The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (9 page)

The issues surrounding authorization to use force raise the more general question of what kind of legitimacy or authority the Security Council wields in international society. This question has numerous dimensions, two principal ones being its role as a collective legitimizer for the deployment and use of armed force, and whether changes in its membership could add to its legitimacy. These are considered in turn.

One of the major functions of the Security Council in international society is its role as a ‘collective legitimizer’ for the use of force by member states.
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While this collective legitimization is not the exclusive preserve of the UN – other intergovernmental organizations (particularly regional ones) can also play this role – the UN has been the main focus of states’ multilateral efforts to win approval for their policies. In some cases the Council’s endorsement can make a direct material difference, by enabling those leading a military action to obtain troops and financial support from other members of international society. More commonly, however, the UN ‘stamp’ of approval has a more intangible benefit, by enhancing both the lawfulness and the political acceptability of the proposed military campaign. The so-called Just War tradition, which outlines a series of precautionary principles that help to determine the justifiability of any use of force, gives a prominent place to the notion of ‘proper authority’.
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In the present era, the UN Security Council is widely seen as constituting that ‘proper authority’.
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As a result, states have invested significant diplomatic capital in garnering Council authorization. Indeed, as the astute UN observer Inis Claude had argued, ‘the value of acts of legitimization by the United Nations has been established by the intense demand for them.’
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Several of the cases examined in this book illustrate this trend.

The Council’s status as ‘proper authority’ has not gone unchallenged. There are two main types of criticism. The first accuses the Council of exceeding its authority. For example, in the eyes of some, the UN’s wider interpretation of what constitutes a threat to peace and security since the end of the Cold War – involving it in operations to address intra-state conflict, the possession of weapons of mass destruction, and humanitarian crises – has encouraged excessive interventionism.
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Others are critical of what they see as the Council’s attempts to act as a legislator, initially through its creation of ad hoc war crimes tribunals in the 1990s and subsequently with its resolutions on counter-terrorism.
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A second strand of argument suggests that the Council’s authority is being eroded because it is doing too little. The failure of the UN to mount a sufficient presence to deter genocide in Rwanda, and its inability to prevent the massacre of civilians in the ‘safe area’ of Srebrenica in Bosnia, have led critics to investigate alternative mechanisms and institutions for ensuring peace and security.
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According to this view, even in those situations of humanitarian crisis where the Council
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authorized interventions, its role has been too limited. It is often powerful individual states that ultimately establish the parameters of the mission and control events on the ground.
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This criticism of the Council as reflecting the interests of certain major powers overlaps with the widespread criticism of the nuclear non-proliferation regime. The set of arrangements centred on the 1968 Non-Proliferation Treaty (NPT) of Nuclear Weapons is not itself a creation of the Security Council, having been negotiated by states. However, it has close associations with the Council, which has a number of roles in assisting its implementation. The view has gained currency that the NPT involved a commitment by the existing nuclear powers as recognized in the treaty (i.e. the P5) to complete nuclear disarmament – a position which has the predictable political consequence that the regime loses legitimacy if this part of the supposed deal is not fulfilled. Joachim Krause has strongly criticized this particular interpretation of the nature of the NPT deal, suggesting that it is historically questionable and disastrous in its
consequences. He concludes: ‘One might even argue that international order – defined as the rule of non-use of force – is possible only when a small number of responsible states possess nuclear weapons. The issue is, however, how to keep problematic actors from getting control of nuclear weapons. There is no golden key available to solve this dilemma, but the 1968 NPT was at least a very successful instrument in striking such a deal.’
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As he notes, the fact that certain other states beyond the P5 have developed nuclear weapons raises many questions about the legitimacy and adequacy of the non-proliferation regime. The regime has many achievements to its credit: many states have stepped back from acquisition of nuclear weapons. It is not irredeemably lost, but its legitimacy and efficacy are under serious challenge.

The various criticisms of the Council’s role as a proper authority for managing the possession and use of armed force reflect the awkward fact that powerful states, if they are willing to act on behalf of international order, need some recognized latitude in which to do so. This was a problem in earlier eras, when what was at issue was the rights and duties of ‘the great powers’. It continues in the UN era. To a limited extent the UN Charter and the international order that has evolved since 1945 recognize that certain states have a special degree of latitude. Yet at numerous points – over authorizations to major powers to act on the UN’s behalf, the inevitable discretion used in decisions about whether and how to intervene, the maintenance of a nuclear weapons status while denying it to others, and the need to involve more powers than the current P5 in the management of international order – the legitimacy of the present order is continuously in question.

A further challenge to the idea of the Council as legitimizer has arisen repeatedly in the post-Cold War period. Particularly in wars involving insurgents or non-state parties, some belligerents have shown no regard for the UN in general or Security Council actions in particular: UN forces and personnel have been attacked or kidnapped with alarming frequency. The hope that the Council’s international legitimacy, and the strength of the powers represented on it, would translate into near-automatic compliance has evaporated. A consequence is that UN operations in internal conflicts have to pay at least as much attention to local sources of legitimacy as they do to that more distant source of legitimacy, the Council.

The problem of lack of legitimacy of certain Council-authorized actions is particularly clear in the case of international administrations, which by their nature involve a challenge to another fundamental norm – that power comes from below, with the people of a territory as the final arbiters of the political order. Even if their aim is to promote a democratic order within a state, international administrations such as those the UN Security Council has established or assisted in several post-conflict societies from Bosnia to East Timor lack basic elements of democratic
accountability. As David Harland has put it, ‘all international administration, however benign, is to some extent illegitimate.’
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Despite these challenges, it is clear that for many policy-makers the role of the Council remains pivotal. The International Commission on Intervention and State Sovereignty, which released its findings in December 2001, is illustrative of this position: ‘There is no better or more appropriate body than the United Nations Security Council to authorise military intervention for human protection purposes. The task is not to define alternatives to the Security Council as a source of authority, but to make the Council work better than it has.’
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This view was echoed by both the High-level Panel in 2004, and by the Secretary-General’s reform proposals of 2005. All of these statements reflect a desire to maintain the Council’s status within international society, and to avoid any further erosion of the ‘social capital’ it draws upon to encourage the cooperation of UN member states.
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Various theories of international relations offer different perspectives as to why states would attach such significance to the Council and its role in legitimizing armed force. One possibility is a functional argument. Though the Council is clearly imperfect, it is still (along with regional organizations) an important mechanism for avoiding unilateralism and the pursuit of naked self-interest: without such organizations, each state would simply define for itself what is just and unjust. States therefore invest in this ‘security management institution’ to coordinate their responses to security threats and capture the benefits of cooperation.
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A second explanation, offered by Ian Hurd, is more ideational: states believe that a regulated and more predictable international system is preferable to one dominated by lawlessness. In short, multilateralism is a ‘valued good’ in international society. Thus, even when states use the Council’s legitimacy for their own purposes, they in fact reaffirm its stature and add to its power.
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A third possibility, drawing on Realist theory, would explain the search for Security Council authorization using material or power-based factors. Powerful Western states simply coerce other members of international society to support action through the Council. Alternatively, those seeking to enhance their power (such as developing countries, which have traditionally had less weight in
international society, or countries whose influence may be declining) insist on working through the UN in order to constrain the actions of more powerful states.

These varying explanations suggest that the nature of the Council’s status in international society requires further elaboration. Three notions from political theory assist this task: political legitimacy, political authority, and authoritativeness. A body has political legitimacy when its decisions are justified by moral and other socially embedded beliefs about the end to which it exercises power, and about the processes through which its power is exercised.
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For an entity to have political authority, however, it must have more than legitimacy; it must also have ‘the right to be obeyed by those who are within the scope of its rules’.
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An entity is authoritative ‘if and only if the fact that it issues a rule can in itself constitute a compelling reason to comply with that rule’.
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Political authority therefore entails political legitimacy, but not vice versa. Authority involves a hierarchical relationship where both the one who commands and the one who obeys recognize, in Hannah Arendt’s words, ‘their predetermined stable place’.
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When these notions are applied to the Security Council, it is clear that the Council is not a political authority in the sense described by political theorists, but rather a body that is at best authoritative with respect to the specific issue of international peace and security. As International Relations theorists such as John Ruggie have shown, international regimes and institutions do not conform easily to a hierarchical model of superordinates and subordinates.
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The Council does not in practice command the automatic obedience of states, and is continuously engaged in a process of considering what measures the UN member states will be prepared to support. The Council remains a forum for interstate bargaining, where agreement is reached by national representatives directed by their governments.
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Moreover, although the Council does pass binding resolutions, it is often difficult in practice to generate a consensus among the five Permanent Members about the precise action to be taken. This results in ambiguous language, which in turn leaves room for varying interpretations by those affected by the resolutions. Without a centralized body to offer a definitive interpretation, it is often left to the UN Secretariat to endeavour to secure compliance with resolutions, without any further guidance from the Council for the implementation of a given mandate.

Although the Council might not exert political authority, it does possess legitimacy. In other words, member states of the UN often have other compelling reasons to comply with the Council’s resolutions. The first source of its legitimacy derives from the ends to which it exercises power, namely, to maintain peace and security and ‘save succeeding generations from the scourge of war’.
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While this can be a powerful source of compliance, it has been under strain given the security challenges of the post-Cold War period. Though the Security Council has enjoyed some success in addressing, and reducing the incidence of, interstate war, several chapters in this volume show that it has a more mixed record in providing security for individuals experiencing civil war or repression inside states.

A second source of legitimacy is more procedural: the notion that a body ‘has come into being and operates in accordance with generally accepted principles of right process’.
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In the case of the Council, those states which traditionally support multilateralism emphasize its operating principles of consent, participation, and collaboration, and argue that only the UN can produce policies that are in the collective interest, as opposed to the narrow interests of the most powerful. These procedural aspects of the Council’s legitimacy have been particularly important in situations which are morally contested, and which involve the clash between long-established international norms – for example, the principle of non-intervention and the commitment to address gross violations of human rights.
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Here, too, however, a number of factors have created a tension between the Council’s authoritative role as laid out in the Charter, and its legitimacy in the eyes of the members of international society: the slowness of Council decision-making; the under-representation of key regions on the Council; the fact that the P5 are shielded from intervention in their own states; the increased use of informal consultation by Council members;
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and the political nature of P5 vetoes.
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These issues have led to a variety of proposals for Security Council reform.