The Charter: Does It Fit?

Liberal internationalists have never felt comfortable questioning the relevance of the United Nations Charter. The Charter is Holy Writ; to criticize it implies a lack of commitment to international engagement and cooperation. Liberal internationalists like to be known as cosmopolitan in their appreciation of things that are different, unusual, "foreign". Criticism of the Charter has thus been caricatured as the metier of the xenophobic right, the "black helicopter" spotters, a group long unburdened with a desire to appear urbane or sophisticated.

The asymmetry of criticism directed at the United Nations has been unfortunate, most of all for the Organization itself. For it has denied the United Nations the benefit of thoughtful ideas for reform from those who most respect it. Of course, liberal academics have advanced various proposals for tinkering at the margins-adding a seat to the Security Council here, changing the contribution structure there-but, by and large, when it has come to really "speaking truth to power", to delivering unvarnished, no-holds-barred criticism of core elements of the Charter or the Organization, UN supporters have been its worst enemies.

The UN's marginalization in Kosovo is a consequence. Year by year, it became more and more dear that the Charter contains a fundamental flaw: it is oblivious to barbarism of the most horrific sort, so long as that barbarism remains purely internal. So long as genocide occurs within a State's own borders, the Charter regards sovereignty as the controlling principle. Intervention to stop it is impermissible. The Security Council is disabled from acting under Article 39 because there is no threat to the peace, breach of the peace or act of aggression. Individual States are prohibited from using force under Article 2(4) because to do so would violate the territorial integrity of the genocidal State.

Thus, in Cambodia, Uganda and Iraq, the Charter provided no lawful recourse in the face of millions of deaths at the hands of modern-day madmen. The real problem of violence confronting the international community, it has become apparent, is no longer interstate violence. The idee fixe at which the Charter's core prohibitions are directed is invasion, the paradigm being the 1939 German invasion of Poland. The transcendent problem, it was thought in 1945, was interstate conflict. But the recurrent problem today is not invasion; the problem today is intrastate violence, not interstate violence.

The solution to the Charter's anachronistic focus that has been proffered by the UN's friends has not been helpful. That solution has been to pretend that the Charter in fact permits the Security Council to intervene or to authorize intervention by individual States, where the Charter clearly outlaws intervention. We can pretend that it permits such intervention, they suggest, by arguing that its meaning has "evolved"; the Charter is after all a constitution of sorts, and constitutions have play at the joints sufficient to adapt to changed tunes and circumstances.

The difficulty with this argument is that it runs counter to the plain language of Articles 39 and 2(4) - to say nothing of Article 2 (7), which flatly prohibits UN intervention in matters within the States' domestic jurisdiction. It is one thing to view a constitutive regime as evolving interstitially between the gaps of textual provisions. It is quite another, however, to think that it can evolve to take on a meaning contrary to express textual prohibitions and limitations.

In fact, the adaptivist argument is a dangerous one for the United Nations. States will be less likely to join treaty regimes if they can later be told that the treaties have come to mean something altogether different than what they agreed to.

The United States Senate fought a pitched battle with the Reagan Administration when the latter tried in the 1980s to argue that the ABM [anti-ballistic missile] Treaty no longer meant what the Senate was told it meant when it gave its consent in 1972. For the United Nations to step into Reagan's shoes and pursue the same argument would be to court political disaster. It would not sell in democratic assemblies where the rule is that you get what you vote for.

What, therefore, is to be done to make the Charter "relevant" with respect to the vexing question of intrastate genocide? Clearly, we face a dilemma: if States push to amend the Charter to permit counter-genocidal intervention, other States, perhaps powerful ones such as China and Russia, could choose to opt out rather than submit to the possibility of pretextual intervention for ulterior political or economic motives. Their history surely warrants caution in accepting lightly any regime that could force them to relive historical nightmares. And, as we saw after Versailles, a regime without key international players risks even greater irrelevance than one that forces States to breach it.

In the end, there may be no way out of this quandary; the international community may be forced to choose between the rule of law and the exigencies of justice, just as the North Atlantic Treaty Organization (NATO) had to do in Kosovo. Perhaps its choice will again be law over justice, so as to permit universality in membership. With the cold war over, however, the international community should be willing to sacrifice marginal stability to forestall internal genocide. This is the path laid out by British Prime Minister Tony Blair in his groundbreaking remarks in Chicago on 22 April 1999.

The speech, one of the most remarkable and far-sighted given by a world leader in many years, makes the case that "[a]cts of genocide can never be a purely internal matter". The "Blair Doctrine", as it has been called, further recognizes the need for Security Council reform to reflect the propriety of intervention to stop genocide. Many possible improvements exist, beginning with rethinking the veto enjoyed by the Council's five permanent members. More important than any one reform, however, is the need for a new openness to it. As Blair put it, "we have to establish a new framework".

Ultimately, the route to greater relevance for the United Nations is a system that is both stable and just, not a system that excessively exalts stability at the price of basic human dignity.

Issue of Veto Must Be Examined, Says General Assembly President

General Assembly President Didier Opertti on 2 June criticized the North Atlantic Treaty Organization for acting "as a law unto itself", but acknowledged that the United Nations had been "hamstrung over Kosovo by an outdated veto system" in the Security Council. "Obviously the fact that the decision was taken by this defensive alliance leads to a new situation which is outside the ambit of the Charter of the United Nations", Mr. Opertti, who is also Foreign Minister of Uruguay, told the press in London where he had a meeting with Foreign Secretary Robin Cook of the United Kingdom. In the end, the United Nations would join attempts to resolve the Kosovo crisis, although there were no discussions at the moment on how to step in.

The United Nations was waiting for some form of agreement to be finalized, such as the peace plan set out by the "Group of Eight" big powers, which could lead to a draft resolution that could be presented to the Council, Mr. Opertti said. "There may be merit in this - it will keep up appearances - but there is no doubt that it will not erase, nor will it restore the situation to the status quo from which it should never have departed", he stressed.

But the veto powers wielded by the Council's permanent members-China, France, the Russian Federation, the United Kingdom and the United States-had contributed to the crisis, Mr. Opertti added. The system set up 50 years ago was necessary in a cold-war world, but now needed to be changed to avoid a repeat of the United Nations paralysis over Kosovo.

"The veto is a bad thing because it's a privilege that five members of the Security Council have", he said. In the case of Kosovo, the right to veto had blocked the possibility of the Council authorizing the use of force, since the Russian Federation and China had been against it. The issue of the veto needed to be examined - and most closely by those who had it - with a view towards placing limits on when and how it could be used. Other possibilities included allowing a majority within the 15-member Council to overrule a veto by a single permanent member, Mr. Opertti said.

A working group had been examining reforms to the veto since 1993, but had not been able to find a common ground, the Assembly President stated. "It's very difficult if you have somebody who has a privilege that they would give that up. What we should do is look at it in practical terms of what would work", he said.

Michael J. Glennon is a Professor of Law at the University of California - Davis, Law School, a former Legal Counsel to the United States Senate Foreign Relations Committee, and the author of "Constitutional Diplomacy"