Rethinking International Law

By Armand Laferrere

It's time to change the way the UN does business, helps the needy, and manages conflict.

European institutions established in the immediate post-World War II period have undoubtedly aged faster, and more poorly, than those from any other comparable period. The failure of these national institutions—such as centralized welfare organizations and government-owned monopolies—is widely acknowledged; even their defenders recognize that they must be radically reformed if they are to survive. The problems are all too obvious: They lack proper oversight, are not adapted to a changing world, and are both costly and startlingly inefficient.

On the international level, however, the establishment of the United Nations in July 1945 is still described as an event of unmitigated progress. Yet this international institution has much in common with the national institutions founded in the same period. In both cases, the declared objectives were certainly noble. Indeed, the United Nations Charter of June 26, 1945 boasts the most lofty of objectives: To outlaw war, defend the right of peoples to self-determination, and grant equality to all sovereign states. It is exceedingly unfortunate, then, that this institution is also weakened by the same problems that plague its national counterparts: Insufficient oversight, increasingly archaic mechanisms, and poor performance.

The lack of adequate oversight was recently exposed by two affairs that would have seriously damaged the UN’s credibility—if, that is, the organization were in fact judged by its results. The first was the revelation of large-scale misappropriations in the administration of the Oil for Food program, which was designed to permit humanitarian exceptions to the embargo imposed on Iraqi oil sales after the 1991 Gulf War. Under its terms, Iraq was permitted to sell oil in exchange for basic necessities; revenue from these sales was to be placed in a fund administered by the UN in exchange for a commission of roughly two percent, which was then to be used to purchase food, medicine, and other such items as authorized by UN administrators.

Details on the way the funds were actually used are still emerging, but it has already been firmly established that several billion dollars were misappropriated, ranking it among the greatest financial frauds in history. Payments were consistently approved for expenses not the least bit humanitarian, such as subsidies to the Iraqi Information Ministry and real-estate deals that enriched Saddam Hussein’s coffers. Meanwhile, international businessmen and politicians were corrupted by gifts of oil vouchers: Sold at a fraction of their real value, these vouchers gave the right to resell oil at the market price (only the first, underpriced payment made its way into the UN fund). According to Iraqi documents, the senior UN official in charge of administering the program and a former French ambassador to the UN were among the beneficiaries of this largesse. Both men have since contested the authenticity of the incriminating documents. Whatever the case may be, the program’s oversight was clearly inadequate in light of the sums involved. Moreover, the blatant misappropriation of funds meant to alleviate Iraqi suffering adds a discordant note to proclamations of solidarity with the Iraqi people uttered of late in certain diplomatic circles.

In December 2004, shortly after the Oil for Food scandal came to light, UN auditors published a report on a child prostitution ring organized by and for UN peacekeepers in the Congo. Similar accusations had already been made against UN troops in Eritrea and Bosnia. This time, however, the UN itself confirmed the charges and admitted to cover-ups by commanding officers in the field. Nonetheless, the officers and soldiers involved emerged without so much as a slap on the wrist: They are not, we were told, subject to UN discipline. Ironically, the UN sex scandal did not arouse great interest among the same Western media who gave such broad coverage to sexual humiliations committed by American soldiers in Iraq—who, it should be noted, have since been severely punished.

The UN is also handicapped by the persistence of founding ideas that no longer correspond to today’s threats. The most striking example is the principle of non-interference in the internal affairs of its member states. This principle, which has been clearly and regularly reaffirmed by the General Assembly, is sometimes stated as the corollary of the principle of the “sovereign equality” of states, set forth in Article 2 of the UN Charter. Certainly the principle of sovereign equality is logically necessary to validate a body of international law based primarily on treaties between states. Yet it does not follow that those same states should forswear the possibility of intervening in the affairs of another state, particularly if the conduct of that state seriously jeopardizes others.

Indeed, the most widely accepted exceptions to the principle of non-interference do not correspond to the most urgent needs. For instance, the first exception—the right of a state to protect its citizens abroad—raises no special problems, but is useless in cases in which world peace is endangered by a state’s treatment of its own citizens. The second, more recent and more controversial exception is the “duty of humanitarian intervention,” which obligates states or non-governmental organizations to give emergency aid to distressed populations, even without the permission of the government in charge. This justification was invoked in 1991 to help the Iraqi Kurds after Saddam Hussein’s ruthless suppression of their uprising. Although the principle is admirable, however, it rarely responds to situations that provoke a serious destabilization of international relations.

Furthermore, international law still lacks responses to two situations—defaulting on public debt, and aiding and abetting terrorism—in which the domestic competence of states may have serious international consequences. As regards the first situation, there is no reason why state sovereignty should serve as a pretext for the non-payment of debts; this only encourages states to make decisions that endanger the international financial system. International law would have everything to gain by giving states or international organizations the right to intervene in the domestic affairs of a defaulting state until its creditors obtain satisfaction. The very existence of such a public bankruptcy procedure would serve to modify behavior and thereby to stabilize international finance.

A far more serious limitation of the non-intervention principle, however, is revealed in the case of state support for terrorism. The laws of armed conflict are adapted to situations in which one state directly threatens another with its own military forces. Those laws did not envisage the current practice of states financing, arming, and housing terrorist organizations, and in turn using them to intimidate and obtain concessions from others. These states cannot be condemned as aggressors, because they do not use their own armed forces. Thus they are able to hide the details of their relations with terrorists—even when such relations undoubtedly exist—and avoid the consequences of armed aggression prescribed by the UN Charter. This is why Iran, for instance, can give organized support to Hezbollah without the slightest bit of trouble from the UN.

This blind spot in international law is unacceptable in a world in which it is quite easy to supply biological, chemical, radiological, or nuclear weapons to terrorist organizations while denying complicity. In order to remove the possibility of easy denial—without question, their greatest advantage—from states that aid terrorists, the right to resort to force under the UN Charter should at least be revisited in such a way that would allow intervention against states whose conduct makes it obvious that they do not wish to combat terrorism.

These reforms would greatly improve the performance of a UN system that since its inception has had rather limited success in meeting the aims assigned to it by the 1945 Charter. In fact, as regards the organization’s most important mission—the promotion of world peace—it is much easier to list the conflicts that the UN has been either unable or unwilling to resolve than those it has brought to a favorable conclusion. Even when the Charter objectives were attained, it was not necessarily the result of UN efforts. A case in point: In the spring of 2003, it took a coalition of states, acting without a Security Council mandate, finally to enforce respect for seventeen resolutions passed by that same Council explaining how Saddam Hussein endangered world peace. If not for that coalition, the UN, faced with the threat of a veto from a permanent member that had nonetheless voted for all the preceding resolutions, would have been in the embarrassing position of issuing threats seventeen times, yet never once acting. Strangely enough, those who defend the organization did not seem especially grateful to the allies who spared it this embarrassment.

In fact, when UN institutions do choose to act, those same defenders do not bother to evaluate whether that action results in increased credibility. The 2004 Security Council decision to discuss possible reactions to the massacres of black Muslims in Darfur by Arab militias encouraged by the Khartoum government was met with great satisfaction. Lively debates exposed the pros and cons of applying sanctions against Sudan, and several commissions filed reports. Sudan was by turn scolded, congratulated for reducing the pace of the massacres, then scolded again. In the meantime, the wells of Darfur filled with cadavers, and skeletal survivors trudged through the dust to the border with Chad. Most important, however, was that the essential principle was preserved: No state had the effrontery to take unilateral action.

Despite these failures, the UN still has its defenders, who argue that the UN governs international relations by law instead of by balance of power; consequently, if governments bow to UN dictates and accept limitations on their power, they are rewarded with the blessing of living in an international community subject to the rule of law.

Yet this discourse has a serious flaw. If the world is to be governed by the rule of law, decisions of UN bodies must be voted upon by states that have shown some attachment to the rule of law in their own territories. But the rule of equality of member states has a most unfortunate result: The majority vote in UN bodies, from the General Assembly down to associated commissions and organizations, comes from a mixture of kleptocrats, theocrats, president-colonels, and old-fashioned communists. The UN representatives of these heads of state couldn’t care less about the rule of law; they deny it to their own citizens.

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