a comeback and the universality of the United Nations Organization will be put in question.
(8) The “global war on terror” will prove to be an intractable conflict situation, threatening the stability of the entire international system – in legal, political, social, as well as economic terms.<![if !supportFootnotes]><![endif]> With the sidelining and delegitimization of the United Nations Organization, there will be no universally accepted framework for the conduct of this war.
(9) The only superpower will increasingly become desperate, gradually realizing that this war on terror – a supposedly new form of war – cannot be won,<![if !supportFootnotes]><![endif]> and even less so with the exclusive unilateral approach favoured by that country.
(10) Out of the “frustrations” of the only superpower, resulting from its unilateral actions along many self-declared confrontation lines, the world organization may become burdened with goals it cannot manage in its present statutory framework and in the absence of an international balance of power. How, for instance, should the UN ever be able to establish the rule of law, including a viable democratic system, in occupied Iraq? This is an exemplary case of a “mission impossible” which the global hegemon intends to assign to the UN after having realized that bearing the consequences of an illegal invasion and occupation of a country, in contravention of the UN Charter, will be too costly for itself alone.
(11) The false expectations set in the UN – hopes that cannot be fulfilled without the statutory reform outlined earlier – may lead to a further disillusionment in regard to the role of the United Nations Organization as universal intergovernmental entity and bring about the organization’s ultimate disintegration or collapse.
In whichever way the crisis scenario will finally evolve – we have only hinted at possible tendencies and developments –, one sign of hope, as concerns the original mission of the UN and the preservation of the integrity of its efforts, lies exactly in the excesses of superpower rule in a unipolar environment such as those referred to in our list. In view of how events have unfolded particularly since the Iraq war of 2003, the ancient dictum “ex tenebris lux” may be used to describe this dim hope:
Even in the absence of a balance of power there exists the prospect of the only superpower realizing the ultimate futility of its global “crusade” for democracy and human rights, which, in reality, has been one for hegemony. As a result of what earlier has been predicted as “imperial overstretch,”<![if !supportFootnotes]><![endif]> the U.S. may have to come to grips with the unpleasant truth that the unilaterally declared “global war on terror,” including the invasion and occupation of Iraq,<![if !supportFootnotes]><![endif]> has become an unbearable burden on U.S. resources. Thus, out of properly understood self-interest and sheer exhaustion (and not because of an idealistic commitment to collective action among states perceived as equals), the global hegemon may eventually come to accept a multilateral structure such as the United Nations.
Before this insight may take hold, however, the world organization will undergo a profound crisis as to its identity and raison d’être in an essentially anarchic environment which it cannot transform into a state of law all by its own. This international political vacuum will affect the entire system of intergovernmental relations.
According to the dialectical relationship between power and law (which we described elsewhere with a view to UN reform),<![if !supportFootnotes]><![endif]> the chance of the United Nations Organization regaining its universal status and global legitimacy, if it ever materializes, may lie in the reemergence of an international power balance, albeit not the bipolar one that prevailed until the end of the Cold War; this event may be triggered by the effective failure of the only superpower in its self-proclaimed global war on terror<![if !supportFootnotes]><![endif]> and/or in other major aspects of its foreign policy agenda such as that of unilaterally establishing, and guaranteeing, peace in the Middle East. The realization of this predicament on the part of the dominant power – i.e. the awareness that peace cannot be won in this era of globality in an exclusively unilateral framework – may become the defining moment of the reappearance of a new multilateral order.
Should, for whatever reasons, this crisis scenario – in the sense of a catharsis – not play out, the world organization may well suffer a fate similar to that of the League of Nations, and a new form of transnational organization, with a more consistent set of norms, may emerge after major conflagration has occurred due to the ineffectiveness of the present structure in its basic mission of preserving peace. It is obvious, from the foregoing, that the United Nations Organization as such is not to be blamed for such a catastrophic development.
In almost every epoch, international organization has been the result of major upheaval and its actual form has been determined by the outcome of the preceding conflict or conflicts, each having created a unique new power balance. This was true with the Treaty of Westphalia of 1648, the Final Act of the Congress of Vienna and the Holy Alliance Treaty of 1815, the Covenant of the League of Nations of 1919 (part of the Peace Treaty of Versailles) as with the United Nations Charter of 1945.
Because of the dynamics of international power politics in a unilateral environment, the prospects of a collapse of the actual system of international law, represented by the United Nations Organization, seem to be more real than the chances of internal systemic transformation. The chances of political idealism (with its vision of a global order based on the sovereign equality of nations) winning over political realism (with emphasis on the unrestricted exercise of national sovereignty in a system of self-help) are rather dim.
The “international community,” as the UN member states are euphemistically referred to nowadays, is more or less hostage of the power politics of the most influential global player. Some form of a balance of power will have to emerge before this “community” can undertake genuine transnational reform. Realistically, a unipolar system will only give way to a power balance against the will of the hegemonial power (whether in the course of armed conflict or as a result of a reassessment, imposed by unforeseen changes of the strategic environment, of that power’s interests).
In view of the historically proven facts of international power politics, the future of the United Nations may not lie in gradual systemic reform (no dominant power has ever wilfully given up its privileged position), but in giving way to a new transnational structure – as a result of global disorder taking hold for a considerable period of time. Such disorder may ensue, as explained earlier, from the unwinnable “war on terror” upon which the dominating power has embarked. This situation may finally convince the major international actor that its very interests, first and foremost that of self-preservation, are better served in an international system that is based on a balance of power.
In such a context, an entirely new framework of norms for the relations between sovereign states will have to be established, one that will be compatible with the imperatives of the sovereign equality of states and guarantee equal rights for all peoples. This will imply a major departure from the post-World War II doctrine that has postulated the special responsibility of only five countries (including the United States) for the maintenance of international peace and security.<![if !supportFootnotes]><![endif]>
However, in the absence of a balance of power, any such development remains highly elusive and the law of force may well prevail over the force of law, precluding not only United Nations reform, but the very emergence of a new kind of international organization that would be based on the principles of sovereign equality in normative and multipolarity in political terms.
Undoubtedly, with the collapse of the bipolar balance of power in the course of the events of 1989, a major paradigm shift has occurred in international relations. It remains to be seen whether another such paradigm shift – away from the present unipolar order’s system of self-help – towards a multipolar order will take hold as a result of an eventual failure of the only superpower’s global strategy. Only such a development will pave the way for a peaceful reshaping of the international system, enabling the United Nations Organization to reform itself according to its professed goals of equality and peaceful co-existence.
<![if !supportFootnotes]> <![endif]> Treaty between the United States and other Powers providing for the renunciation of war as an instrument of national policy signed at Paris, 27 August 1928.
<![if !supportFootnotes]> <![endif]> Convention for the Creation of an International Criminal Court, 16 November 1937.
<![if !supportFootnotes]> <![endif]> For details see Hans Koechler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna / New York: Springer, 2003, pp. 62f.
<![if !supportFootnotes]> <![endif]> Zbigniew Brzezinski, The Choice. Global Domination or Global Leadership. New York, NY: Basic Books, 2004, p. 8.
<![if !supportFootnotes]> <![endif]> For details see the author’s analysis: The Voting Procedure in the United Nations Security Council. Examining a Normative Contradiction in the UN Charter and its Consequences on International Relations. Vienna: International Progress Organization, 1991.
<![if !supportFootnotes]> <![endif]> See Memorandum by the President of the International Progress Organization, Dr. Hans Koechler, on the legal implications of the 2003 war against and subsequent occupation of Iraq and requirements for the establishment of a legitimate constitutional system in Iraq, including measures of criminal justice. Vienna, 12 August 2003/P/RE/18270.
<![if !supportFootnotes]> <![endif]> Emer de Vattel, Droit des gens, ou principes de la loi naturelle, appliqués à la conduite et aux affaires des Nations et des souverains , book III, chapter 2, section 47 : "une disposition des choses au moyen de laquelle aucune puissance ne se trouve en état de prédominer absolument et de faire la loi aux autres …"
<![if !supportFootnotes]> <![endif]> See The National Security Strategy of the United States of America. September 2002. Washington, DC: The White House, 2002.
<![if !supportFootnotes]> <![endif]> Cf. Ninan Koshy’s question „How did the war on terror become a war against Afghanistan?“ in his presentation The War on Terror. Making the World Safer for Globalization. Christian Conference of Asia, 20 February 2002, http://daga.dhs.org/cca.
<![if !supportFootnotes]> <![endif]> Resolution 1373 (2001) of 28 September 2001, adopted a few days before the U.S. attack on Afghanistan, decides, on the basis of Chapter VII of the Charter, that States shall “[t]ake the necessary steps to prevent the commission of terrorist acts …” (para. 2 [b]). Nowhere does the resolution refer to the situation in Afghanistan. Similarly, resolution 678 (1990) of 29 November 1990 uses the term “all necessary means” in regard to measures for enforcing previous Security Council resolutions urging Iraq to withdraw from Kuwait. The actual conduct of that war, as the one in Afghanistan, was entirely decided by the U.S. – with UN resolutions serving as tools of legitimation.
<![if !supportFootnotes]> <![endif]> For details see Hans Koechler (ed.), The Iraq Crisis and the United Nations. Power Politics vs. the International Rule of Law. Vienna: International Progress Organization, 2004.
<![if !supportFootnotes]> <![endif]> See Declaration of the International Progress Organization on the War of Aggression against Iraq. Vienna, 24 March 2003/P/RE/18117c.
<![if !supportFootnotes]> <![endif]> This is particularly evidenced in Security Council resolution 1483 (2003) of 22 May 2003, “recognizing,” post factum, the authorities and obligations of the “occupying powers” in Iraq, and even more so in resolution 1546 (2004) of 8 June 2004.
<![if !supportFootnotes]> <![endif]> For details see the author’s book Global Justice or Global Revenge?, esp. pp. 240ff.
<![if !supportFootnotes]> <![endif]> On the first enunciation of a unilateralist doctrine in recent U.S. history see F. A. Freiherr von der Heydte, “The Thornburgh Doctrine: The End of International Law?” in: Executive Intelligence Review, 25 May 1990, pp. 62-66.
<![if !supportFootnotes]> <![endif]> “Expressing the sense of the House of Representatives that the Supreme Court should base its decisions on the Constitution and the Laws of the US, and not on the law of any foreign country or any international law or agreement not made under the authority of the United States.” (Emphasis by the author.) The legislation was introduced by Kansas Congressman Jim Ryun.
<![if !supportFootnotes]> <![endif]> For details see the proposals made by the Second International Conference On A More Democratic United Nations (CAMDUN-2), Vienna, 17-19 September 1991: “Concluding Statement,” in: Hans Koechler (ed.), The United Nations and the New World Order. Keynote addresses from the Second International Conference On A More Democratic United Nations. Vienna: International Progress Organization, 1992, pp. 49-52.
<![if !supportFootnotes]> <![endif]> See the case of the so-called ad hoc tribunals on the former Yugoslavia and Rwanda. Cf. the author’s Memorandum on the Indictment of the Federal President of Yugoslavia, the President of the Republic of Serbia and Other Officials of Yugoslavia by the “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia.“ Caracas, 27 May 1999.
<![if !supportFootnotes]> <![endif]> One might refer here to the Yugoslavia (Kosovo) war of 1999 as first instance, in the post-Cold War era, of unilateral action in defiance of the multilateral security system of the UN.
<![if !supportFootnotes]> <![endif]> The Security Council has not renewed the exemption of U.S. personnel from ICC jurisdiction for a third consecutive year (that would have started on 1 July 2004). This policy reversal was brought about by the resistance of the veto powers Russia and France, and it was mainly related to the misgivings about the U.S. invasion and occupation of Iraq, including serious war crimes charges in connection with the Abu Ghraib prison scandal.
<![if !supportFootnotes]> <![endif]> Between 2 August 1990 and 24 November 2003 the Security Council adopted 70 resolutions related to Iraq (most having been explicitly based on Chapter VII). This number does not include the resolutions dealing with the Iran-Iraq situation. For details see Hans Koechler (ed.), The Iraq Crisis and the United Nations, pp. 79ff.
<![if !supportFootnotes]> <![endif]> For a detailed analysis of the legal problems of humanitarian intervention see the author’s treatise: The Concept of Humanitarian Intervention in the Context of Modern Power Politics. Is the Revival of the Doctrine of “Just War” Compatible with the International Rule of Law? Vienna: International Progress Organization, 2001.
<![if !supportFootnotes]> <![endif]> This Committee has been established pursuant to resolution 1373 (2001).
<![if !supportFootnotes]> <![endif]> On the United Nations’ role in combating international terrorism see the author’s analysis: “The United Nations, the international rule of law and terrorism,” in: Global Justice or Global Revenge?, pp. 321-349.
<![if !supportFootnotes]> <![endif]> See the well-documented analysis by a senior U.S. intelligence official: Anonymous, Imperial Hubris. Why the West Is Losing the War on Terror. Washington, D.C.: Brassey’s, Inc., 2004.
<![if !supportFootnotes]> <![endif]> On the futile nature of this kind of war see Jeffrey Record, Bounding the Global War on Terrorism. Strategic Studies Institute, U.S. Army War College. Carlisle, PA, December 2003.
<![if !supportFootnotes]> <![endif]> Paul Kennedy, The Rise and Fall of the Great Powers. Economic Change and Military Conflict from 1500 to 2000. New York, NY: Random House, 1987.
<![if !supportFootnotes]> <![endif]> See, for instance, Roger Burbach, Imperial Overstretch in Iraq. Centre for Research on Globalisation, 5 May 2003, http://globalresearch.ca/articles/BUR305A.html.
<![if !supportFootnotes]> <![endif]> The Dialectic of Power and Law: The United Nations and the Future of World Order. Lecture delivered at the International Roundtable “The United Nations and International Power Politics: The Future of World Order,” organized by the International Progress Organization in co-operation with the International Human Rights Association of American Minorities. East-West University, Chicago, Ill., 5 June 2004.
<![if !supportFootnotes]> <![endif]> On the increasing resistance against U.S. hegemony in connection with the „war on terror“ see the brilliant analysis by Omar Barghouti, Wither the Empire: The Rise of Global Resistance. 29 July 2004, electronicIraq.net.
<![if !supportFootnotes]> <![endif]> The major elements of such a reorganization of the international order have been outlined by the author: The United Nations and International Democracy. The Quest for UN Reform. Vienna: International Progress Organization, 1997.