Tuesday, April 25, 2006

The UN Steps Up to the Plate (Kind Of)

The UN has decided to impose sanctions on 4 Sudanese accused of abuses in Darfur. The sanctions consist of a travel ban and a freezing of assets abroad. The resolution, sponsored by the US, passed by a 12-0 vote, with Russia, China, and Qatar abstaining.

I don't think this will do much to end the suffering in Darfur or to stem the conflict as it expands into Chad. But, getting Russia and China (Qatar, lacking a veto, doesn't matter one way or another) to abstain is a major triumph. We can only hope that this will create pressure on the two permanent members to vote similarly the next time Sudan is before the Security Council.

Does this mean that the UN is now relevant and meaningful. No. Of course not. We'll see what happens when the Security Council is asked to authorize a UN or NATO deployment of peacekeepers to Darfur. I'm not holding my breath. Nor should the poor people of Darfur.

7 comments:

Patrick S. O'Donnell said...

Dear Professor Weinberger,

[Per your request, I've transferred my comment from Opinio Juris (with some additions and a correction) to your blog so as to allow a response.]

Please, pray tell, what are the sanctions that might be invoked by the Security Council if not ‘compliance-’ or ‘enforcement mechanisms’? How would you explain the following?

‘Under Chapter VII of the Charter, the Security Council can take enforcement measures to maintain or restore international peace and security. Such measures range from economic and/or other sanctions not involving the use of armed force to international military action.

The use of mandatory sanctions is intended to apply pressure on a State or entity to comply with the objectives set by the Security Council without resorting to the use of force. Sanctions thus offer the Security Council an important instrument to enforce its decisions. The universal character of the United Nations makes it an especially appropriate body to establish and monitor such measures.

The Council has resorted to mandatory sanctions as an enforcement tool when peace has been threatened and diplomatic efforts have failed (see below). The range of sanctions has included comprehensive economic and trade sanctions and/or more targeted measures such as arms embargoes, travel bans, financial or diplomatic restrictions.

At the same time, a great number of States and humanitarian organizations have expressed concerns at the possible adverse impact of sanctions on the most vulnerable segments of the population, such as women and children. Concerns have also been expressed at the negative impact sanctions can have on the economy of third world countries.

In response to these concerns, relevant Security Council decisions have reflected a more refined approach to the design, application and implementation of mandatory sanctions. These refinements have included measures targeted at specific actors, as well as humanitarian exceptions embodied in Security Council resolutions. Targeted sanctions, for instance, can involve the freezing of assets and blocking the financial transactions of political elites or entities whose behaviour triggered sanctions in the first place. Recently, smart sanctions have been applied to conflict diamonds in African countries, where wars are funded in part by the trade of illicit diamonds for arms and related material.

On 17 April 2000, the members of the Security Council established, on a temporary basis, the Working Group on General Issues on Sanctions to develop general recommendations on how to improve the effectiveness of United Nations sanctions. The proposed outcome document remains under active consideration, with focus being placed on those issues where agreement has yet to be reached.’

Now let’s treat the attempt to use the criterion of compliance or enforcement mechanisms in the determination of whether or not the UN is a ‘meaningful institution.’ I find this deeply implausible for any number of reasons, some of which I’ll mention here. First, I suppose you would characterize such functions and practices undertaken by the UN as ‘meaningless:’ preventive diplomacy, peacemaking, peacekeeping, peace-building, and peace enforcement. Second, I trust the ‘good offices’ role of the Secretary-General as it has emerged and evolved since WW II would not be deemed meaningful by your criterion. Presumably you’ve read Thomas Franck’s wonderful treatment of this ‘good offices’ role in his Fairness in International Law and Institutions (1995), for you’re the expert here and I’m simply someone with an ardent avocational interest in such matters. The presumption secured, I shudder to imagine what the world would be like had not the Secretary-General taken seriously and well-exercised this role (sure, there were failures and setbacks, but the final accounting as narrated by Franck is quite encouraging). Furthermore, I suppose the verifying of peace agreements, the monitoring of the implementation of human rights accords, the supervision and monitoring of democratic elections, the training and oversight of police forces, overseeing withdrawal and demilitarization arrangements, and assistance in de-mining operations, are all bereft of ‘meaning.’ And international tribunals and the International Criminal Court are likewise without meaning? And the International Court of Justice? And the organization of humanitarian aid or assistance? I suppose we might also cavalierly dismiss the role of the UN in the promotion, entrenchment, and protection of the ‘thicket of norms, processes, and institutions’ associated with human rights.

The ‘revisionist states’ terminology is as unhelpful as the prior appellation ‘rogue states.’ It is ‘essentialist’ in the worst way. No state can remain a state in any ‘meaningful’ sense without participating in some measure within the international web of institutions, the Westphalian system itself being an integral part of that web. Unbundling, with Stephen Krasner, the notion of sovereignty into various ideal-types (domestic, interdependence, international legal, and Westphalian, for example) instantiated by degree, together with the assessment of regime practices according to criteria derived from human rights discourse and democratic theory and practice, would be far more meaningful, both descriptively and normatively speaking than reliance on a sanctions criterion as the sole means by which we assess the effectiveness of the UN, and international law, for that matter.

Mention of the WTO brings to mind Edward Kwakwa’s distinction between ‘paradigm-setting States’ and ‘paradigm-receiving States’ with regard to determining ‘the content of the rules by which the international economy must operate,’ the former ‘exemplified by the United States and other highly industrialized economies.’ In Kwakwa’s words, ‘the WTO in fact presents the [latter States] with a reasonably good forum. The problem, however, is that the P-RSs simply do not have the means or the ability to influence the process’ (cf. Lori Wallach, Patrick Woodall, and Public Citizen [sic], Whose Trade Organization? A Comprehensive Guide to the WTO, New York: New Press, 2004).

With respect to China, readers might begin any discussion of the US attempt to ‘enmesh China within that institutional web’ (the hallowed ‘status quo’) with the kind of background knowledge so ably provided by Randall Peerenboom, in particular, his China’s Long March Toward Rule of Law (Cambridge, UK: Cambridge University Press, 2002).

My general perspective is akin to that found in Brian Urquhart's review essay of recent titles on international law in latest issue of NYRB (see Chris Borgen's post at Opinio Juris). That may be an 'appeal to authority,' as they say in informal logic, but in this case I think deference to expertise is warranted provided one understands it as an appeal the argument made by Urquhart.

Best wishes,
Patrick

stefan moluf said...

Mr. O'Donnell,

I won't try and argue with you at a high level, because I know you'll run circles around me, so hopefully I can bring the discussion down to my level.

I think the question of the day is, "Do these targeted sanctions improve the situation on the ground in Darfur?" I offer that all the targeted sanctions in the world won't stop the Janjaweed, who are under indirect government control only, from continuting their persecution. While we would all like to avoid the use of force if at all possible, I believe this is a case where trying all of the alternatives is far worse than going directly to military intervention (logistical problems associated with that aside). The U.N. is simply not capable of taking action quickly enough (or maybe at all) in this regard, and in this narrow sense, it truly is "meaningless."

Patrick S. O'Donnell said...

Dear Stefan,

Please read the bracketed remarks for an explanation of my letter: it is not in response to his post here but in response to a comment left at Opinio Juris (see Chris Borgen's post there: 'Responsible Stakeholders and Revisionist States') which Seth asked me to post over here (under any material having to do with the UN). Therefore, I am not here directly addressing anything having to do with the bleak situation in Darfur.... So feel free to comment on Seth's post but please don't make any inference to the effect that my letter is in response to same...it is not (again, it is here at the request of Seth).

Seth Weinberger said...

Mr. O'Donnell:

Just wanted to let you know that I will respond tomorrow. Today is my busy day as I teach 3 classes...but I will post a response here tomorrow.

Best...

Seth Weinberger said...

Mr. O'Donnell:

OK...here's my response.

Of course it is true that the UN can be a very useful and effective institution. The things you mention like sanctions, peacekeeping, diplomacy are all obvious examples. However, those things do not mean that the UN is an effective, meaningful institution. You must distinguish between coincidence of interest and real institutional cooperation. When powerful states all want the same thing, an institution can help solve collective action problems and reduce transaction costs, making it easier for them to work together. But for an institution to be meaningful it must force its members to comply with its obligations even when the members have a strong short-term interest to defect. Thus, the real question is not whether the UN is effective much of the time but whether the UN is effective when the chips are down, and there the record is poor to say the least. Where was the UN during the Bosnian war or the ethnic cleansing of Kosovo? Where was the UN during the Rwandan genocide? What is the UN doing in Sudan or Darfur? How effective will the UN be in reining in the North Korean or Iranian nuclear programs?

The other institutions you mention as being meaningful -- the ICC, the ICJ -- suffer from the same problems. All of these institutions cannot force states to join them and cannot enforce their rules and obligations on states that choose to violate them. When they do work it is either that the powerful states have taken enforcement into their own hands or that the issue at stake is of low strategic import.

Ultimately, the way I was using the word "meaningful" was less about the issue-specific application of an institution and more about the structure of the institution and its ability to connect states together in a web of enforceable obligations. This is all part of a theory of the role of international institutions in helping states read signals of preference and intent from other states. The theory is one that I've been working on, and published an article about last year. The article is entitled "Institutional Signaling and the Origins of the Cold War," in the journal "Security Studies" (vol. 12, no. 4, summer 2003). If you'd like to read this article to see my argument about what makes an institution "meaningful" I'd be happy to send you the article.

Patrick said...

Seth,

I won't attempt to defend the failures of the UN, or even its performance 'when the chips are down,' except to note that often the failures here can be traced back to the lack of leadership from the US on the Security Council (see, for instance, Kevin's post today at Opinio Juris): some failures have largely structural origins but the role of big power states on the SC means its effectiveness is often dependent on the goodwill of such states, hence I'm reluctant to blame the UN as such, rather, responsibility and accountability can be traced back to individual states. It goes something like this: the US refuses to cooperate or provide proper leadership for the Council based on the Charter, democratic principles, etc.; it stands by (or gets in the way) while the UN attempts to accomplish some goal without US cooperation; it invariably fails or falls short; the US then says, 'See, I told you we can't rely on the UN, we're perfectly justified in acting unilaterally,' etc., etc.

Will the Security Council be able to do anything about the Bush administration's endeavors to upgrade its nuclear arsenal in violation of (at least) the spirit of the Nuclear Non-Proliferation Treaty? No. Did the Security Council do anything about Israel's development of nuclear weapons? No. Will it be able to do anything about North Korea's possession a nuclear weapon? Perhaps, given that the US has voiced its concerns. There are many problems with the Nuclear Non-Proliferation Treaty, and the actions of the US of late have only exacerbated those problems (Richard Falk has ably written about this). It is not clear to me that Iran is committed to developing nuclear weapons and has in fact stated it simply wants nuclear energy. Where was all the hoopla about nuclear weapons when Israel decided to heavily arm itself with same? Surely this was a momentous step in the 'de-stabilization' of the Middle East. Countries like Iran do not respond well to 'bullying' and compulsion, given their historical experiences with imperalism. Our criticisms of the UN show how much we've come to expect from it in a comparatively short time. And its effectiveness has clearly grown over time and there's no reason to be pessimistic as regards its possible progressive evolution, given internal reforms and a change in behavior of states like the US, a state apparently more concerned about getting the UN to do its bidding than in real transnational institutional cooperation of a quasi-democratic sort. It's a bit premature to definitively evaluate the ICC, given that it hasn't been around very long (the French Revolution was a disaster judged according to the Jacobin terror, but in the long run and in the big picture I think we would have a rather more positive assessment [don't infer from this a moral apologia on behalf of such revolutionary violence]). Again, I think we can address the stuctural shortcomings of the UN, but it will require in part for the US to demonstate its full-fledged commitment to international law, human rights, and global democratic principles and practices. As Antonio Cassese has written, 'It is apparent...that since it came into existence the UN has often failed in three areas: (a) maintenance of peace and security, (b) disarmament, and (c) bridging the gap between industrialized and developing countries. However, it would be disingenuous to apportion the blame to the UN itself.' And whatever its failures and shortcomings, we would do well to appreciate, again with Cassese, that 'what the UN has done in the fields of decolonization, human rights, protection of the environment, development of international law, a furthering a set of new community values (such as the principles of jus cogens) constitutes a great legacy.' Not unlike individuals, states can draw on various sorts of motivation to engage in cooperative behavior and the resort to punitive measures should reflect the exhaustion of non-coercive incentives. As Plato thought the case with individuals, at some point the realization will be made that acting in one's true self-interest will be identical with 'moral' behavior.

And yet I prefer a world with the UN in it rather than the converse, believing its shortcomings are not irremediable. At the same time, I hardly see it as a panacea for everything that ails the international community. I am convinced, however, that inveterate and recalcitant 'UN bashing' gets us nowhere, indeed, it creates a climate of cynicism and unhealthy scepticism that serve to act on the order of self-fulfilling prophecy.

I'm sure my reply leaves us poles apart, but perhaps we can better discern the nature of the terrain between us.... I do not subscribe to the 'realist' school of international politics, being rather fond of the critique intitiated by Charles Beitz and others. Nor do I endorse the doctrine of double moral standards (i.e., one standard for political and collective conduct, and one--invaribaly stricter--for one's personal life and intimate affairs). Related to this, I also find the 'dirty hands' thesis ethically untenable. I suspect, therefore, that our poles are planted on terra firma of rather different soil types (presuppositions, assumptions and premises), leaving us that much less prone to persuasion by the other's argument.

That said, yes, please mail me your paper, I'd like to read it.

All the best,
Patrick

Seth Weinberger said...

Patrick:

You write that: "[you] are reluctant to blame the UN as such, rather, responsibility and accountability can be traced back to individual states." Yes, of course. But that means that the UN is blameworthy for assuming responsibility for that which it can not manage. The UN was created for two main purposes: to protect and promote sovereignty in the era of de-colonization, and to help avoid large-scale international war. And while it does fairly well at the former, its record on the latter is shaky at best.

But the UN's mission has changed. As you write later: "our criticisms of the UN show how much we've come to expect from it." And that's exactly the problem. Why should we expect anything from the UN? Is it democratic? Only in the crudest sense of the word that every state has its say and is treated, with the exception of the veto holders, equally. Is it liberal? No. Are its rules binding and enforceable? No, not independently of the powerful states. The UN is structurally incapable of dealing with the kind of problems you believe it should deal with. So whence that belief?

The best explanation is that as a universal forum the UN has obtained a degree of legitimacy that promotes such expectations. That is to say that the legitimacy you ascribe to and desire from the UN flows from its inclusiveness. But that inclusiveness runs counter to the very norms the UN is now supposed to uphold. That's why Sudan ends up on the Human Rights commission, and why, as I blogged about a day or two ago, Iran can become vice-chair of the Disarmament Commission. That's why victims of genocide pray that the US has a strategic interest in the region and will come save them; wishing and waiting for the UN is a fool's errand.

I do not believe that the UN has legitimacy, because it is incapable of enforcing its own norms. Legitimacy can only flow from an ability to pursue desired norms. In an established domestic system, those norms can best be acheived by adherence to procedural rules. which is why procedural justice tends to be supreme in a domestic system. But since procedure cannot function effectively in an international system lacking a legislature, judiciary, and enforcement power, adherence to procedure cannot trump other concerns. So, yes, the UN is sometimes useful as are all kinds of other international institutions. But no, I do not give it some kind of legitimacy and I do not expect it to be capable of solving those problems for which it is not designed.

I'll be happy to email you my paper...I just need an email address from you.