The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force

  • Created : 10.05.2017 22:26
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Most theorists seek the origins of modern institutional legitimacy in legal or moral principles. However, the Security Council (SC) has been inconsistent at best in applying legal principles; its decision-making procedures are not inclusive, transparent or based on egalitarian principles.
The author argues that when governments and citizens look for an authority to legitimize the use of force, they generally do not seek an independent judgment on the appropriateness of an intervention; rather, they want political reassurance about the consequences of proposed military adventures.
The elite pact’s authority depends on the operation of a social norm in which SC approval provides a green light for states to cooperate, whereas its absence triggers a coordinated response that imposes costs on violators.
Article 51 of the Charter affirms the inherent right of states to use force in individual or collective self-defense against armed attacks. In principle, states are not obliged to obtain the approval of the SC for invoking this right.
Before 1990, the SC adopted only twenty-two resolutions under Chapter VII, most of which authorized sanctions rather than uses of force.
Between 1977 and the start of the Gulf War, the SC had adopted only two resolutions under Chapter VII. Between 1990 and 1998, the Council approved 145 Chapter VII resolutions. The number of UN commanded missions that used force beyond traditional peacekeeping principles went from one before 1990 to five thereafter.
In exchange for consent for the U.S intervention in Haiti, China and Russia obtained sizeable concessions, including a favorable World Bank loan and U.S support for peacekeeping in Georgia.
SC may raise the costs of unilateral action but cannot prevent it altogether. William Cohen said about SC authorization for Kosovo: it is desirable, not imperative.
In the absence of obvious alternative sources, the origins of the SC authority are usually assumed to lie in the legitimacy it confers on forceful actions.
He defines legitimacy perceptions as the beliefs of actors that the convention or social norm that the SC authorizes  and forbids discretionary uses of force are those that do not involve direct and undisputed self-defense against an attack.
Most theoretical accounts argue that the legitimacy of international institutions resides in their ability to appear depoliticized by faithfully applying a set of rules, procedures, and norms that are deemed desirable by the international community. The origins of the SC’s legitimacy may lie in beliefs that granting the SC the authority to legitimize force generally lead to more desirable outcomes.
He discusses three variants of this general argument.
1) Legal Consistency
Much legal scholarship assumes that the SC derives its ability to legitimize and delegitimize the use of force from its capacity to form judgments about the extent to which proposed actions fit a legal framework that defines a system of collective security. Although the SC is explicitly a political institution rather than a court, there is a body of customary and written international law that provides a basis for determinations about the legality of self-defense actions and other uses of force.
2) Forum for Deliberation
A second set of scholars claim that while legal arguments are not decisive in the SC, law plays a broader role in the process of justificatory discourse. This view relies on the notion that governments generally feel compelled to justify their actions on something other than self-interest. Or, it may be that governments have internalized standards for appropriate behavior that are embedded in international legal norms.
3) Appropriate Procedures
Citizens may attach inherent value to procedures that conform to principles widely shared in a society. As a consequence, decisions of an institution may be perceived as legitimate even if these produce outcomes deemed undesirable. In a similar vein, accountability, procedural fairness, and broad participation are often seen as inherent elements of the legitimacy of IOs. This assumption underlies the common argument that the main threat to SC legitimacy is that the institution is dominated by a few countries and that its procedures are opaque and unfair. The assertion is that the SC’s decision would carry greater legitimacy if its procedures more closely matched liberal norms, which allegedly have become increasingly important in international society.
Global Public Goods
The SC may help alleviate underprovision and free riding in three ways.
a)      The fixed burden-sharing mechanism for peacekeeping operations provides an institutional solution that helps reduce risks of bargaining failures and lessens transaction costs.
b)      The delegation of decision-making authority to a small number of states may facilitate compromise on the amount of public good that out to be produced.
c)       The SC helps states pool resources.
Interventions authorized by the SC could be perceived as more legitimate in the sense  that they signal a longer-term commitment to global public good production. Although this argument is plausible theoretically, it fails to account for some noticeable empirical patterns.
1)      Arrears of countries constitute a sizeable portion of the total peacekeeping budget. Under the collective action model, the failure of states to meet their assessments gives other states clear incentives to shirk.
2)      The public good rationale does not explain why states value SC authorization even when they do not use its fixed burden-sharing mechanism. The mandates of the various peace-keeping and peacemaking forces in Bosnia, Kosovo and Afghanistan were all authorized at some point by SC resolutions, but none of them are financed primarily through the UN system or executed by the UN.
3)      Decision-making procedures grant veto power to states that contribute little to UN operations and exclude some of the most significant contributors.
Elite Pacts
He quotes Weingast suggesting that the most effective manner to induce limited governance in divided societies is through elite pacts. An elite pact is an agreement among a select set of actors that seeks to neutralize threats to stability by institutionalizing nonmajoritarian mechanisms for conflict resolution. The SC can usefully be understood as such a pact that functions as a focal point that helps state actors coordinate what limits to the exercise of power should be defended.
Elite pacts are imposed following galvanizing events that disturb the beliefs on which a preceding equilibrium rested. Concerts were imposed following the defeat of a hegemon in a major war; a characterization that also fits the formation of the SC in the immediate aftermath of world war II.
During the Gulf War, French president Miterand explained to U.S secretary of state James Baker that SC approval was necessary even if lawyers believed that the intervention was legally justifiable without explicit authorization. He said, 55 million French people are not international lawyers. We need that resolution to ensure the consequences it will entail. Thus Miterand believed that his domestic audience desired reassurance and that SC approval would provide it.
SC approval also will remove suspicions of exploitative behavior.
Elite pacts eschew majoritarian decision making and commonly grant influential actors the power to veto decisions. The goal of elite pacts is stability, not proper procedures.
The process by which compromises in elite cartels are achieved is generally secretive rather than transparent.
SC approval of Australia’s intervention in East-Timor signals that his use of force is legitimate in that it should not trigger a coordinated response by other states.