Academic journal article Chicago Journal of International Law

Platonism, Adaptivism, and Illusion in UN Reform

Academic journal article Chicago Journal of International Law

Platonism, Adaptivism, and Illusion in UN Reform

Article excerpt

In July 2003, on the heels of the American invasion of Iraq, United Nations Secretary-General Kofi Annan held an extraordinary press conference. At it, he wondered aloud "whether the institutions and methods we are accustomed to are really adequate to deal with all the stresses of the last couple of years."1 He warned that we are "living dirough a crisis of the international system."2 "What are the rules?" he asked.3 Four months later he proceeded to appoint a group, the "High-Level Panel on Threats, Challenges and Change," to recommend ways of "strengthening the United Nations so it can provide collective security for all in the twenty-first century." The High-Level Panel ("Panel") consisted of former governmental officials and in pursuing its task met at various locations around the world. Hopes ran high that its ideas would breathe new life into an organization that needed, in Annan's words, "radical change."5 In December 2004 it issued its report,6 which has since become the focal point of efforts at UN reform.

For a Burkean pragmatist with any sense of institutional conservation, malting the most of the United Nations is a useful project. Massive amounts of capital-financial and otherwise-have been invested in the organization over the past sixty years. To the extent possible, humanity should profit from its investment. Even if the objective were merely to advance individual states' national interests, the UN might be a useful tool for doing so. In any event, it is hard to fault an organization that recognizes the need to reform itself, especially one that has borne the hopes of humanity so heavily as has the United Nations.

Sadly, however, the core recommendations of the Panel's report with respect to the use of armed force rest upon wishful thinking rather than empirical evidence. The report evinces a view of a world governed by objective, universal morality' rather than by competition for power and shifting national interests. It treats substantive problems as language problems, suggesting that a new vocabulary will eliminate underlying differences. Historical context is either missing or incorrect. The report, in short, exhibits all the familiar shortcomings of old-style Platonic idealism, ignoring the real-world incentives and disincentives to which states actually respond.

The Panel offers no interpretive methodology to support its conclusions concerning the current meaning of the UN Charter. Its findings are offered ipse dixit. Commentators have offered a methodology to support those conclusions, however, that might be referred to as radical adaptivism. Under this approach, it is permissible to infer changes in the Charter's limits on use of force that are based upon security Council practice. This methodology suffers from serious defects, foremost among them being a free-wheeling, outcome-oriented mode of analysis that abandons all fidelity to limitations set out in the text, views interpretation and amendment as interchangeable, and exhibits a lack of commitment to the notion of limited power and the rule of law.

I. USE OF FORCE

The Panel's core recommendation is twofold, addressing when force may be used and when force should be used. Force may lawfully be used by states, the Panel declares, only in response to an imminent threat or pursuant to security Council authorization.8 Force should be used, by states or by the security Council, only when its use is legitimate. "[A]nyone . . . involved in these decisions" should be guided by five "criteria of legitimacy" before using force: (1) whether the threat is sufficiently serious, (2) whether the purpose is proper, (3) whether every nonmilitary option has been exhausted, (4) whether the military action is proportionate to the threat, and (5) whether there is a reasonable chance of success.9

Many problems inhere in this approach, foremost among them that unless the Security Council approves, a state would not be permitted to use force against a serious and likely threat until it becomes imminent. …

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