Friday, December 09, 2005

Nobel Prizes and Power: The UN, International Law, and Hegemony, Part 2

As IAEA chief Mohamed ElBaradei is about to receive the Nobel Prize at the same time as he announces that the international community is losing patience with Iran's intransigence over its nuclear program, I'm prompted to continue thinking about the relationship between international law and US power. Now, it's true that the IAEA has had numerous successful instances of preventing nuclear proliferation. However, one has to distinguish between the easy cases, where states would prefer not to proliferate but feel pressured by the security dilemma to do so, and the hard ones, where states really do want nuclear weapons. Getting Brazil and Argentina to step back from their nuclear arms race, or convincing Ukraine and Kazakhstan to return their newly acquired nukes to Russia, while admirable and important efforts, are not the same as preventing an aggressive rogue state from proliferating. When the chips are down, as with Iraq (before the invasion), Iran, and North Korea, the IAEA's effort has been less than stellar.

There is a good chance that matters with Iran will come to a head. If Iran continues to refuse to give up its "right" to uranium enrichment and refuses the recent proposal to use fissile material enriched in Russia, what will the IAEA and the international community do? Will it be capable of enforcing its own rules and regulations and slap sanctions on a country that violates its clear commitments and duties under the Nuclear Non-Proliferation Treaty? The institutional structure of the UN means that any and all punitive actions to be imposed by the IAEA have to go through the Security Council where it subject to veto by, in this case, Russia. Even if sanctions are imposed, will the UN be able to keep them in place? As the oil-for-food scandal makes clear, sanctions create a powerful moral hazard by raising the price of goods and creating the opportunity for huge profits, encouraging defection and cheating.

Regardless of whether you agree with the logic of the invasion of Iraq, there is an important lesson there that is relevant to the problem of Iran. If the UN is unwilling or incapable of enforcing its own rules and international law, the US as global hegemon and police enforcer may take matters into its own hands. Iraq is not the only pertinent example: the NATO bombing of Serbia to protect the Kosovars is another example of the US (in cooperation with other actors) picking up the slack where the UN was incapable of living up to its ideals and laws. As I mentioned in part 1 of this post, hegemony and the willingness to use power outside of the framework of international law may be necessary for those laws to be enforced. If you don't think that the US should use force to enforce international law, how else can the law be respected?

11 Comments:

Blogger Kevin Jon Heller said...

Seth,

Could you please explain how the IAEA's actions in Iraq support the "important lesson" that the US will -- should? -- take matters into its own hands when "the UN is unwilling or incapable of enforcing its own rules and international law"? Whatever the IAEA's failures in the early 1990s, the agency's investigation of Iraq's supposed nuclear capabilities before the U.S. invasion -- which, of course, ended that investigation just as it was about to be completed -- were remarkably accurate. Not two weeks before the U.S. invasion, the IAEA informed the UN that there was no evidence the aluminum tubes were meant for a nuclear weapons program; that the Niger documents were forgeries (and easily discoverable ones, at that); and that three months of intrusive inspections had failed to find any evidence of an active nuclear weapons program.

The IAEA, in short, did not fail in Iraq. The failure was on the US side -- for making Iraq's non-existent nuclear capabilities the centerpiece of its "case" for invasion. Remember what Cheney said in August, 2002?

"I would remind you that when the inspectors first went into Iraq and were denied, finally denied access, a report came out of the Atomic — the IAEA — that they were six months away from developing a weapon. I don’t know what more evidence we need."

Only one problem -- that was a complete lie. The report didn't exist, and all of IAEA's statements, even the time, were to the contrary.

So remind me, how did the the invasion of Iraq represent the US "picking up the slack where the UN was incapable of living up to its ideals and laws"?

12/10/2005 1:48 AM  
Blogger Seth said...

Kevin:

Good questions. The situation, however, can't be judged in hindsight, nor can you just focus on the nuclear issue. You have to remember that despite any debate over the progress of the Iraqi nuclear program, aluminum tubes, or yellowcake, there was clear international consensus -- the US under Clinton and Bush, the UN, France, Germany -- that Iraq possessed a wide and varied arsenal of chemical and biological weapons, and was, at least to some degree interested in developing nuclear weapons. Furthermore, remember that in the aftermath of the first Gulf War, the world discovered that the Iraqi WMD program was much more advanced than the UN or international observers believed.

Iraq had been, since the end of the first Gulf War, in violation of numerous UN resolutions. Right up until the invasions, Iraq was still not in compliance with international law. Meanwhile, the international sanctions regime was crumbling. France and Russia, among others, were agitating to remove the sanction and the oil-for-food scandal was filling Iraq's coffers. As the run-up to the war continued, the US kept asking the UN for a promise that if extended inspections did not succeed, force would be authorized. All that was given was UN Resolution 1441 (which threatened Iraq with serious consequences, understood to not include force).

So, at the time, given the information that was generally accepted by the international community, Iraq was hiding a large stockpile of chemical and biological weapons, was in "material breach" of numerous UN resolutions, and the UN was refusing to even consider putting force on the table.

My point is not to argue the rightness or the wrongness of the invasion, or whether Iraq did or did not have WMD. These are the wrong questions for the argument I'm making here. The point is that Iraq was in violation of international law, and the international community was unwilling and/or unable to do anything to enforce its own rules. When those violations threaten the national security of another member state, and the hegemon in particular, that state will very likely do what it believes must be done if the UN will not. If the UN claims jurisdiction over issues such as nuclear proliferation, it must be willing to judge and punish violators, and should not and cannot be surprised if others do what the UN will not. Imagine a domestic government that claimed legislative and judicial powers without possessing a commensurate power to enforce those laws. That is the situation of the UN and international law. We're seeing this pattern repeat itself with Iran and North Korea. No one should be surprised that if (or when) the IAEA and the UN fail to punish countries that violate their obligations under the NPT, some other country takes matters into its own hands.

12/10/2005 12:13 PM  
Blogger Kevin Jon Heller said...

Seth,

I appreciate the response, but with all due respect it seems to me that the argument from hindsight is yours, not mine. I'm not arguing that the invasion wasn't justified because we discovered there were no WMDs in Iraq. I'm arguing that the Bush administration knew before the invasion that Iraq did not possess WMDs sufficient to threaten the US -- and that its claims to the contrary now are simply false.

Regarding nuclear weapons, your argument is no less revisionist than the administration's. The US did not claim that Saddam was "to some degree" interested in developing nuclear weapons, but that he was "six months away" from developing one -- a simple lie. (And let's not forget Condoleeza Rice's memorable claim, "We don't want the smoking gun to be a mushroom cloud.") Moreover, what was more credible, this supposed "international consensus" based on hearsay and speculation that Saddam was developing nuclear weapons, or the IAEA's continual insistence to the UN that its on-site inspections (somewhat frustrated, admittedly, by the US's petulant refusal to tell it where it believed Saddam nuclear facilities were) had found nothing that would allow Saddam to realize his nuclear desire in the next decade or so?

The US's pre-invasion case for chemical and biological weapons was no more honest or accurate. In the month before the invasion, UNMOVIC reporting the following to the UN: 400 inspections of 300 sites in Iraq had found neither WMDs or programs to develop WMDs; Iraq had no advance notice of the inspections, so could not have hidden any WMDs that did exist; UMNOVIC teams had begun destroying Iraq's stores of mustard gas; contrary to Powell's claims, inspectors had found no evidence of mobile biological weapons factories; Iraq had begun to destroy its illegal Al Samoud II missiles; and Iraq had accepted UMOVIC's insistence that it be allowed to interview Iraqi scientists without "minders."

None of this "proved," of course, that Iraq had no biological or chemical weapons. UNMOVIC was clear that Iraq still needed to be more forthcoming regarding its supposed destruction of its post-Gulf War I WMDs. But it was equally clear that Iraq's begrudging cooperation had dramatically improved and that a few more months were needed to resolve UNMOVIC's outstanding questions. Obviously, it didn't get those months -- the US invaded less than two weeks after UNMOVIC's last (and most impressive) presentation to the UN. Coincidence? I doubt it. It seems more reasonable to conclude that the invasion was timed, at least in part, to prevent the IAEA and UNMOVIC from proving that Sadddam, however evil -- and there is no question about that -- did not pose a substantial threat to the region, much less (as you imply) to the US.

Given all this, I think it is difficult to claim that the US invasion was in any way motivated (much less justified) by the idea that the UN was "unwilling and/or unable to do anything to enforce its own rules." The US did not invade Iraq because the UN inspections didn't succeed; it invaded because it was afraid they might.

12/10/2005 1:44 PM  
Blogger Seth said...

Kevin:

I'm not going to debate whether the US knew that Iraq did not have or was not pursuing nuclear weapons. I disagree with you, and see a bit too much conspiracy theory in your response, but that disagreement is not germane to this point. I'd like to focus on your last paragraph, where you argue it is difficult to claim that "the US invasion was in any way motivated (much less justified) by the idea that the UN was 'unwilling and/or unable to do anything to enforce its own rules.'" I do not argue that the US invaded Iraq for the purpose of supporting international law and the UN. I do argue, however, that if the UN does not act to support its own rules and laws, then other states will act to protect their own national interest.

12/10/2005 6:23 PM  
Blogger Kevin Jon Heller said...

Seth,

You don't argue that the US invaded Iraq to support international law and the UN? Let's review what you wrote:

"Iraq is not the only pertinent example... of the US (in cooperation with other actors) picking up the slack where the UN was incapable of living up to its ideals and laws."

"If you don't think that the US should use force to enforce international law, how else can the law be respected?"

"[H]egemony and the willingness to use power outside of the framework of international law may be necessary for those laws to be enforced."

Perhaps my exegetical skills are failing me, but it certainly seems like you are arguing that the US -- the only hegemon you mention in either of your posts -- invaded Iraq in order to uphold international law.

If your claim now is simply that states will act in their own interests if the UN doesn't uphold its own "rules and laws," we are in complete agreement. But that certainly doesn't mean the national interests of individual states -- and especially not the national interest of the hegemonic state -- will in any way be aligned with the rules and laws of the UN. On the contrary, as the US has proven time and again, the opposite is more often true: because the UN has no enforcement power, the hegemon will feel free to pursue its national interests at the expense of international law whenever it (and it alone) decides the two conflict. (Extraordinary renditions, anyone?) And that's the real problem with international law: might may not make right, but right only constrains might as an act of grace on might's part.

12/10/2005 8:19 PM  
Blogger Seth said...

Kevin:

We are in agreement. When I wrote that "[H]egemony and the willingness to use power outside of the framework of international law may be necessary for those laws to be enforced", I did not mean that the US sees itself as acting as the sword of the UN's justice nor that the national interest of any state is in line with that of the "international community", but rather that when the UN fails to enforce international rules and laws, states will be left to do so as they see fit.

12/10/2005 9:15 PM  
Blogger Kevin Jon Heller said...

Seth,

I've enjoyed our debate. And I look forward to the rest of your tenure at Opinio Juris...

Kevin

12/10/2005 11:35 PM  
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