The Security Council and the Use of Force Post-Georgia War? Michael Glennon and ‘Desuetude’

by Kenneth Anderson

As events move, I fervently hope, to an end to fighting in Georgia, international law discussions of the war will inevitably return to perennial themes – the authority to use force, the role of the Security Council and the Charter, the rationales and precedents offered for and against each side’s use of force, and so on.  So let me introduce one of those perennial, yet unavoidable, discussions – the role of the Security Council in all of this.  

But I want to use this post to pose the question in a particular way, drawing on the work of Michael Glennon, and his argument that whatever the Charter might say, the international legal rule on the necessary role of the Security Council in the use of force, if it ever was a rule, is no longer a rule, having fallen into “desuetude.”  (See, e.g., Michael J. Glennon, How International Rules Die, 93 Georgetown Law Journal 939 (March 2005); Michael J. Glennon, Why the Security Council Failed, Foreign Affairs, May-June 2003, with responses from Luck, Slaughter, Hurd, July-August 2003; Michael J. Glennon, Idealism at the UN, Policy Review, February-March 2005; Michael J. Glennon, Limits of Law, Prerogatives of Power: Interventionism After Kosovo (Palgrave 2003).)  

Glennon points to the general history of the Security Council and the use of force over the whole period from the UN founding onwards, but particularly points to Kosovo and Iraq as defining moments in which the legal non-necessity of the Security Council in authorizing or prohibiting the use of force was put plainly on the table.  But in those cases, the core actor was the United States, accompanied in Iraq by Britain and a loose coalition of states, and in Kosovo by NATO as a cohesive unit.  Georgia is arguably an instance of Russia explicitly ratifying through its state practice the “desuetude” of the Charter rule on the Security Council’s role in the use of force.  

We have been talking, in various posts and in the comments, about the parallels and non-parallels of Kosovo and Iraq for the Georgia war.  I want to focus specifically on the role, or non-role, of the Security Council in authorizing or not-authorizing or not doing anything with respect to the use force in this crisis.  Arguably, what has occurred is a generalized acceptance through state practice that, Charter language notwithstanding, the role of the Security Council is, as a matter of law, precisely what realists have said it always was as a matter of politics:  a great power talking shop when it came to great power interests, and a body with the powers attributed to it by the Charter at most (and not necessarily then) only in cases of great power agreement or at least not large disagreement in the Security Council, usually in connection with policing messy places in the world outside the immediate interests of the great powers (e.g., Haiti or East Timor).  I take Glennon’s point to be that this condition, or something approximating it, is not merely the realist observation but the current legal condition.  One can, of course, construct legal rationales that take advantage of one or another feature of these various precedents in order to avoid Glennon’s general legal conclusion, but these rationales gradually look more and more ad hoc and at some point (arguably) lose their legal credibility.   

I myself find Glennon’s arguments highly persuasive.  But that is in large part because I share his general sense of international law being, as he puts it in one of these articles, mostly epiphenomenal on geopolitical realities.  Is Russia’s intervention in Georgia a further data point in support of Glennon’s view of the legal role of the Security Council and “desuetude”?  I’d say yes, emphatically.  But, also yes, I can plausibly be accused of an a priori commitment to finding the Security Council always to be legally less than what, for example, Anne-Marie Slaughter or Ian Hurd would think it is.  So let me put it to you, gentle OJ readers – what, if anything, does Russia’s intervention imply for the legal role of the Security Council?

(ps.  And on a completely separate, US domestic law topic, you might also enjoy Glennon’s most recent article, A Conveniently Unlawful War: Congress Didn’t Authorize the Fight We Are Now In, in the most recent Policy Review, August-September 2008.)

(pps.  Here is a classically realist, geopolitical analysis of where things stand as of August 12, 2008, from the analysts at Sratfor.

http://opiniojuris.org/2008/08/13/the-security-council-and-the-use-of-force-post-georgia-war-michael-glennon-and-desuetude/

5 Responses

  1. You, and Glennon, may be right, descriptively speaking, as to the legal impotence or irrelevance of the Security Council (symptomatic of international law being ‘mostly epiphenomenal on geopolitical realities’), but I do wonder what you think, normatively speaking, its role should be (and are Slaughter and Hurd making descriptive judgments or normative claims?). I suppose one thing I’m getting at is along the lines of Allen Buchanan’s argument that “Violations of fundamental rules of existing international law, such as the prohibition against preventive war and against any use of force that does not qualify as self-defense and lacks Security Council authorization, are irresponsible, unless they are accompanied by a sincere effort to construct superior international legal structures to replace those they damage or render obsolete.” [emphasis added]

  2. The US have in recent years returned to the politics of pure national interest and the politics of force, making international legal structures rather redundant. The US uses them largely as a tool to control national and international public opinion and not as a mechanism to control the unbridled use of power by states. In this conflict the US tasted the flavour of their own medicine and we are observing the beginning of the end of their global hegemony. First, the increase in ‘colourful’ pro-american revolutions such as the one in Georgia will end, because this conflict demonstrated that when it comes to action, the US will not always deliver. The US proved itself to be an unreliable partner and states and peoples in eastern Europe, Central Asia, the Far East and South America will undoubtedly re-evaluate their policies towards the US and Russia. Second, the US policy of double standards has been clearly demonstrated.”Russia has invaded a sovereign neighbouring state and threatens a democratic government elected by its people. Such an action is unacceptable in the 21st century,” said Mr Bush. I suppose, no further comments on double standards are necessary.
    Third, the US politics of regime change were illustrated in the Security Council. When Russia made it clear that it refuses to deal with Saakashvili, the US quickly interpreted it as an intention to change regime. This is, of course, a demonstration of its approach to leaders of states who oppose American policies. Russia, however, has always insisted on the politics of dialogue to solve problems, rather than force and regime change. Overall, the US is a big loser in this conflict and they are trying to salvage what they can from it, mainly, to isolate Russia from the international community, from G8, EU, NATO, etc. However, this might work to a certain extent, but not in Europe. Russia has the support of Italy, Germany, Greece, Turkey and many others. At the start of the conflict Europe sighed with relief when they realised that their refusal to accept Georgia into NATO was a right decision because otherwise they would have been legally obliged to enter the conflict and fight their chief supplier of gas and oil at a time when the EU economy is on the brink of recession and winter is not too far away. Russia’s actions would have been the same regardless of Georgia’s membership of NATO and it is almost certain that NATO would have done nothing, thus undermining its very existence. The EU is realising more and more that a partnership with Russia is just as important as partnership with the US if not more so. Europe will not want to isolate Russia, it will embrace it.

  3. Luck, Slaughter et al really get the better of this debate over the so-called demise of the UN Security Council, and when I say they get the better, I think that’s being incredibly charitable to the other side.

    The problem is that the Glennon thesis doesn’t even get off the ground because neither he nor Anderson are able to offer a credible narrative of the purposes of the UN and collective regime to hang their theses on. Instead, we hear echoes of the same old caricature of the U.N. as an incompetent world-policeman who is charged with the impossible standard of complete non-derogation and absence of conflict and simply fails again and again. But this is surely a fallacious approach to assessing the collective security regime. The reality of the U.N., as even a cursory examination of the history, geopolitical realities and travaux preparatoires reveals, is that the U.N. is not a world-policemen; the U.N.’s mandate is solely about preventing the scourge of multi-year world-wide war.

    Both writers have thus grossly misunderstood the vexatious nature of the SC as a flawed expression of utopianism, rather than what it really is: a supremely realist compromise, based on great power alliance. But instead of realising this, the writers use the misconception itself to punch holes in the strawman they have just set up – arguing that its flawed and unwieldy nature can be captured by a simple dichotomy between idealism/multilaterialism, on one hand, and credible formalism on the other. But this is clearly a false choice.

    Luck puts it rather succinctly in his response article:

    “Glennon fails to take account of the critical ways in which the two interact. The fact that power politics predominates does not mean that norms, values, and even legal rules are not also relevant in shaping both the ends to which the powerful give priority and the means by which they choose to pursue them. Power gives a state capacity, but these other factors help determine what the state will do with that capacity. It is hardly coincidental that both sides in the Security Council debate on Iraq sought to invoke legal as well as political symbolism. They recognized the pull that such claims, however cynical or superficial, have on both domestic and international constituencies.”

    To not understand and internalise this elementary truth of constructivism, even if you resist the broader pull of the constructivist narrative, is to indulge the poor mans realist fallacy. You cannot simply ignore the complex interrelationship between norms and values in shaping the horizons of legal discourse, which do delimit and affect state actors and decision makers, and dismiss the architecture as an irrelevant gloss when that same architecture is a fundamental part of the justification and decision-making process itself, even where it has apparently been abrogated.

    I would also object to the extremely narrow and parsimonious view of law used here, which relegates law to being some functionalist expression of power. I believe this is an unhelpful Schmittian view, which is seemingly becoming fetishised in American academia. I’ve never believed law is only law when it is rigidly enforced by a centralised hierarchical system – and I reject utterly that this is an inherent feature of law as law. As far as assessment of the UN goes I really don’t think it ought to be acceptable practice to consider only rare dramatic cases of derogation and simply ignore the routine compliance, even when it is difficult for the relevant state parties.

  4. Thanks Will: I found that interesting and helpful.

  5. I believe “Russian Student Moscow” declares victory too soon.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.