Thoughts on the UN at Fifty

II

During its fifty years, the UN has been remarkable for two reasons in particular. The first is the variety of the functions it has carried out. One (which these essays do not address, given their emphasis on peace, security, human rights and institutional issues) is the promotion of cooperation in the vast realm of economic, social and ecological interdependence. This may well form the most valuable part of the UN's activities. A second function is of the highest importance: the production of norms of international legitimacy, a task that has been carried out through a large number of treaties and declarations as well as through such policies as the drive for decolonization and against apartheid. The relation between this function of legitimization and the cornerstone of the international order, sovereignty, is especially interesting - and ambiguous. Decolonization has led to the multiplication of States formally endowed with all the trappings of sovereignty. The emphasis put by the UN on the principle of self-determination has resulted both in encouraging the disintegration of Empires and multiethnic States and in promoting new, successor `sovereign' States. The norms proclaimed in the realm of human rights impose sharp limitations on the internal sovereignty of States, and establish a set of standards for the treatment of individuals that all States are supposed to observe, as Prof. van Boven shows.

A third function is the settlement of disputes among States. The essays by Profs. Ratner, Franck and Higgins examine the difficulties encountered by the UN, partly because of the cold war, partly because of the intractable character of some of these disputes (India-Pakistan, Israel and the Arabs, Cyprus, etc.), and partly because the UN has often been preempted, as a mediating agency, by some of its members or by other organizations. The essay by Prof. Franck points out that the Secretary-General has found, in this area, one of his main opportunities for influence.

The fourth key function is the legitimate collective resort to force against threats to peace, breaches of peace and acts of aggression, as provided for by Article 2(4) and by Chapter VII. Prof. (now Judge) Higgins, in her trenchant analysis, observes that there have been only two instances of collective security: Korea and the Gulf war, and that, in the absence of the agreements for military enforcement called for by Article 43, neither operation was fully in conformity with the prescriptions of the Charter: `the authorization of "coalition forces" appears to be all that is on offer'.

And yet, Chapter VII has been invoked with increasing frequency, especially after the end of the cold war. This points to the second characteristic of the UN: its flexibility. The UN has been extraordinarily creative both in avoiding the paralysis to which the bipolar conflict seemed to condemn it and in finding new techniques for dealing with situations unforeseen by the drafters of the Charter (like almost every international or regional organization the UN was set up to cope with the problems that had defeated `international society' in the recent past). Thus, at the time of the Korean war, the Uniting for Peace resolution transferred in fact some of the deadlocked Security Council's powers to the General Assembly. During the Belgian Congo crisis, Dag Hammarskjöld, Ralph Bunche and the General Assembly gradually established some principles for dealing with a civil war, as Brian Urquhart has reminded us in his very fine biography of Bunche.³ The greatest mark of flexibility, in the realm of peace and security, has been the development of `peace-keeping': both after the political settlement of a dispute, and in the (frequent) absence of such a resolution but after a cease-fire (often brokered by the UN), UN observers or peace-keepers have been sent all over the world to try to use the prestige of the organization as a deterrent against a breakdown of peace - often successfully, often not (as in the Sinai in 1967 or in Croatia in 1995), and sometimes the very success of peace-keeping has made the ultimate resolution of a dispute even more remote (Cyprus, Kashmir). Prof. Ratner distinguishes two `generations' of peace-keeping, the second one entailing a variety of new executive responsibilities for the UN. Much of this goes beyond what was envisaged by Chapter VI.

Is such flexibility an unmitigated blessing? Prof. Higgins denounces its drawbacks: excessive flexibility, indifference to categorization and a `pragmatic', case by case approach can lead to `operational uncertainty' and non-compliance. Above all, the blurring of the border between peace-keeping and enforcement action, the resort to what Prof. Ratner calls `interpositional peace-keeping' in a conflict in which there is no cease-fire at all (as in Bosnia) or a very shaky one (Croatia) or when there are no organized parties (Somalia), the removal - implied, according to Prof. Higgins, by Secretary-General Boutros Ghali's Agenda for Peace - of `the condition of prior agreements firmly in place' for these new, ambitious forms of peace-keeping, risks precipitating the UN into fiascos such as its Yugoslav conundrum, where what should have been, as she rightly states, a case of collective security (to protect one of the UN's members - Bosnia - from aggression), was treated by a mix of diplomatic procedures for the settlement of ordinary disputes, peace-keeping (in the absence of peace), and ill-advised, limited and unenforced enforcement measures. Of course, the reason for the frequent resort to Chapter VII, in recent years, was the felt need for the UN to deal with a variety of often horrendous civil conflicts: given the barrier constituted by sovereignty or domestic jurisdiction, a finding that domestic strife threatened peace and security in the whole region or in the world was necessary. But the fact is that Chapter VII-type enforcement measures are often inadvisable in civil wars (one of the principles established in the Congo crisis was the non-choosing of sides) and unlikely to receive much support from the members. Although Chapter VII may remain necessary as providing a basis for action, it is Chapter VI that ought to be `stretched' so as to allow the UN to deal, through preventive good offices, mediation, or the provision of humanitarian aid, with the avoidance, the resolution or at least the mitigation of civil war. The distinction between enforcement action and the settlement of disputes ought to be maintained, as Prof. Higgins states. It is the distinction between international and internal disputes that ought to be softened or even abolished - whenever the latter are, or should be, of general concern. Here, as I have suggested elsewhere,⁴ two norms for collective intervention are needed; one, already in place, deals with order, and concerns domestic strife that is a genuine threat to peace and security across borders; the other one, that is painfully and slowly emerging, deals with justice, and concerns massive violations of human rights; these ought to be seen ipso facto as a legitimate cause for collective intervention in a civil war.

3 See B. Urquhart, Ralph Bunche (1993).

4 In a lecture at Notre Dame University on sovereignty and intervention, to be published soon.

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