MEDFORD, Mass. — There was always an air of unreality about the United Nations Security Council debate on Iraq. Whether the new inspection regime succeeds or not, that unreality will not go away.
For eight weeks, the council labored over an American draft resolution concerning Iraq and the possibilities for confronting Saddam Hussein. Diplomats haggled over every word. The tight new inspection rules represented a striking diplomatic victory for the United States, though the council declined to grant the United States the explicit authority to use force that it had requested.
The reasoned debate tended, however, to conceal the radical reality behind it: the breakdown of international rules governing the use of force. The United States claimed it did not need Security Council approval. The administration always insisted that it had the right to attack Iraq regardless of what the Security Council decided. In the event of an Iraqi breach of Resolution 1441, Secretary of State Colin L. Powell said, the Security Council "can decide whether or not action is required," but the United States will "reserve our option of acting" and "not necessarily be bound by what the Security Council might decide at that point."
Why would the Security Council spend two months deciding whether to authorize the use of force if its decision were not binding? How can the council's decision bind Iraq but not the United States?
The administration's answer has never been articulated publicly. But its underlying theory probably was inherited from the Clinton administration's Balkan policy. Asked whether the United States was still seeking explicit Security Council approval to attack Iraq, Secretary Powell said, "The president has authority, as do other like-minded nations, just as we did in Kosovo."
The Security Council never authorized use of force against Yugoslavia. Absent Security Council approval, the United Nations Charter prohibits the use of force except for self-defense. NATO, which led the Kosovo war, never seriously claimed a defensive rationale, and the United States has yet to advance such a justification concerning Iraq. Given the contradiction between the mandate of the Charter and the prevailing American view on Iraq and Kosovo, what has happened to the law?
It is hard to avoid the conclusion that the Charter provisions governing use of force are simply no longer regarded as binding international law. Policy makers are of course loathe to admit that. When the question arises, it's much easier to throw up a smoke screen by contending, for example, that the council's 1990 authorization for the Persian Gulf war continues to provide all the authority needed. Few in the press or public will sift through the arcane language of old Security Council resolutions to assess such a claim. Better to present the question as an eye-glazing lawyers' argument than to stage a frontal assault on the core principle of the international legal order.
Behind closed doors, however, policy makers have done just that. When Robin Cook, the British foreign secretary, told Secretary of State Madeleine Albright that he had "problems with our lawyers" over using force against Yugoslavia without Security Council approval, Secretary Albright responded: "Get new lawyers." New lawyers would have pointed out that, since 1945, dozens of member states have engaged in well over 100 interstate conflicts that have killed millions of people.
This record of violation is legally significant. The international legal system is voluntary and states are bound only by rules to which they consent. A treaty can lose its binding effect if a sufficient number of parties engage in conduct that is at odds with the constraints of the treaty. The consent of United Nations member states to the general prohibition against the use of force, as expressed in the Charter, has in this way been supplanted by a changed intent as expressed in deeds.
The United States is therefore correct: it would not be unlawful to attack Iraq, even without Security Council approval. It seems the Charter has, tragically, gone the way of the 1928 Kellogg-Briand Pact which purported to outlaw war and was signed by every major belligerent in World War II.
Of course it remains useful politically to act with the backing of the Security Council. But the Charter was supposed to be about more than politics. The urgent issue today is the breakdown once again of international rules governing the use of force. Until that problem is addressed, the Security Council's deliberations on the use of force will continue to seem surreal.
Michael J. Glennon, professor of international law at the Fletcher School of Law and Diplomacy at Tufts University, is author of "Limits of Law, Prerogatives of Power: Interventionism after Kosovo."www.nytimes.com/2002/11/21/opinion/21GLEN.htmlE-mail this article