By Adrian Gallagher and Jason Ralph, POLIS, University of Leeds
On 2 September Anne-Marie Slaughter, formerly Director of the Policy Planning Staff in the US State Department and currently Professor of International Affairs at Princeton University tweeted a link to this article in the Canadian edition of the Huffington Post.
The article, ‘Our Response to Syria Must Be Effective, But Also Legal’ by Irrwin Cotler and Jared Genser argued that the atrocities in Syria should prompt intervention but that the likelihood that the intervention would be legal was next to zero because of a Russian veto on the Security Council. They argued, however, that there is ‘another creative way forward that will provide legitimacy and legality for international action’ and this centered on the so called “Uniting for Peace” Resolution, which the UN General Assembly adopted in 1950 in response to Soviet objections to providing support to South Korea during the Korean War.
The Uniting for Peace Resolution (Resolution 377) stipulates that although the UN Security Council has ‘primary responsibility’, it does not have ‘exclusive responsibility’ under the UN Charter for peace and security matters. It states that if the Security Council reaches a political deadlock over a certain issue then the issue can be referred (by a majority vote within the Security Council or the General Assembly) to the UN General Assembly which can then make recommendations. For Cotler and Genser writing about the Syria situation this provides ‘a clear path forward’. Anne-Marie Slaughter tweeted that the idea was an interesting one. We agree, up to a point.
A Uniting for Peace Resolution will not provide the US with the legal green light many commentators desire but it would strengthen the legitimacy claims being made by the US (assuming the vote went its way of course). This was recognised by the International Commission of on Intervention and State Sovereignty (ICISS) in its 2001 report, which of course contributed to international society’s adoption of the Responsibility to Protect (R2P) at the 2005 World Summit. Although the World Summit Outcome Document is clear on the centrality of the Security Council to any decision to use force the ICISS (2001, p.48) explained that ‘an intervention which took place with the backing of a two-thirds vote in the General Assembly would clearly have powerful moral and political support’. This statement highlights that whilst the General Assembly does not have legal authority it can bestow legitimacy. Any such resolution could again take the ICISS report as its guide and be worded as a criticism of the veto power rather than any particular state. For further discussion see Gallagher’s Genocide and Its Threat to Contemporary International Order (Palgrave 2013) pp.135-6.
There is a further point to add to this conversation. Following the right procedure and being able to claim majority support is an important part of any legitimacy claim, but it does not provide the politician with absolute legitimacy. As Emeritus Professor at the University of Manchester Norman Geras recently argued ‘not every democratic decision is just, and neither is every existing de facto law’. This reminds us that the Security Council, and in some senses the veto, is still important because it warns us about authorizing force when the superpowers disagree. It is unlikely that Syria is another Korea where the US did find itself set against an (emerging) superpower but the point is that a realist ethic of prudence might influence attitudes toward the mandate provided by a majority of the Security Council and/or General Assembly. Equally, one might argue that a vote in the Security Council and the General Assembly against US intervention could lack legitimacy if that intervention could guarantee an end to the humanitarian suffering. As Ralph recently wrote, one can make a strong argument that a military intervention to stop the Rwandan genocide would have been legitimate ‘even if it went against the expressed will of the Security Council.’
The key point here, however, is that a state cannot ‘maximise’ legitimacy by ignoring procedural concerns, especially in cases that are not as clear cut as the Rwandan case. A lot of people who accept that international society has a responsibility to protect the citizens of other states genuinely do not know whether military action is the most appropriate course of action in Syria. This is a difficult case and because of that any claim that the right course of action can be found in moral principles that are self-evident is dubious. This inevitably ‘raises the bar’ for any statesman who wants to claim legitimacy. Obama has done that by going to Congress, which he described as ‘a pretty big idea’. This might be big in the US but it is not enough to bestow international legitimacy. He now needs to address others in what Christian Reus-Smit calls ‘the social constituency of legitimation’. He needs in other words to consult with international society. He needs to propose and vote on a resolution at the Security Council and, possibly, the General Assembly.
Also by the authors:
Adrian Gallagher ‘A Clash of Responsibilities: Engaging with Realist Critiques of the R2P’, Global Responsibility to Protect, 4 (2012) 334-357.
Jason Ralph ‘The Liberal State in International Society’, International Relations online first 2013.
Jason Ralph ‘No longer special? Britain and the United States after Iraq’, International Politics 50 (2013), pp.333-359.