Is UN Approval on Syria Imperative?

Yale law professors Oona Hathaway and Scott Shapiro argue that it is in a New York Times op-ed:

 If the United States begins an attack without Security Council authorization, it will flout the most fundamental international rule of all — the prohibition on the use of military force, for anything but self-defense, in the absence of Security Council approval. This rule may be even more important to the world’s security — and America’s — than the ban on the use of chemical weapons.

They are correct, of course, that evidence that Syria has used chemical weapons against its own citizens does not give the United States the legal right to engage in military action. I am a little less persuaded that bypassing the UN is as costly as they claim it is. Hathaway and Shapiro argue that the UN system deserves a lot of credit for preserving a norm that force is not a legitimate response to violations of legal rights:

For all its obvious failings, the United Nations system has made for a more peaceful world than the one that preceded it. No leader may claim the right to collect debts or gain thrones by going to war. States may fracture into smaller pieces, but they don’t get conquered. Gunboat diplomacy is also out of the question.

It is accurate that, as Martha Finnemore put it, the purpose of military interventions has changed over the course of history. It is much less clear how much of this is due to the UN system. Hathaway and Shapiro counter some of the obvious criticisms to that claim:

Others say it is legalistic, even naïve, to rely on the United Nations Charter, which has been breached countless times. What is one more, especially when the alternative is the slaughter of innocents? But all of these breaches add up — and each one makes it harder to hold others to the rules. If we follow Kosovo and Iraq with Syria, it will be difficult, if not impossible, to stop others from a similar use of force down the line.

You could add to this list of breaches any Soviet or U.S. intervention during the Cold War with the exception of the Korean war, which was authorized when the Soviet Union was temporarily absent from the Council in protest to the exclusion of the People’s Republic of China from the Security Council (Taiwan held the China seat at that time). As I have argued elsewhere (ungated, gated), the Security Council only started playing something that looked like its envisioned role after the relatively successful collaboration in the first Persian Gulf War. There is no evidence, for instance, that the U.S. even thought about seeking UN authorization for its intervention in Panama in 1989. The UN General Assembly voted that this intervention constituted a “flagrant violation of international law” but there is no indication that this mattered. President Ronald Reagan famously quipped about a similar UN vote on the U.S. intervention in Grenada that it “didn’t upset my breakfast at all.”

The point is not that it was right for the U.S. to circumvent the UN or to engage in the interventions that it did but that the UN cannot plausibly take credit for changing norms of intervention during the first 45 years of its existence. The UN was thoroughly dysfunctional in the area of conflict management. The end of the Cold War and the Gulf War experience made the UN more active. States saw domestic or international political benefits from asking for Security Council approval. Yet, there is no record of the UN actively restricting states from using force, let alone the United States. The U.S. either forged UN approval by threatening to go it alone or it went ahead without approval. It is not clear how avoiding the UN on Syria adds much information that should lead to substantial changes in beliefs about who will follow what rules.

I really wished there were a functional set of legal norms and institutions that could regulate the use of force. There are some norms that are obeyed and enforced quite well, such as the norm of territorial integrity. But the Charter system is dysfunctional as a legal system. Aside from the obvious problems with having five permanent veto powers that can block any collective action, the self-defense exception is prone to opportunism. Ever wonder, for instance, how the U.S. justifies its drone strikes in Pakistan, Yemen, and elsewhere? Well, we have declared a war on terror, which make these strikes acts of self-defense. One can agree or disagree with the validity of this argument but ultimately it matters little because there is no international legal institution with the jurisdiction to evaluate the merit of the claim (let alone enforce a negative finding).

The conventional wisdom is that UN authorizations are desirable but not imperative to U.S. foreign policy makers. This conclusion strikes me as correct. If you can get multilateral approval it is easier to get allies to support your actions and your domestic public may view an action as less costly and more likely to serve a good purpose. Multilateral interventions may also be more likely to succeed. It is worth compromising to get UN approval. In reality, however, the international legal system that regulates uses of force is not sufficiently functional to make UN approval imperative.

ps. Just to be clear: the point of this post is not to say that we should bomb Syria. It is an argument about the consequences of avoiding the UN if the U.S. decided to go this route.

ps2. Dan Drezner makes a similar argument here.

6 Responses to Is UN Approval on Syria Imperative?

  1. Andreas Moser September 4, 2013 at 12:12 pm #

    The veto at the UNSC works both ways.
    If Russia and China can block any coordinated action on Syria, then France, the Uk or the US can also block any condemnation of such an action by them, any of them or any combination of them.
    Therefore, if we don’t get UNSC approval, nothing will happen: And if nothing will happen if you break it, it ain’t real law.

  2. Mihai Martoiu Ticu September 4, 2013 at 12:28 pm #

    To solve this problem at least one of the following three things should be done:

    1) Abolish the veto right, or make the voting somehow override it. For instance thirteen ‘yes’ votes could override the veto.
    2) Give the International Court mandatory jurisdiction in cases of military force. The ICJ should have the last word whether a case of military force was legal or not.
    3) A new treaty should lay down the rules of humanitarian intervention (or R2P-rules)

  3. Mihai Martoiu Ticu September 4, 2013 at 1:50 pm #

    By the way. Even if the law is violated regularly, this is no reason to keep violating it, nor is it a reason to disqualify those that are concerned that the violations will result in more violations.

    Imagine that a cataclysmic catastrophe destroys much of the Earth. Most of the continents sink beneath the waters and a new continent arises from the ocean. A group of people from all over the world survive the catastrophe and colonize the new continent.
    For a while, there is no state, there are no laws, no judges and no courts. At one point I propose to make a law prohibiting murder. Everybody agrees with me. In the years after the law is enacted, the murders continue as before. I tell the others: “Guys, please stop murdering people, because the law forbids it. Moreover, violating the law could result in even more murders and that is against my legitimate interests and against the common good.”

    In such a case the best argument should seek a way to make people respect the law, instead of arguing that the law does not matter because people violate it regularly.

  4. Mark September 4, 2013 at 4:23 pm #

    One of the few good things about the debate on intervention (I oppose it) is that it reinforces the bipartisan American consensus that the UN and international law can and should be ignored – it is American national interests that count. It’s a nice subject for op-eds and academic journals for law professors but the UN and its Charter has little relevance to real world decisions. In that we join the rest of the world. For the past 70 years, since the founding of the UN, countries make those decisions based upon their national interests. If those decisions coincide with the UN Charter fine and if the UN can be manipulated to support those interests fine, but in the end it is national interests that are paramount. Thank goodness.

  5. eric September 5, 2013 at 12:20 pm #

    It could be the main reason TODAY countries like the US oppose chemical/biological weapons is NOT that they are particularly good weapons on the modern-day battlefield. Many really horrible ways of killing people now exist that are not considered chemical or biological weapons (but which are much more controllable than chemical or bio weapons).

    Rather, it might be that such weapons can be relatively cheaply acquired (by non-major powers or non-state actors) and can be used effectively against “friendly” civilian populations (because they can be easily transported, hid, and deployed). It is not that chemical weapons are uniquely horrible, but they enhance the relatively military might of state and non-state actors the US opposes. The US, and other countries, likely want to keep these types of weapons as taboo, and the arguably over-reaction to the use of chemical weapons in Syria is more about trying to keep them taboo than anything else.

    Indeed, if the goal is mostly to keep them taboo (not because they are uniquely horrible but because they would enhance the power of non-US actors) it doesn’t really matter who actually used them in Syria! Punishing the actual “evil doers” is less important than the public demonstration that chemical weapons are “just not acceptable by civilized people.” So whether the Syrian government used these weapons or the rebels used them really doesn’t matter from the point of view of the US. It doesn’t matter who is punished, just that moral outrage be expressed and military punishment dealt out.

  6. Brett Champion September 21, 2013 at 8:14 am #

    Is UN approval for an attack on Syria imperative? No. Is it even important? Again, no.

    I know of no rational person who believes that the UN is anything other than another forum in which the member-states pursue their own national interests. This is especially true of the Security Council. The UN is not a neutral arbiter of what is and isn’t legal under international law. It has no authority independent of its members.

    What matters is not what the “UN” says or does, but what the other states who could actually stop or seriously hinder any US operation say and are willing to do.