Sidelined in Kosovo?

Law gives those taking such illegal but necessary action several well-established defensive strategies. They may deny having been authors of the illegal act, or argue that the act is not actually illegal. They may call for a change in the law to make their action legal. Or they may argue mitigation, by showing that their illegal conduct was still the least-unacceptable possible outcome. Every law student knows that even cannibalism, if demonstrably the least-gruesome alternative in the circumstances, is treated leniently by the law.

But they also know that it would be no advance for civilized society if the legal impediments to cannibalism were dismantled. Laws, including the U.N. Charter, are written to govern the general conduct of states in light of historic experience and the requisites of good order. If, in a particular instance, a general law inhibits doing justice, then it is up to each member of the community to decide whether to disobey that law. If some so choose, however, their best strategy is not to ridicule, let alone change the law: it is to proffer the most expiating explanation of the special circumstances that ordained their moral choice.

Thomas M. Franck is Murry and Ida Becker Professor of Law and Director of the Center for International Studies at New York University's School of Law.

A ROAD TO NOWHERE

By Edward C. Luck

By caricaturing the past, misreading the U.N. Charter, and prematurely divining the lessons of Kosovo, Michael J. Glennon concludes that international law and practice have entered a brave new humanitarian world and that the restrictive old United Nations should step aside. But the present is not so radically different from the past, and Glennon's argument sheds no light on those persistent political dilemmas that confound international law and organizations as perplexingly in 1999 as they did in 1945 and 1919.

While others warn of U.N. meddling, Glennon roughly asserts that the U.N. Charter is fundamentally anti-interventionist. Although any number of repressive governments have claimed that the United Nations is prohibited from intervening in their internal affairs, the charter specifically grants the Security Council authority to override this principle if it finds a potential threat to international peace and security. More incrementally but more powerfully, the very principles and purposes of the charter -- with their emphasis on human rights, fundamental freedoms, humanitarian values, and economic and social development -- have undermined barriers to outside scrutiny that have been erected by repressive regimes.

Contrary to Glennon's contention, the charter does not require a "cross-border attack" to permit international enforcement action. Aggression is only one of several possible triggers stipulated in Chapter VII, which uses broad terminology to permit considerable discretion by the members of the Security Council.

Glennon makes a number of uncharacteristically sweeping claims. He baldly contends that the international interventions in Haiti, Somalia, and Rwanda "flew in the face of the constraints of the charter and 40 years of U.N. precedent." Yet in 1960, almost 40 years ago, the United Nations responded to civil strife in the Congo with one of its largest and riskiest military operations ever. And its mission in Cyprus has been one of its longest. Beginning in the early 1960s, the General Assembly and then the Security Council imposed sanctions on South Africa for its racist internal policies, which the Security Council in 1960 labeled a potential threat to international peace and security. And half of the 15 current U.N. peacekeeping operations and 18 of the 34 completed missions have focused on civil conflict.

As he to some extent acknowledges, Glennon's projections about the "new order" also rest on shaky ground. NATO's unanimity rule, selective membership, and hesitancy on Bosnia, Kosovo, and out-of-area involvement in general make it a most unlikely enforcer of a new global order. In this regard, the West's concern for justice in Kosovo is more refreshing than encouraging, given its reluctance to counter barbarism elsewhere. Would Glennon care to tell the people of Sierra Leone, Congo, Liberia, Rwanda, Sudan, and Afghanistan about his "just new order"? Is he so confident that Kosovo will end well and become the model for the future?

The United Nations needs NATO, as well as partners in other regions, and NATO needs the United Nations. Military strikes alone do not curb terrorism, civil strife, or aggression. Norm building, diplomacy, peacekeeping, arms monitoring, information sharing, nation building, and economic sanctions -- areas where the United Nations has much to contribute -- should remain part of the world's policy arsenal.

In the end, Glennon admits that justice requires legitimacy -- something his new order has yet to acquire and the United Nations has yet to lose. The high purposes espoused by the world body make a difference, even when the organization lacks either the political consensus or the physical means for effective enforcement, because over the years they have fostered the kinds of norms, public attitudes, and transnational political values that Glennon sees as the foundation for a broader sense of what is just and legitimate. Although he is right to recognize that the international legal and political culture is evolving, his call to abandon the vehicle that helped get us this far is dangerously misguided.

Edward C. Luck is Executive Director of the Center for the Study of International Organization of New York University's School of Law and the Woodrow Wilson School of Princeton University.

AMERICA FIRST?

By Walter J. Rockler