Doctrine of the International Community: Attempting to Legitimize Go it Alone Policies?

Despite an initial flourish of headlines, relatively little scrutiny has been applied to Tony Blair’s recent speech in which he postulated the merits of a ‘Doctrine of the International Community’ and made a case for ‘reforming the United Nations so its Security Council represents twentyfirst century reality’. As the address provided little that has not been stated by the Prime Minister previously, the scant media coverage should not be wholly surprising. Yet the fact that his comments are not a revelation should not detract from their significance. Essentially, Mr Blair touched upon two sensitive and provocative subjects. Firstly, he is challenging the role of the system designed for the sole purpose of protecting and preserving international peace and security. Secondly, set in the context of the speech on the ‘Global Threat of Terrorism’ and the recent war in Iraq, his comments raise the question of whether the UN Security Council has exclusive responsibility to authorise the resort to armed force in international relations.

Sir Crispin Tickell, has noted that ‘big wars usually breed big attempts to create new mechanisms’. Although it must be stressed that Sir Crispin was referring to the catastrophically more bloody ‘big’ wars of the first half of the twentieth century, the case of the recent Iraq war is surely as ‘big’ in terms of the moral and legal debate which it stirred. So we should not be surprised that Mr Blair’s thoughts are being aired now. Indeed, the UN Secretary-General recently appointed a High Level Panel of eminent persons to examine Threats, Challenges and Change facing the UN, with particular reference to the issue of maintaining international peace and security. The High Level Panel will report later this year, but based on the Secretary-General’s terms of reference, it is likely that it will thoroughly examine, and recommend reform of, the main UN institutions.

A first observation concerning Mr Blair’s comments – and one that should be a leitmotif to the following discussion – is that his doctrine requires considerably more substantial meat on the theoretical bones. Whether these ideas or even those of the UN High Level Panel amount to a big attempt to change the way the international system operates is yet to be seen. What is apparently clear is that an international consensus is emerging on the need for re-evaluation of how the ‘international community’ deals with the realities of security in the modern world.

An accusation of hi-jacking the phrase ‘international community’ may yet be levelled at Mr Blair. After all, the UN is constantly referring to itself and its members as representing an ‘international community’. However over-used and ill-understood that term may be, it does conjure up a sense of a bond of equality, however strained, weak or indirect, between States. Yet the problems apparent in the ‘international community’ are those we would expect to find in any community – a population of nations with varying physical, psychological or emotional characteristics; inequalities of wealth and power; including a proportion of rogues and undesirables. What compounds these problems is the range of opinions regarding how the community should be run. In light of recent endeavours by the UK on the international scene, a possible inference from Mr Blair’s references to ‘mutual dependence’, ‘international collaboration’ and ‘partnership and cooperation’ is that certain States should be permitted to act as the ‘community policeman’ (some form of International Special Constable?) in cases where they perceive their interests, or those of the community as a whole, to be threatened.

So, the international community is crying out for a regeneration plan to transform it from a sink estate to a Royal Borough. The local council is characterized by political division and mutual suspicion. States wishing to play the role of the Special Constable are accused of being vigilantes by those reluctant to trust their motives, let alone accept their authority. Yet the novelty of the UN system is that five of the Council representatives – with power so great that they can veto any proposal put before it – cannot be democratically removed from power. Significantly, it is between these five that diametrically opposite viewpoints seem too often to emerge.

The reality of the Security Council is that political paralysis is the norm due in large part to fundamental disagreements between the permanent five. Throughout the Cold War, the division was invariably between the USA, UK and France on the one hand, and the Soviet Union on the other, with China either siding ideologically with its Communist neighbour, or ploughing its own, often abstentionist furrow. In the recent case of the Iraq crisis, France and Russia provided the stumbling blocks in the paths preferred by the UK and USA. Whatever the issue, it must be conceded that enduring differences endure between the permanent five with the effect of stifling the decision-making capability of the Security Council. This reality has too often led to inaction in the face of aggression, oppression or other breaches of international norms. One need only recall the shameful lack of Security Council action over the genocide in Rwanda, not to mention a persistent inability to deal decisively with enduring conflicts in Middle East or Kashmir, to conclude that such a reality is wholly unacceptable and could undeniably benefit from a rational, pragmatic reand evaluation. In this sense, any suggestion of reforming the UN system to prevent such failure in the future must surely be commended.

However, the nature and method of reform requires further thought and discussion. Space constraints preclude a full evaluation of the possible shape a revised Security Council may take. Wholesale renegotiation of the UN Charter is as practically impossible as it is unnecessary. However persistent calls for reform of the Council and its voting structure have been over recent decades, no progress has been made in redressing the international democratic deficit. It also seems unlikely that any current members of the Council will effectively vote themselves off the body in order to bring about this sort of reform. A model such as that used in the European Commission – where representatives are selected by Member States, after which time they act independently in the interests of the organisation – is unlikely to work in the Security Council due to States’ desire to retain political control and influence. What Mr Blair seems to be calling for is refinement of the system which is admittedly favourable to continued reinterpretation by States.

The Prime Minister suggested that the Doctrine of the International Community would permit that, ‘in certain clear circumstances, we do intervene even though we are not directly threatened’. This statement poses three questions; firstly, what are the ‘certain circumstances’ precluding intervention; secondly, by whose definition do we accept that any situation represents a ‘clear’ case requiring intervention, and; finally, who is meant by ‘we’? Essentially, all three questions are subordinate to one fundamental question: from where does the authority to intervene originate? What is most concerning about such a statement is that it could be read to suggest the relaxing of the rules governing the resort to force (the jus ad bellum) which has been established as the last resort under the UN system.

As Kenneth Waltz has noted, ‘[n]o one will deny that collective efforts are needed if common [international] problems are to be solved… Global problems can be solved by no nation singly, only by a number of nations working together’. Although the Doctrine appears to conform to this view prima facie, we must be more concerned with how nations work together to solve international problems, especially those which may require the use of force.

Further, it is imprudent to evaluate the above questions without consideration of which nations take it upon themselves to assume the role of the ‘community policeman’ – let us be clear; the State claiming this role (evident from its actions) is the United States, often assisted by Britain. Returning, therefore to the questions raised by Mr Blair’s statement, the danger is that States will determine the certain circumstances precluding action; that ‘intelligence-led’, political judgement will determine the clarity of the case and that ‘we’ will be those States – doubtless termed a ‘coalition of the willing’ – with the capacity and the power to act without explicit UN authority. This raises the issue of whether the UN, through the Security Council, is the sole originator of authority governing the resort to force.

Based on a strict interpretation of the UN Charter, it would appear that States have devolved their sovereign right to wage war to the Security Council. Through Chapter VII, the Council alone is empowered to determine the presence of, and react to, breaches of international peace and security. Following such a determination, the Council may adopt non-military measures and may only proceed to the last resort of military measures following a determination that economic or diplomatic sanctions have been ineffective. This represents an idealised process – and one which is seldom followed.

In practice, the Council does not ‘legally’ or rationally justify its resolutions, or even provide any indication of the discussions out of which they emerge. It even seems to be beyond the capability of the Council to explain which Article of the Charter it is referring to or acting under in resolutions. Yet this should not be surprising if we accept that the Council is an essentially political organ and accordingly that its political schizophrenia has proven it to be a cumbersome and unsatisfactory originator of international law.

Thus States are challenging the authority of the UN system through their own reinterpretation of ‘law’, safe in the knowledge that they are unlikely to be subject to any form of international disciplinary action – especially if they number among the economically and militarily advanced States of the community. Justifications of pre-emptive action, (pre-emptive) self-defence and humanitarian intervention are evidence of States circumventing the letter of the law to satisfy their political aims. The doctrine of Pre-emptive Action, which has been identified as a part of what some have called the Bush Doctrine, is more accurately a US Doctrine, most candidly elucidated when Madeleine Albright stated that the US would ‘act unilaterally where we must’. There is little to suggest that this doctrine will change regardless of whether the administration in Washington is Republican or Democrat. In Washington, the Constitution is at least as powerful an originator of law as the Security Council, if not more so by virtue of it’s democratic accountability to the American people.

This highlights another ambiguity of Mr Blair’s doctrine which requires further clarification: namely that ‘sovereignty’ has become something of a dual-edged sword. On the one hand, the Doctrine implies greater sovereignty for the ‘community policeman’, while on the other hand, eroding the sovereignty of States on the ‘receiving end’ of community action through weakening the rule of non-intervention. The legal justification for intervention can therefore be based on a State’s sovereign ‘understanding’ of Customary International Law. However, Customary International Law is more than practice alone; rather it comprises a combination of practice and opinio juris – a consistently held conviction that a certain practice is required or permitted by international law. States cannot therefore invoke previous practice alone to justify action as this merely provides the opportunity for continual practice to be invoked as further evidence of custom further down the line, thus perpetuating the cycle. There must be evidence of a consistently held belief, approaching consensus, that a norm of law exists.

So, the problem with which we are faced is that the UN should represent the sole authority to sanction the use of force but has proven itself incapable of doing the job. Unsurprisingly, States have literally taken the law into their own hands. What is ultimately instructive in this reality, however, is that States have not always justified their actions based on the law created by the UN. This reality provides further de facto evidence that the Security Council is not the sole guardian of the rules governing the resort to force, and represents a challenge to the fundamental principles of the system which was created in 1945.

Accepting the above arguments, are we to concede that international law is subservient to the sovereignty of powerful States, rather than the protector of sovereign States? Such a conclusion may betray the realism of the current system, but need endure if we prefer to uphold the principles of the UN Charter which enjoys near universal acceptance by States. The law embodied in the Charter is therefore truly international and must accordingly be the blueprint for our regeneration plan.

Article 2 (3) of the Charter, states that ‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. States acting wholly independently of the UN system in the use of force will not only be breaching the international peace, but also endangering the very foundations of international justice. The authority of law must not become subordinate to the power of politics through (re)interpretation to fit the political interests of States.

In conclusion, if Mr Blair’s suggestion of reforming the UN involves pragmatic reevaluation of the international system to address some of the inadequacies proven through its half century in existence, then the Doctrine can only be welcomed. However, if it implies a loosening of the rules under which States operate so that sovereign interpretation of the law is determinative of their actions, this would be a most concerning development.

The danger of unquestioningly accepting unilateralism is that it may set a precedent which will merely beget yet more unilateralism with increasingly dubious or ill-founded legal justifications. The effect will doubtless be to undermine the whole international legal system. If States are left to claim and create authority to use force based on their own interpretations of the law, we must question where the checks and balances are so that the system. We must also be mindful of the likelihood that other States may question the legitimacy of such a system and themselves act independently of any real authority to do so thus creating a dangerous vicious cycle.

Owen Gibbons RUSI