International law and America’s anti-UN prejudice

BY AKBAR OTHERS<

In his column last week, Adam White alleges that opponents of non-U.N. sanctioned military action against Iraq perceive the Security Council as just an attempt to mimic American federalism on the international level. This allegation, while appealing perhaps to those readers of The RECORD who have no background in international law, is wholly inappropriate. For support, White relies heavily on a 50-year-old opus by Morgenthau, a work that, then as now, reflects more what some political scientists would like international law to be rather than what it actually is, as practiced by states and understood by international lawyers. The Security Council was never meant to govern a united humanity under one constitution, but rather was created — under American guidance — to contribute to the maintenance of international peace and security on behalf of those sovereign states that choose to join the UN.

White describes the UN as a pseudo-legislative body that his “misguided opponents” see as “a qualitative peer of [the U.S.] Congress.” Apart from a very narrow class of General Assembly budgetary decisions and some Security Council resolutions related to the preservation of international peace and security, U.N. documents do not bind its members. This is hardly a design for a legislature (indeed, the U.N. was never supposed to be one). White resents formalism, but before putting pen to paper he should have read something about the U.N.’s history, or at least studied its Charter.

Certainly, in many ways, the U.N. structure seems outdated, especially as regards the composition of the Security Council. Let us not forget, however, that every time there emerged an opportunity to reorganize it, the U.S., among others, resisted the reform. Indeed, the U.S. has, arguably, contributed to arresting the evolution of the U.N. more than any other member state, whether through its refusal for decades to participate in the activities of key U.N. bodies, like UNESCO, or by withholding its membership dues. The pseudo-legislative characteristics that White imputes to the U.N. should be far less obvious from the U.S. perspective than from the point of view of other, less influential states.

White urges us to believe that the GATT and NAFTA are “contracts between discrete groups of members all conscious of their limited applicability and enforceability,” while the U.N. Charter is not. This is confusing. Not only is it not at all clear what White understands “discrete” groups to be, but he also appears to suggest, quite incredibly, that treaties providing for profound structural changes in member states’ domestic practices are more “limited” in their “applicability” than a treaty establishing an organization charged with little more than promoting the conditions for inter-state co-operation.

By saying that states exist in the state of nature, does White subscribe to a Hobbesian vision of the international society? Does he suggest that if he complains about the violation of his rights abroad, he should be listened to not because of the protection which international law affords him, but because otherwise someone may send B-52s over?

White’s jurisprudential approach is even more questionable than his view of the international order. His apparent refusal to imagine a legal order that proceeds without a Leviathan and his talk of the law existing because the state “put[s] a gun to the head of the citizen” betray a failure to appreciate the development of the legal thought that occurred since Austin’s days.

Since White did not actually show up for the screening of Coverup: Behind the Iran-Contra Affair three weeks ago, he may need to be advised that this 1988 documentary is not anti-Reagan propaganda — the former president is not even the main object of attention — but rather an examination of a political crisis that sent shockwaves through the international community and inspired vigorous Congressional debates. Obviously not appreciating this, White hints it is “unfitting” for “international law students” to consider this documentary at this stage of international law’s development. Did the Iran-Contra affair not address the issues singularly relevant to international law: diplomatic hostage-taking, illegal arms trade, trans-boundary support of terrorist movements?

White’s column wallows in its parochial ignorance about international law. If he had a subtler understanding of it (process, estoppel, custom) or of America’s own history of foreign policy, he would understand that his conception of international law — which he incorrectly assumes is also America’s — is both unworkable and illusory.

We, the authors of this piece and those who join us in signing it, are perfectly aware that students at one of the world’s leading international law schools, who embrace the study of history, politics, and international relations, may hold opinions about the current international crisis that conflict with some of our own. Indeed, we hope this is the case. However, we believe these opinions should be presented with a firmer scholarly foundation than the opportunistic spin which White offers.

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