Precommitment Regimes for Intervention: Supplementing the Security Council

Article excerpt

As global governance institutions proliferate and become more powerful, their legitimacy is subject to ever sharper scrutiny. Yet what legitimacy means in this context and how it is to be ascertained are often unclear. In a previous paper in this journal, we offered a general account of the legitimacy of such institutions and a set of standards for determining when they are legitimate. (1) In this paper we focus on the legitimacy of the UN Security Council as an institution for making decisions concerning the use of military force across state borders. The context for this topic has changed over the last decade as a result of the ongoing development of the responsibility to protect (RtoP) doctrine and extensive discussions about it in the United Nations. Yet the mostly widely accepted proposals for RtoP still require Security Council authorization for forceful intervention, and strictly limit the conditions under which such intervention may take place.

The world currently lacks reliable multilateral arrangements both to prevent humanitarian disasters and to protect fragile democratic governments against coups and other violent attempts to overthrow them. We are particularly interested in the protection of fragile democracies. It is a valid question whether democratic publics should rely on the Security Council, with its particular composition and permanent member veto, to serve as their principal external guarantor. We argue that the Security Council is a legitimate institution for making these decisions, but that it does not possess unconditional exclusive legitimacy. That is, under some conditions, multilateral coercive intervention to resolve a humanitarian crisis or to counter the use of violence against democratic governance could be legitimately authorized through other means. Nevertheless, the dangers of unilateral intervention, or intervention by a relatively small set of powerful states, are sufficiently great that these other options should be quite carefully restricted. In the final section of this paper we evaluate proposals for institutions other than the Security Council to authorize the multilateral use of force. We are skeptical about the authorization of force by a democratic coalition, but we look with more sympathy on the idea of establishing "precommitment regimes." Such regimes would enable states to preselect groups of other states to intervene legally, without Security Council authorization, in cases of well-defined contingencies involving threats to struggling democracies or major violations of human rights.

To begin, we set out a conceptual framework for assessing the legitimacy of the Security Council. We distinguish between normative and sociological legitimacy and between justice and legitimacy, and we explain the distinctive practical function and value of legitimacy assessments. We then proceed to discuss the legitimacy of Security Council action, concluding that, despite some serious flaws, the Security Council is arguably a legitimate institution for making decisions regarding the use of force across borders.

Next we focus on the problem of Security Council inaction. This problem became salient in the 1990s in the context of such humanitarian emergencies as those in Somalia, Bosnia, and Rwanda. These concerns led to a now famous report, The Responsibility to Protect, (2) and to almost a decade of discussions in the United Nations about the principle of the responsibility to protect and how it should be implemented. These discussions culminated in a three-day debate in the UN General Assembly in July 2009, which has provided a clear indication of the support of most UN members for the principle of RtoP as interpreted by Secretary-General Ban Ki-moon, as well as the range of concerns and objections to its institutionalization. RtoP may ultimately lead to broader international agreement on the conditions under which humanitarian intervention is justified, but it does not resolve a crucial issue: whether, if the Security Council refuses to act due to the exercise of a Great Power veto, other means may legitimately be used to authorize the use of armed force. …