Syria and the Role of the Security Council

Last Friday, ASIL Insights published an article that I authored, “Legality of Intervention in Syria in Response to Chemical Weapon Attacks.” I followed it up yesterday was an expanded commentary at Lawfare, “Five Fundamental International Law Approaches to the Legality of a Syria Intervention.” A number of readers of the expanded Lawfare post queried me about remarks made near the end of that (lengthy) post concerning the role of the Security Council.

Insofar as the disagreements about Syria are serious ones among the great powers, and among permanent five members of the Security Council (I said in that post), the architecture of the Charter is deliberately designed to impose a standstill on action insofar as permanent, P-5 great powers see their interests as being seriously threatened. American officials have said, in effect, that it’s a flaw of the international order that the Security Council can become deadlocked on a vital issue such as Syria’s chemical weapons use.  From the standpoint of the institutional and historical design of the Security Council, that’s a feature, however, not a bug.  It’s a deliberate design feature because it aims at bringing matters to a deadlocked standstill where the risk is great power conflict that might conceivably lead to war among them.  No doubt that is not an issue here and now, but if the preservation of the norm against chemical weapon use is a pragmatic concern, it is also a pragmatic concern that the role of the Security Council not be undermined.  The Security Council “bypassed,” as the Russian foreign ministry spokesman said, in ways that might, over time, lead to serious conflicts among the great powers – including those great powers that are not today permanent members of the Security Council.

I do indeed think that the US has a path forward to a military strike, but it lies within a conception of international law that is not just, as I describe in those two posts, “pragmatic,” but one that goes a step further and embeds international law itself in a larger system of (often rough) international order. The extent and force of international law has to be weighed in relation to these larger functional purposes of rough international order.  The US plays the role of guarantor of that rough international order, and international law in these matters is a means to that end, not an end in itself.

If that’s how one sees things – however one justifies this, adequately or convincingly or not – then the statements by President Obama, Secretary of State Kerry, and others make a lot more sense, because they are statements about the US playing its role as the security guarantor of such things as norms, with both formal and informal legal roots, against the use of chemical weapons.  If one doesn’t see things this way, then US declarations that it feels quite free to go ahead with a strike on the grounds that the Security Council is dysfunctional are simply lawless.

When I said that the Security Council was designed to deadlock when the great powers’ interests deadlocked, I was referring to its institutional history dating back to 1945.  The deadlock is designed to minimize the risk of war among the great powers, as well to ensure that the evolution of international norms does not result in a body of international law that, however morally admirable and pure, bears less and less relationship to how the great powers actually behave.  A great power – and arguably the country that does play the role of guarantor of the security system, the US – can if it wants simply ignore the deadlock and act, in order to try and safeguard some larger norm such as the ban on chemical weapon use.  I favor doing so, but I don’t want to minimize the risks that the Charter design seeks to address.

Because by acting without SC authorization in a matter in which great powers on the Security Council have serious, opposed interests, the US risks great power conflict, in a way that the Charter seeks to avoid by providing for deadlock and standstill.  I will post more about this – about the apparent inability of the Obama administration to understand the difference between the US role within the collective security system of the UN, even as the largest actor within it, on the one hand, and its role as guarantor of rough global security as the global security hegemon, acting from outside the UN collective security system, on the other.  The Obama administration, it seems to me, has hopelessly confused those distinct roles in its dealings with Syria and the chemical weapons norm.  I will say more about that in a later post.

However, to start with, I want to go back to the institutional design of the Security Council and give some account of the realism and idealism that accompanied the vision of the Security Council.  Below are a few paragraphs from Chapter 3 of my 2012 book, Living with the UN: American Responsibilities and International Order, drawing in part from Paul Kennedy’s historical account of the UN and the Security Council as envisioned in 1945, Parliament of Man (here’s my review essay on that book in the Goettingen Journal of International Law).

UN collective security was borne out of two contradictory impulses. On the one hand, it began with the realist recognition that collective security must be enforced by the great powers and, as a consequence, must be consonant with their interests or at least not too directly contrary to any one of their interests. On the other hand, it internalized an idealistic expectation that the Security Council would gradually evolve as an institution not just of great-power confabulation but of genuine global governance—into [Kofi] Annan’s (wishful, but exceedingly telling) description of the Security Council as “our fledgling global collective security system.”

The contradictions were present from the founding of the United Nations itself. The experiences of the 1930s, the rise of fascism, the collapse of the League of Nations, and the Second World War collectively left, as historian Paul Kennedy has written, the “American, British, and Soviet policy makers who were intent upon fashioning the world order in 1945 . . . in little mood for any of the flaccid well-meaning declarations that, they suspected, had given the League of Nations such weak legs.” But that instinct can, of course, lead in either of two directions: toward a harder, more realist vision of security or, alternatively, towards a stronger set of declarations and assertions of international law and institutions. The framers of the Charter went in both directions, albeit with a far stronger nod to the great powers of the day both in the composition and rules of the Security Council and, indeed, in the Security Council’s very existence.

In the realists’ view, the League of Nations system had been simply “too democratic and too liberal.” The creation of the Security Council explicitly as a gathering of great powers was a response to the weakness of the League of Nations and its paralysis, rooted in the fiction of equality between small states and great powers. In the Security Council, the great powers have mechanisms designed to ensure that their individual interests cannot be contravened to the point of leaving them with no desire to support the system. The existence of the veto—the structural feature of the UN system that per- haps most sticks in the craw of every state that does not have one—was, as Kennedy points out, deliberately designed to “weaken certain universalistic principles and compromise the effective response to possible transgressions of international law where a large nation was involved, but that was a lot better than no security system at all.”

The realists of 1945 were highly aware of the “different capacities . . . of large versus small states” to provide security. The 1930s taught these realists that militarily weak countries like Czechoslovakia, Belgium, Ethiopia, and Manchuria were inherent “consumers” of security. They could not provide for themselves, not because of some lapse of national character but because they lacked the demographic, territorial, and economic resources. . . . By contrast, the big powers were . . . the “providers” of international security—again, not because of any special virtues of character but because only they had the capacity to withstand and then defeat Germany, Italy, and Japan.

The new system aimed to harness the military capacities of the great powers, provided that the matter at hand did not fundamentally contradict any great power’s interests and was neither too remote nor too expensive. But it also tacitly acknowledged that if a powerful state should “decide to defy the world body and go it alone, there was little that could be done to prevent that happening.” One function of the veto, from the standpoint of international law, therefore, has been to allow the permanent five Security Council members to ensure that resolutions of the council do not go against them in their vital interests as a matter of making international law. Without this safety valve, over time, the formal international law of the Security Council and the United Nations would lose any connection to the actual behavior of the very states supposedly establishing it. Unprincipled from a legal liberal internationalist view? Quite. But realistic, and a realist fudge that has the capacity to keep international law in the game, as it were, of international politics as they unfold.

Yet the idealist vision of a federation of the world, with the military capacities of the large nations in the service of collective security, was also deeply present in the founding of the United Nations. Despite the apprehensions of important diplomats who feared that the new UN Charter had set too high a bar for “this wicked world,” the world’s leaders and politicians, in the opening sessions of the General Assembly and Security Council in 1946, were far closer to the peroration of Truman’s speech at the opening of the Charter for signatures: “This new structure of peace is rising upon strong foundations. Let us not fail to grasp the supreme chance to establish a world-wide rule of reason.”