North Korea Folds

"North Korea says it will not retaliate despite 'reckless provocations' from the South, which held live-fire drills on the flashpoint island of Yeonpyeong. The North shelled the island last month after similar drills and had threatened more retaliation this time. But state media quoted the army as saying it was 'not worth reacting. UN Security Council talks ended without a deal on the weekend, reportedly after China refused to agree to a statement critical of its ally, the North.'"

BBC 12.20.2010

Facebook, Territory, and the Demos

"The reason we think that territorial or historical or national groups ought make decisions together is that, typically if not invariably, the interests of individuals within those groups are affected by the actions and choices of others in that group. Those common reciprocal interests in one another’s actions and choices are what makes those groups appropriate units for collective decisionmaking, at least in a rough-and-ready way.  Rough-and-ready, because (as flagged by the recurring qualifier, 'typically if not invariably') the correlation between territoriality or nationality or history and shared interests is far from perfect. Not every person who lives in a given territory is affected by the actions and choices of every other person in that territory; not every person in the territory is affected by every collective decision of the demos constituted on the basis of residence in that territory. Ditto for historical or national groups. Constituting a demos on the basis of shared territory or history or nationality is thus only an approximation to constituting it on the basis of what really matters, which is interlinked interests."

Robert Goodin
"Enfranchising All Affected Interests, and Its Alternatives"
Philosophy & Public Affairs 35/1 (2007), pp. 40-68

Preventive War

Summary of Whitley Kaufman.
"What's Wrong with Preventive War? The Moral and Legal Basis for the Preventive Use of Force."
Ethics and International Affairs 19/3 (2005) pp. 23-38.

Here Kaufman argues that both commonsense morality and the just war tradition support preventive--and not just preemptive--war. That is, he argues that war against a future, but not yet imminent, threat is morally permissible, but only under the legitimate authorization of the UN Security Council.

Kaufman argues that Just War Theory does not univocally prohibit preventive war--in fact, he claims, a series of reputable philosophers of international relations have supported preventive war, with some caveats. Kaufman cites Augustine, Grotius, Gentilli, Pufendorf, Vattel, and Vitoria as scholars who have supported, in one form or another, the permissibility of preventive war. Modern readers often project their own idealistic, pacifist agendas onto historical just war theorists. Kaufman mentions a resolution passed by the Eastern Division of the American Philosophical Association, an article by Allen Buchanan and Robert Keohane, and an essay by Gary Wills as examples of philosophers who apparently take for granted that the Just War tradition straighforwardly condemns preventive war. While historical scholars were often wary of the potential for abuse of preventive war, Kaufman claims, they were not such staunch opponents of it as modern scholars generally believe.

He disregards consequentialism as capable fof providing a complete moral framework from which to address the question of preventive war. The central argument for preventive war is the same that justifies war in self-defense: "One is entitled by natural law and natural right (within limits, of course) to protect oneself and one's citizens against unjust harm"(Kaufman 28). If war is necessary to avert a future wrong, then it makes no moral difference whether the war happens sooner or later. Thus, if imminence is taken to mean temporal proximity, then future attacks need not be imminent to warrant anticipatory response. If, however, the real worry motivating the importance of temporal proximity is that of epistemic certainty, this provides no principled argument against preventive war either. First, even imminent attacks are not certain, since the attacker could be bluffing, or could simply "change his mind and withdraw." Second, says Kaufman, "one can surely be reasonably certain (at least in some cases) that the attack is forthcoming even before the moment of imminence"(Kaufman 30).

Next, he persues an argument from analogy between domestic coercion and the international use of force. Preventive force is used domestically in restraining orders, prohibitions on carrying weapons, and conspiracy laws. In the context of domestic law, individuals are justified in using force only in self-defense precisely because state coercion tkes care of prevention; if there were no such institutions, individuals would have greater leeway to exercise preventive measures against perceived threats. If international relations, therefore, is similar to a state of nature, then individual states are justified in using preventive force against likely attackers. Of course, the representation of international relations as a state of nature is changed somewhat by the creation of the UN, and Kaufman turns to that next.

Finally, Kaufman argues that the UN's authority, and specifically that of the security Council, has assumed the role played by a state government in the domestic analogy: it possesses a monopoly on the use of force, especially the use of preventive and retributive force. Kaufman recognizes that some legal scholars (Glennon, Franck, and Ramsey in particular--see p. 34-36) have questioned the legitimate authority of the UN, and have argued that the UN's recent failure effectively to protect states from aggressors--through the use of preventive force, where necessary--represents a return to the state of nature. It is argued that this, in turn, grants states the moral authority to exercise the preventive use of force. Kaufman responds that the UN Security Council's refusal to use preventive force in recent cases had more to do with the perception that war, in those cases, was not necessary, rather than with a prohibition on preventive war.

Kaufman concludes that while Just War Theory does not prohibit preventive war, the legitimate authority to engage in it rests with the UN Security Council, and not with particular states. The rule of law requires that states submit to the UN's legal authority whether they agree with its judgments or not.

The Security Council and the Cold War

Summary: Christine Gray.
International Law and the Use of Force. 
Oxford University Press (2004).
Chapter 7: "The UN and the Use of Force," pp. 195-205.

The UN Security Council was originally intended to be the locus of sovereignty for a new body of global governance. Made up of five permanent members--Russia, China, the UK, France, and the United States--and ten (?) more members elected for two-year terms, the Security Council was supposed to have direct command over its own armed forces, with which it could intervene, when necessary, to repair breachs of the peace or acts of aggression.  Its legal authority is mostly spelled out in Chapter VII of the UN Charter.

But that vision of global governance never came to pass.  First, the UN was unable to levy troops or commandeer resources the way Article 43 said it should be able to.  And second, the Soviet Union and the United States alternately used their veto powers to prevent the Security Council from authorizing interventions, effectively paralyzing it throughout the Cold War. Despite having been derailed by non-compliance with Article 43 and by superpower gridlock during the Cold War, in 1988 the Security Council again began to authorize interventions. But in them meantime, the General Assembly co-opted the authority to authorize interventions itself, giving rise to a practice now called 'peacekeeping', and started issuing recommendations to the Security Council on matters actively under its consideration.  

These actions were in direct violation of Articles 11 and 12 of the UN Charter, yet in spite of the lack of any legal justification, peacekeeping operations are now accepted as legal by all member states.  Fifteen instances of peacekeeping occurred during the Cold War, and Gray and others observe that the practice of peacekeeping underwent four distinct stages of development between 1948 and 1988: nascent (1948-56: Middle East, India/Pakistan, North Korea), assertive (1956-67: Suez, Lebanon, Congo, West New Guinea, Yemen, Cyprus, India/Pakistan, Dominican Republic), dormant (1967-73; no interventions), and resurgent (1974-1987: Suez, Golan Heights, Lebanon,  Iran-Iraq).   This process has greatly eroded the separation of powers between the General Assembly and the Security Council, and in practice the two now appear able to accomplish many of the same political functions.

Immediately following Iraq's invasion of Kuwait on 2 August 1990, the Security Council passed Resolution 660, which declared a breach of international peace and security and demanded that Iraqi troops withdraw.  Shortly thereafter, the UN also passed Resolution 678, which authorized 'all necessary means' to uphold Resolution 660, a generally accepted euphemism for the use of force.  This was to be a model for subsequent authorizations.  [Incidentally, it is Resolution 678 that the UK used to justify its intervention in Iraq in 2003.  They claimed that Iraq's violation of the cease-fire agreement reinstated the authorization granted in Resolution 678, which had merely been suspended, not terminated.  In any case, Gray claims that "the optimism prevalent at the time of Resolution 678 has since dissipated." (205)]

The Security Council Rules the World

UN Charter
Chapter VII, Articles 39-42:

Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Hillary Clinton v. Iran

US Secretary of State Hillary Clinton (BBC 5.4.2010):

Iran will do whatever it can to divert attention away from its own record in an attempt to evade accountability... Iran is the only country represented in this hall that has been found by the [International Atomic Energy Agency] board of governors to be currently in non-compliance with its nuclear safeguard obligations... It has defied the UN Security Council and the IAEA and placed the future of the non-proliferation regime in jeopardy, and that is why it is facing increasing isolation and pressure from the international community.