The Police in the Temple: Order, Justice and the UN- A Dialectical View

Martti Koskenniemi¹

Full text available: PDF format ^*

I

Controversy reigns over the Security Council. Was the Council entitled to authorize a United States-led coalition to make war on its behalf to oust Iraq from Kuwait, or to re-establish the Aristide Government in Haiti?² Could it impose a peace arrangement, including a liability regime, on Iraq and to strengthen it by an economic blockade, originally set up for another purpose?³ Was the Council acting within its competence as it prevented Bosnia-Herzegovina from exercising its `inherent right of self-defence' by an arms embargo directed at the aggressor and the object of aggression alike, or when it short-circuited the International Court of Justice by demanding the extradition of two Libyan citizens over rights accorded to Libya by an international treaty?⁴

Such questions have aroused the anxiety of international lawyers. But there are other questions, too. Is the Council entitled to intervene in the government or misgovernment of States as soon as political agreement has been attained between its principal members that the matter raises a `threat to international peace and security' under Article 39 of the Charter? This seems suggested by its enforcement action to counter Southern Rhodesia's illegal declaration of independence in 1965 and its reaction to South Africa's policy of apartheid since 1977.⁵ Yet, white oppression of a black majority remained a special case - until the Council intervened in the civil wars devastating Liberia, Somalia, Angola and Rwanda⁶and to remove Haiti's military leadership.⁷ Clearly, internal crises may create a danger of escalation and thereby implicate international security. But was the Council not stretching it a bit when it declared, at a euphoric moment, that problems of an ecological, social or economic kind may also concern the maintenance of international peace and security?⁸ Was it in fact making a carte blanche declaration of the limitlessness of its powers?

That the Council frequently makes declarations about the lawfulness of State action may seem a relatively innocent incursion into a judicial function (in spite of the absence of a due process clause from the Council's [provisional] rules of procedure).⁹ The setting up of two ad hoc war crimes tribunals to issue binding judgments seems already precariously close to international legislation.¹⁰ Is the Council both a Court and a Parliament? What about its propensity to look away from flagrant breaches of the peace, or officially induced massacres, when its key members fail to agree on an appropriate reaction?¹¹ What is the Council's responsibility? Is it in the position of the Hobbesian sovereign, for whom `there can happen no breach of Covenant' between himself and his subjects because there is no such Covenant at all. Is it true of the Security Council, that:

... because the End of this Institution is the Peace and Defence of ... all; and whosoever has the Right to the End, has the Right to the Means, it belongeth of Right [to him] to be Judge both of the meanes [sic] of Peace and Defence; and also of the hindrances, and disturbances of the same; and to do whatsoever he shall think necessary to be done, both before hand, for the preserving of Peace and Security, by prevention of Discord at home and Hostility from abroad ; and, when Peace and Security are lost, for the recovery of the same.¹²

The controversy relates to the Security Council's place in the UN and in the world. Given the Council's composition and working methods, its monopolization of UN resources and the public attention focused on the Council is problematic. The dominant role of the permanent five, the secrecy of the Council's procedures, the lack of a clearly delimited competence and the absence of what might be called a legal culture within the Council hardly justify enthusiasm about its increased role in world affairs.

International lawyers have responded by seeking out normative limits to Council authority from an interpretation of Articles 1, 2, 24(1) and 39 of the Charter, laying down the purposes and principles of the Organization and the formal competence of the Council plus creating a link between them.¹³ But the principles and purposes of the Charter are many, ambiguous and conflicting. The relationship between domestic jurisdiction in Article 2(7) and human rights under Articles 1(2), 1(3) and 55-56, for example, can only be determined by successive acts of application by UN political organs in accordance with the political logic of the moment.¹⁴ The purposes and principles are no less indeterminate than the concept of a threat to peace. Textual constraint is practically non-existent. Inasmuch as each organ is the judge of its own competence, procedural constraint seems scarcely more significant.

For this reason, many have taken the `realist' position that the relevant issue is conclusively settled through an analysis of the politically possible: if the Council - or the permanent five - can agree, then there is little more to say. The lawfulness of their agreement under some - always contested - standard is even at best of only academic interest. As such a standard cannot be successfully invoked against the Council, relying on it in practical politics (in contradistinction to learned articles) would encapsulate a discredited idealism. For better or for worse, what the Council says is the law.¹⁵

From the lawyer's perspective the realist response clearly misses the point. Authority is a normative and not a factual category. Power is distinct from authority: a gunman's orders do not turn into law merely because there happens to be no police around.¹⁶ A nagging doubt remains, however. If the lawyers themselves are divided (and this `internal' objection is intended to respond to their Erkenntnisinteresse) and the permanent members of the Council are always able to marshal prestigious names to buttress their reading of the relevant principles, how long is it useful - or possible - to resist?

The impasse of the `realist' and the lawyer follows from their perspectives inevitably remaining within the controversy they seek to resolve. The competence of the UN relates to questions of order (power) and of justice (authority) but cannot be reduced to either one. The Organization is neither simply a policeman nor a Temple of Justice - though in its individual actions it tends to show itself as one or the other. In this paper I shall propose a `dialectical' view on its competences that seeks to accommodate concerns of power and of authority and to provide a foothold for reformed institutional policy.

^* The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.

1 University of Helsinki.

2 SC Res. 678 of 29 November 1990; SC Res. 940 of 31 July 1994.

3 SC Res. 687 of 3 April 1991.

4 For the arms embargo, cf. SC Res. 713 of 25 September 1991 and the analysis e.g. in Petrovic, Condorelli, `L'ONU et la crise Yugoslave', XXXVIII AFDI (1992) 35-6 and on the Libyan situation cf. SC Res. 748 of 31 March 1992 and Lockerbie (Libya v. USA) case, ICJ Reports (1992) 114-127.

5 SC Res. 232 of 16 December 1966 (Southern Rhodesia); SC Res. 418 of 4 November 1977 (South Africa).

6 E.g. SC Res. 788 of 19 November 1992 (Liberia); SC Res. 794 of 3 December 1992 (Somalia); SC Res. 864 of 15 September 1993 (Angola) and SC Res. 929 of 22 June 1994 (Rwanda).

7 Cf. SC Res. 841 of 16 June 1993, SC Res. 875 of 16 October 1993; SC Res. 940 of 31 July 1994, SC Res. 944 of 29 September 1994 and SC Res. 948 of 15 October 1994.

8 The full text of the relevant part of the statement issued from the Security Council `Summit Meeting' reads: `The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to international peace and security'. UN Doc. S/23500 (31 January 1992).

9 Cf. generally Higgins, `The Place of International Law in the Settlement of Disputes by the Security Council', 64 AJIL (1970) 1-18. But see also the criticism by Graefrath of the Council's `summary court procedure' in relation to the Libyan sanctions in `Leave to the Court what Belongs to the Court', 4 EJIL (1993) 192 et seq. Also Higgins has later taken a more critical view, labelling the Council's decisions on the Iraqi liability regime as `extremely unusual' and `very, very different from anything we have expected of the Security Council before', in Problems & Process. International Law and How We Use It (1994) 183, 184. On this same point, cf. also Zedalis, `Gulf War Compensation Standard: Concerns under the Charter', XXVI RBDI (1994) 333-350.

10 SC Res. 827 of 25 May 1993; SC Res. 955 of 8 November 1994.

11 For a discussion of the Iran-Iraq war (1980-1988) from this perspective, cf. O. Russbach, ONU contre ONU. Le droit international confisqué (1994) 141-166.

12 Thomas Hobbes, Leviathan (1651) Part II, Ch. 18.6 (Penguin 1982, ed. & Intr. by C.B. Macpherson) at 232-3.

13 Cf. Bedjaoui, diss. op., Lockerbie case, ICJ Reports (1992) 155-156 (paras. 25-26); Weeramantry, diss. op. ibid. at 170-175 and of the large commentary on the Lockerbie case e.g. Chappez, `Questions d'interprétation et d'application de la Convention de Montréal du 1971 resultant de l'incident aérien de Lockerbie', XXXVIII AFDI (1992) 477-479 and Greafrath, supra note 8, at 186-187. See also generally O. Schacter, International Law in Theory and Practice (1991) 399-400 plus the various essays in Recueil des Cours, Colloque: Le développement du rôle du Conseil de sécurité (1992).

14 M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument (1989) 212-220. For a recent discussion, cf. Bailey, `Intervention. Article 2.7 versus articles 55-56', XII International Relations (1994) 1-10.

15 Pellet, `Conclusions', in B. Stern (ed.), Les aspects juridiques de la crise et de la guerre du Golfe (1991) 490.

16 H.L.A. Hart, The Concept of Law (1962) 19-20, 54-60.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Tuesday, October 14, 2003 12:13PM