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