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Where Does the Legitimacy of the United Nations Security Council Come From? Erik Voeten Assistant Professor of Political Science and International Affairs Department of Political Science The George Washington University E-mail: [email protected] This version: August 13, 2003. Prepared for presentation at the 2003 Annual Meetings of the American Political Science Association, August 29 Philadelphia, PA. An earlier version was presented at the 2003 International Studies Association Conference, Portland OR Saturday March 1, 2003. I thank Michael Dark, Rita Parhad, and Joel Westra for useful comments. More comments are very welcome. For updates suitable for citation please see: http://home.gwu.edu/~voeten/papers.htm

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  • Where Does the Legitimacy of the United Nations

    Security Council Come From?

    Erik Voeten

    Assistant Professor of Political Science and International Affairs

    Department of Political Science

    The George Washington University

    E-mail: [email protected]

    This version: August 13, 2003. Prepared for presentation at the 2003 Annual Meetings of the

    American Political Science Association, August 29 Philadelphia, PA. An earlier version was

    presented at the 2003 International Studies Association Conference, Portland OR Saturday

    March 1, 2003. I thank Michael Dark, Rita Parhad, and Joel Westra for useful comments.

    More comments are very welcome. For updates suitable for citation please see:

    http://home.gwu.edu/~voeten/papers.htm

  • Abstract

    This paper seeks to answer the question why the United Nations Security Council (UNSC)

    has come to be seen as the most impressive source of international authority for the

    approval of the use of military force? Scholarly analyses typically assume that the UNSC

    primarily fulfills a function in solving a legal, moral, or collective action dilemma. I contend

    that the persistent perception that the Council is the proper authority for the approval of the

    use of force by states against states is best understood by its role in coercive bargaining

    dilemmas that have recurred since the end of the Cold War. The Council performs a role

    similar to that of elite pacts in divided societies in that it represents a focal point in the

    coordination dilemma states with divergent interests face in enforcing limits on U.S. power.

    The implications for the prospects of the Councils legitimacy and theories of international

    legitimacy are discussed.

  • In a classic 1966 article, Inis L. Claude observed that the function of collective legitimization

    in global politics is increasingly conferred upon international organizations, and that the

    United Nations (UN) has become the primary custodian of this legitimacy. Claude argued

    that the world organization has come to be regarded, and used, as a dispenser of politically

    significant approval and disapproval of the claims, policies, and actions of states [..].1 This

    assertion is even more relevant now than it was in 1966. States, including the United States,

    have shown the willingness to incur significant cost in terms of time, policy compromise,

    and side-payments simply to obtain the stamp of approval from the UN Security Council

    (UNSC) for military actions. To be sure, if the attempt to achieve a UNSC compromise

    proved unsuccessful, the U.S. has not shied away from using other means to pursue its ends.

    Nevertheless, the failure to acquire UNSC approval is generally perceived as costly. This has

    given UNSC decisions considerable clout in international politics.

    The UNSCs leverage resides almost entirely in the perceived legitimacy its decisions

    grant to forceful actions.2 Why has the UNSC become the most impressive source of

    international authority for the approval of the use of military force? That it would be so is far

    from obvious. Claude, for instance, thought of the UN General Assembly (UNGA) as the

    ultimate conferrer of legitimacy.3 Thomas Franck argued in his influential 1990 treatise on

    legitimacy that if we were interested in identifying rules in the international system with a

    strong compliance pull, the provisions in the UN Charter that grant the UNSC military

    enforcement powers (Chapter VII) should be set aside.4 Since then, these provisions have

    1 Claude 1966, 367. 2 See especially Caron 1993, Hurd 1999, 2002. 3 Claude 1966, 373. 4 Franck 1990, 42.

    1

  • been invoked with great regularity to legitimize the use of force.5 The development is also

    puzzling from a theoretical perspective. Most theories seek the origins of modern

    institutional legitimacy in legalities or moral values. However, the UNSC has been

    inconsistent at best in applying legal principles; its decision-making procedures neither are

    inclusive, transparent, nor based on egalitarian principles; its decisions are frequently clouded

    by the threat of outside action; and the morality of its (non-)actions is widely debated.

    This paper examines the origins of the UNSC legitimacy by assessing the relative

    plausibility of four counterfactuals. Each counterfactual presumes that the UNSC derives its

    ability to legitimize the use of force from a particular set of expectations about its role in

    global politics. The analysis examines the plausibility of each account, given observed

    outcomes.

    The first two accounts assume that UNSC legitimacy stems primarily from demands

    for proper procedures. In the words of Lea Brilmayer: [The Security Councils] errors are

    validated as long as they are made in the appropriate way. 6 First, it may be that the UNSC

    derives its ability to legitimize the use of force from its capacity to form judgments about the

    congruence of a proposed action with accepted legal standards. The second counterfactual

    poses that the international community perceives decisions by the UNSC as legitimate

    because they arise from a political process that corresponds more closely than alternatives to

    practices deemed proper by the international community. Neither of these procedural

    accounts persuasively matches observed outcomes. UNSC behavior consistently violates

    expectations derived from demands for proper procedure and the implementation of a legal

    framework that regulates the use of force. Moreover, if such demands were the driving force

    5 For useful overviews see Blokker 2000 and Bailey and Daws 1998. 6 Brilmayer 1994, 157, quoted by Luck 2002, 50.

    2

  • behind the UNSCs authority, it is difficult to explain why alternative institutional solutions

    that more closely correspond to standards for legal adjudication and good governance have

    not gained more prominence.

    The third and fourth counterfactuals seek the origins of the UNSCs legitimacy in the

    perception that granting the UNSC the authority to legitimize force generally leads to more

    desirable outcomes. As David Caron put it: successful outcomes will go far in painting over

    perceived defects in the process of decision.7 A first basis for expectations about desirable

    results is the perception that coordinating on the UNSC for the authorization of force helps

    increase the production of global public goods, such as peacekeeping missions and the

    enforcement of the norm that states respect the territorial integrity of other states. While

    somewhat persuasive, this can at best be a partial explanation for the perceived legitimacy of

    UNSC decisions. For example, the collective action rationale does not explain the common

    phenomenon that states seek UNSC authorizations for the use of force regardless of their

    intention to rely on the UNs fixed burden-sharing mechanism.

    The fourth and most compelling account is that the UNSC performs a role similar to

    that of elite pacts in heterogeneous societies, as discussed in the comparative politics

    literature. Like elite pacts, the UNSC eschews majoritarian and public decision-making

    procedures and relies heavily on delegation of authority. Elite pacts derive their legitimacy

    not from the normative properties of their decision-making procedures, but from their

    ability to provide a measure of restraint to the exercise of power that is not self-evident in

    heterogeneous communities. In this conception, decisions by the UNSC form a focal point

    in the coordination and collaboration dilemmas states face in enforcing limits to power, in

    particular U.S. power.

    7 Caron 1993, 562.

    3

  • It should be clear that the different counterfactuals are not mutually exclusive. There

    is no inherent reason that actors beliefs about the legitimacy of the UNSC could not be

    motivated simultaneously by demands for proper procedures, legalities, public good

    production and limiting U.S. power. However, it is possible to differentiate particular

    expectations given the alternative assumptions and thereby to examine which of these

    rationales most critically accounts for the perceived legitimacy of the UNSC.

    The paper proceeds by first briefly defining legitimacy and establishing the extent to

    which UNSC decisions indeed confer legitimacy on uses of force. It then lays out a

    methodology, based on game-theoretic analyses of norm evolution, which allows for an

    examination of the paths in which legitimacy perceptions that support the authority of the

    UNSC are reinforced and undermined. Based on this framework, the four counterfactual

    analyses each examine the plausibility that legitimacy perceptions of the UNSC have

    particular origins. The conclusion discusses the implications for theories of international

    legitimacy and the future of UNSC legitimacy.

    Defining and Observing Legitimacy

    Max Weber characterized legitimacy in its empirical sense as the beliefs of persons about the

    proper exercise of authority.8 The focus in this paper is on the beliefs of actors that the

    social norm that the UNSC authorizes and forbids the use of force by states against states

    should be upheld. A social norm is a pattern of behavior that is customary, expected, and

    self-enforcing.9 The self-enforcing nature of a social norm implies that actors believe that

    violating it carries some costs. It is in such beliefs that the authority of the UNSC rests.10

    8 Weber 1978. 9 Young 1993. 10 See also Hurd 2003, 205.

    4

  • This definition is consistent with Constructivist approaches in stressing the social

    component of legitimacy perceptions. For example, Mark Suchman defines legitimacy as: a

    generalized perception or assumption that the actions of an entity are desirable, proper, or

    appropriate within some socially constructed system of norms, values, beliefs, and

    definitions.11 It departs from most Constructivist approaches in the assumption that

    legitimacy considerations are an integral part of cost-benefit evaluations that should not be

    separated from other concerns about self-interest. Actors may attach value to acting in ways

    deemed appropriate, but if this detracts too much from other objectives they may well

    decide to act in ways that seem less appropriate. As Robert A. Dahl and Charles E.

    Lindblom put it: legitimacy is not indispensable to all control. Nevertheless, lack of

    legitimacy imposes heavy costs on the controllers.12 Moreover, legitimacy is a matter of

    degree.13 The UNSC may internationally be seen as the most legitimate source for the

    authorization of force, but decisions by domestic institutions or regional institutions grant

    some measure of legitimacy as well. As Secretary Cohen said about UNSC authorization for

    the Kosovo intervention: Its desirable, not imperative.14 This suggests that legitimacy is an

    important component in a conscious cost-benefit evaluation of alternative options.15 Such

    conscious trade-offs are particularly likely when groups of individuals make decisions over

    issues with high stakes as opposed to individuals that engage in habitual behavior.

    The operational definition also contrasts with the conception that legitimacy properly

    signifies an evaluation of an institution on normative grounds, usually derived from

    11 Suchman 1986. 12 Dahl and Lindblom 1992, 115. Also quoted by Hurd 1999, p.388. 13 Franck 1990. 14 In: Whitney 1998. 15 Voeten 2001.

    5

  • democratic theory.16 In this view, if an institution fails to meet a set of specified standards it

    is illegitimate, regardless of how individual actors perceive the institution. The UNSC clearly

    fails to meet any reasonable extension of democratic standards and should thus be deemed

    illegitimate by an objective observer. While it is important to evaluate how democratic

    principles ought to be extended to a global arena, such a normative approach is unlikely to

    generate much insight into the question why UNSC decisions confer the legitimacy they do.

    The precise question that motivates this paper is thus: Why do statespersons believe

    that violating the social norm that the UNSC authorizes the use of force is costly, despite the

    fact that the UNSC lacks independent enforcement capabilities? That statespersons believe

    such costs exist is fairly well established in the literature. First, states behave as if this were

    so. I limit the discussion to some examples concerning the U.S.; the claim is substantiated

    elsewhere for other nations.17 There is ample evidence that during the 1990s, the U.S. paid

    significant side-payments and incurred costly compromises to obtain the blessing of the

    UNSC for operations it could easily, and de facto did, execute alone or with a few allies. For

    instance, David Malone carefully documents the painstaking efforts the U.S. engaged in to

    obtain UNSC authorization for its intervention in Haiti in 1998.18 Even though China and

    Russia have very little influence over what the U.S. does in its own backyard, they were able

    to obtain sizeable concessions in exchange for their consent in the UNSC, including

    favorable World Bank loans and U.S. support for peacekeeping in Georgia. The resolutions

    that authorized the use of military force in the Persian Gulf War, the 2001 invasion of

    Afghanistan, and several operations in the former Yugoslavia (in particular Bosnia) also

    16 E.g. Held 1995. 17 For example, Hurd 1999 discusses a convincing example of Japans response to UNSC sanctions on

    North Korea. Coleman 2002 analyzes Australias perceptions of UNSC legitimacy regarding the East-Timor case.

    18 Malone 1998.

    6

  • stand out in this regard.19 In these cases, most if not all of the heavy lifting occurred outside

    the UN framework, but the U.S. and its allies endured significant troubles in an effort to

    obtain the authority from the UNSC. This latter observation also applies to the cases where

    the U.S. ultimately failed to obtain UNSC authorization for the use of force, in Kosovo and

    more recently Iraq. By contrast, interventions the U.S. exercised in Panama and Grenada in

    the 1980s or Vietnam in the 1960s did not involve appeals to international organizations for

    authorization. In addition, the U.S. has attached great value to the ability of the UNSC to

    delegitimize actions by unfriendly states. Examples are the sanctions on Libya after its refusal

    to hand over the suspects of the Lockerbie terrorist attack and the UNSC denunciation of

    the 1998 nuclear testing of India and Pakistan.20

    A second way to infer the empirical legitimacy of the UNSC is to directly study the

    perceptions of relevant actors. It is difficult to analyze how government officials perceive the

    UN, because they have incentives to misrepresent their true beliefs.21 However, we can

    observe the perceptions of citizens through opinion surveys. There is a wealth of evidence

    that Americans consistently prefer UN actions to other types of multilateral interventions

    and even more so to unilateral initiatives.22 For example, in a January 2003 poll, the Program

    on International Policy Attitudes (PIPA) asked respondents whether they think the UN

    Security Council has the right to authorize the use of military force to prevent a country that

    does not have nuclear weapons from acquiring them. Of all respondents, 76% answered

    affirmatively to this question, whereas only 48% believes the United States without UN

    19 For a particularly useful analysis of the U.S. quest for legitimacy see Luck 2002. 20 Libya: S/RES/748 (3/31/1992), S/RES/883 (11/11/1993), S/RES/1192 (8/27/1998). India-

    Pakistan: S/RES/1172 (6/6/1998). 21 Slightly less problematic are memoirs of Administration official. See for example Baker 1995 on the

    role of the UNSC in the Gulf War coalition. 22 E.g. Kull 2002.

    7

  • approval has this right.23 Similar results attain when the questions concern particular

    interventions. For instance, in a January 2003 PIPA poll 67% of respondents believed it is

    necessary for the U.S. to obtain UN approval for military action against Iraq, whereas only

    29% believes this is unnecessary. What is impressive about these findings is how consistent

    they are across interventions, question formats, and time.24 At least since 1990, the American

    public has been more supportive of any type of intervention that has UN blessing, than one

    that is merely approved by NATO or does not receive international backing at all.25 For

    legitimacy concerns to affect U.S. calculations, no one in the Administration needs to have a

    normative conception that the UNSC ought to authorize any use of force. If the U.S.

    population overwhelmingly demands UNSC authorization, the government often pays

    attention as its own legitimacy depends heavily on popular consent. Similarly, if foreign

    governments on whom the U.S. relies place value on the UNSC for domestic or other

    reasons, this enters into the decision-making process. As a consequence, even those who

    believe that the legitimacy of the UNSC is based on false perceptions of reality usually do

    not argue that its legitimacy is irrelevant, but rather that it is dangerous.26

    It is extraordinarily difficult to measure the legitimacy of the UNSC precisely. Surely

    legitimacy perceptions vary by state, the government in a state, and even the person within

    that government. However, we can conclude that since the end of the Cold War, the rule

    23 PIPA/Knowledge Networks Poll, January 21-26th among 1063 American adults, margin of error +/-3%. The order of these two questions was randomized.

    24 The best updated information that firmly establishes the aggregate evidence from polls held by different organizations can be found at a website maintained by PIPA at the University of Maryland: http://www.americans-world.org/

    25 In my extensive search of survey questions in the Roper Center IPOLL system, I have not discovered a single survey result that contradicts this basic claim.

    26 Krauthammer 1991, Lefever 1993, Helms 2001.

    8

  • that the UNSC authorizes the use of force has had a strong compliance pull to governments,

    including the U.S. government. This is the phenomenon that warrants an explanation.

    Methodology

    The problem in directly answering the question why actors perceive the UNSC as legitimate

    is that it is virtually impossible to directly observe the motivations actors have for believing

    what they do. An alternative strategy is to use counterfactual analysis. A counterfactual takes

    the generic form: If it had been the case that C (or not C) it would have been the case that

    E (or not E).27 The counterfactual analyses in this paper each start with an assumption

    about the origins of the legitimacy of UNSC decisions, for example that they are perceived

    as judgments on the legality of the use of force. Each assumption is associated with

    expectations regarding the behavior of the UNSC. The empirical inquiry evaluates the

    plausibility that the UNSCs legitimacy has endured given these expectations.

    Before pursuing this analysis, it is necessary to explicitly identify the paths that lead

    to change and stability in the beliefs of actors that violating a social norm is costly. I derive

    these from game-theoretic analyses of self-enforcing institutional equilibria.28 There are two

    general sources of change. First, social norms may dissipate due to an exogenous change in the

    parameters that maintain the beliefs of actors that the norm should be obeyed. Such a

    change occurs outside of the UNSC but impacts the role of the UNSC in world politics. The

    end of the Cold War obviously qualifies, albeit for different reasons in each counterfactual.

    We may contend that it led to an increased attention for legalism;29 an enlarged importance

    27 Fearon 1991. 28 I rely in particular on Greif and Laitin 2003. 29 E.g. Ku and Diehl 1998.

    9

  • of liberal democratic norms in international society;30 an increase in the number of issues for

    which solutions are perceived as providing global public goods;31 and the disappearance of a

    credible check to the power of the U.S.32

    The plausibility of the counterfactuals is more easily discriminated on the second

    dimension of change, which arises from behavior associated with the institution itself.33

    Depending on the dilemma the UNSC purports to solve, actors have expectations regarding

    its functioning. If the UNSC conforms to these, the legitimacy beliefs are reinforced. If,

    however, the UNSC defies those expectations, these beliefs are undermined. If the behavior

    of the UNSC reinforces the social norm, more actors in more situations perceive it to be in

    their interest to adhere to it. If the behavior of the UNSC undermines the social norm, fewer

    actors in fewer situations support it. This self-undermining process can reach a critical level

    at which the equilibrium is no longer self-enforcing and institutional change should follow.

    Small incentives to stop adhering to the social norm may be offset by a general

    inclination towards stability. There are two reasons why a social norm to entrust authority to

    an institution may persist even if conditions supporting the social norm change. First, states

    may invest in an institution to the extent that they obtain a vested interest in the success of

    an institution and prefer to avoid making new investments in al alternate institution.

    However, the UNSC has few lock-in mechanisms that create credible commitments to the

    institution. Unlike for instance the EU, states have not invested much permanent capital nor

    have they adjusted domestic regulations in any dramatic way to fit the UNSC framework.

    30 E.g. Barnett 1997. 31 E.g. Fromuth 1993. 32 E.g. Mastanduno 1997. 33 The legitimacy beliefs are so-called quasi-parameters (Greif and Laitin 2003). These are parameters

    that can gradually be altered by the implications of the institutions, but a marginal change will not necessarily cause behavior associated with the institution to change.

    10

  • A second and potentially more powerful determinant for stability centers on the

    problem of coordinating on alternative forms of (un)cooperative behavior. Negotiating an

    alternative to the UNSC creates difficult distributional issues. Many countries are vying for a

    permanent seat on the table and none are willing to give theirs up. Moreover, governments

    and citizens around the globe share some understanding of the way the UNSC works.

    Shared expectations about how a new institution will perform may be difficult to form. This

    could induce actors to rely on past patterns of behavior, even if the UNSC fails to meet

    expectations. The extent to which this argument is valid depends to a large degree on the

    dilemma the UNSC is assumed to address. For example, expectations about alternative

    institutions to adjudicate legal disputes are easier to form than alternative expectations about

    restricting U.S. power. States have over fifty years of experience with the International Court

    of Justice (ICJ), whereas unipolarity is a relatively novel phenomenon that is difficult to

    address institutionally. The counterfactuals therefore address the attractiveness of alternative

    forms of (un)coordinated behavior given the beliefs that support the equilibrium.

    The counterfactuals examine how plausible it is that specific beliefs about the cost of

    violating UNSC authority have been self-enforcing, given that actors are rational in the sense

    that they update their beliefs such that the more evidence defies expectations, the more likely

    it is that actors downwardly adjust their belief that violating UNSC authority is costly.34

    Constructivists have criticized rationalist approaches for being ontologically inclined to

    revisionism and therefore unable to adequately explain the persistence of norms since self-

    interested actors do not value the norms themselves, just the benefits directly accruing from

    34 Brewer 2003 shows that citizens meet these criteria in an experiment on foreign policy beliefs.

    11

  • them.35 However, the framework outlined above explains explicitly why actors may value

    existing norms even if these do not satisfy immediate interests. Moreover, the assumption

    that actors are not inclined to revisit their beliefs is untenable. How else do norms change?

    The Constructivist literature points to the role of persuasion in this.36 Surely, actors cannot

    be persuaded of anything if they do not revisit their beliefs.

    Legal Adjudication

    Most investigations into the legitimacy of international institutions have concerned legal

    institutions such as the European Court of Justice and the GATT/WTO dispute resolution

    mechanism.37 This focus is understandable because such institutions derive their authority

    primarily from their legitimacy. Although the UNSC is explicitly a political rather than a legal

    institution, there is a body of customary and written international law that provides a legal

    basis for its actions, most notably the UN Charter.38 One could argue that the UNSC 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 this legal framework.

    Persuasive and legitimate legal judgments construct analogies to past practice and

    demonstrate congruence with the overall systemic logic of existing law.39 While recognizing

    the factual uniqueness of each case, legal reasoning sets limits by applying generally

    applicable rules. A judgment about the legality of the use of force by an individual state

    35 Hurd 1999, 387, Wendt 1999. Historical institutionalists criticize the rationalist literature (I believe more aptly) for exactly the opposite: providing strong explanations of why existing institutions continue to exist but not for how and why change occurs (Hall and Taylor 1996, Thelen 1999). The framework adopted in this paper stems from an explicit response to this criticism (Greif and Laitin 2003).

    36 Finnemore and Sikkink 1998. 37 E.g. Caldeira and Gibson 1995, Kelemen 2001. 38 See Murphy 1997 for an overview. 39 Finnemore and Toope 2001, 749.

    12

  • necessarily confers to any other state in a comparable situation.40 The predictability and

    indiscriminatory nature of legal norms potentially makes legal uses of force more acceptable

    to governments and citizens than actions that do not meet legal standards.

    To maintain its standing as a legitimate conferrer of legal judgments, an institution

    must strive for consistency in its rulings and motivate deviations from past practice with

    (developing) legal principles. If the institution capitulates too often to case-specific concerns

    when these collide with legal interpretation, then support based on perceptions about the

    institutions role as a custodian of international law should erode. That legal consistency is

    the institutional behavior that reinforces legitimacy perceptions fits well within the broader

    literature on this issue, and motivates concerns by legal scholars that the UNSC squanders its

    legitimacy when it adopts resolutions that are inconsistent with general principles of

    international law.41 The following brief discussion illustrates that it is implausible that the

    behavior of the UNSC has reinforced perceptions among rational actors that the institution

    helps maintain a broader set of legal principles that regulate the use of force.

    The UN Charter contains the most directly applicable rules. The Charter seeks to

    forbid threats or uses of force barring two exceptions. First, states may use force in self-

    defense as defined by Article 51 of the Charter. In principle, states are not obliged to obtain

    the approval of the UNSC for invoking this right.42 However, states routinely resort to

    expanded conceptions of self-defense in attempts to justify the unilateral use of force. UNSC

    resolutions conceivably legitimize or delegitimize self-defense actions by conferring a

    40 Schachter 1989, 320. 41 Alvarez 1995, Kirgis 1995, Farer 2002. 42 Schachter 1989, Franck 2001. Under the Charter, states have an obligation to notify the UNSC. This

    obligation is rarely observed.

    13

  • judgment on the extent to which they meet the provisions of the Charter and customary

    international law.

    In the classic study on the topic, Oscar Schachter concluded that: The uncertainty

    surrounding the factual claims and the not insignificant political motivations are reasons that

    condemnation by governments in the UN bodies cannot always be accepted as persuasive on

    the issue of lawfulness.43 This has not changed since the end of the Cold War. The UNSC

    has not adopted a consistent doctrine that establishes under what conditions a state can and

    cannot legally claim self-defense. Mostly, the UNSC has remained inactive on this issue. In

    the few cases where resolutions were adopted, the UNSC has been unwilling to legitimize

    actions that extend the right of self-defense beyond its paradigmatic case of responses to

    armed attack or the threat of an imminent attack. The major exception is the unanimous

    decision by the UNSC on September 28, 2001 to affirm the right of the U.S. to act forcefully

    in its self-defense against terrorist acts.44 Although most legal scholars believe that

    affirmation of the U.S. right to self-defense was unnecessary, the extensive scope of the

    resolution has led some to question the legal foundations of the legitimacy the UNSC

    judgment confers upon this action. As Tom J. Farer puts it: At this point, there is simply no

    cosmopolitan body of respectable legal opinion that could be invoked to support so broad a

    conception of self-defense.45 The concern is that the resolution legitimizes actions by the

    U.S. that would not be condoned from any other state, including the active pursuit of

    terrorists across borders. Overall, the UNSC has performed neither a large nor consistent

    role in evaluating the legality of self-defense claims.

    43 Schachter 1989, 318. 44 SC/RES 1373. 45 Farer 2001. See Charney 2001 for a similar opinion. Ratner 2002 for an alternate view.

    14

  • A second legal use of force is that authorized by the UNSC under Chapter VII of the

    Charter. Article 39 of the Charter specifies that the UNSC can make decisions and

    recommendations [..] to maintain or restore international peace and security. The common

    understanding is that an Article 39 determination is required before the UNSC can authorize

    actions, such as sanctions or force, which bind all states.46 The interpretation of this

    seemingly straightforward principle has been stretched several times to accommodate

    immediate political objectives. For example, Iraqi actions in Kurdish areas in 1991, the

    humanitarian tragedy in Somalia in 1992, the civil war in Angola in 1993, and the failure to

    implement election results in Haiti in 1994 have all been declared threats to the

    international peace.47 A similar judgment was made about Libyas unwillingness to

    surrender its citizens accused of terrorism.48

    One may counter that the interpretation of what constitutes a threat to the

    international peace has expanded over the years in a way that is commonly accepted by the

    international community and has thus become part of customary law. However, important

    states, most notably China, have articulated that the Chapter VII measures were

    extraordinary exceptions and should not be seen as extending UNSC authority.49

    Moreover, there has been no serious effort at motivating the Article 39 determination on

    these resolutions. As Frederic L. Kirgis Jr. points out: [..] if we are concerned about the

    responsible use of power by a marginally representative international organ that at present is

    not subject to recall or judicial review, we should expect the Security Council to be conscious

    46 Murphy 1997. 47 SC Res. 688 (Apr. 5 1991), SC Res 794 (Dec 3, 1992) and SC Res. 940 (July 31, 1994). 48 Technically this was a continuance of a threat to the international peace as it was based on an earlier

    assessment that identified the attack itself as a threat to the international peace. 49 These words were used in UNSC debates on Haiti and Somalia and also apply to other actions that

    assert rights to self-determination (Chesterman, Farer, and Sisk 2000). Important countries such as the Russian Federation, India, and Pakistan have expressed similar reservations.

    15

  • of how and why it is expanding the definition. It should also contemplate the limits to be

    applied to the broader definition. It should, in other words, make principled Article 39

    determinations, publicly explicated, that do not set unlimited or unintended precedents.50

    Legal scholars have noted a variety of other difficulties considering UNSC decisions,

    including the common practice to delegate the use of force to individual states or groupings

    of states rather than go through the procedures set out by the Charter, and the extent to

    which the Charter obliges states to seek peaceful resolutions before authorizing force.51

    Michael Glennon has concluded that coherent international law concerning intervention by

    states no longer exists.52 Others counter that unobserved portions of the UN charter do not

    impose legal constraints on the UNSC.53 Either view largely precludes the UNSC from

    playing the role imagined in this section. If international law poses few or no clearly defined

    constraints on how the UNSC decides that a particular use of force is legal, it cannot confer

    legitimacy on particular instances of the use of force based on their consistency with a

    broader set of principles of international law.

    If we maintain that the authority of the UNSC rests primarily on its ability to confer

    judgments on the legality of military action, it is also difficult to account for the absence of

    institutional reform. A lack of common expectations about alternative solutions does not

    pose a serious obstacle. The ICJ has functioned for over half a century and clearly provides a

    better solution to legal dilemmas. Members of the UNSC have refused to even make their

    50 Kirgis 1995, 517. See also Gordon 1994. 51 These and other criticisms are among others in Alvarez 1995, Glennon 2001, and Kirgis 1995. 52 Glennon 1999, 2001. 53 See Franck (1999) in response to Glennon (1999).

    16

  • decisions reviewable by the ICJ, although proposals to do so have been around since the

    1945 San Francisco Conference.54

    One could argue that even if the UNSC cannot in a meaningful way be seen as an

    institution that independently interprets international law and precedent, it provides the guise

    of legality to military actions. The framing of resolutions in legal language may carry an aura

    of authority that helps sell tough military actions to reluctant domestic publics. Citizens,

    especially those living in countries where the rule of law is strong and respected, may prefer

    interventions that have the appearance of legality to interventions that do not. In this case,

    the extent to which the UNSC acts in accordance with legal principles is less relevant than its

    ability to maintain the image that it does. While this account may have some merit,

    explaining the clout of the Council in international politics based on its ability to persistently

    create illusions is unattractive, especially if more plausible explanations are available.

    It is more plausible that when states and citizens look for an authority to legitimize

    the use of force, they generally do not seek an independent judgment on the legality of an

    intervention.55 Therefore, a UNSC decision that is inconsistent with broader legal rules, to

    the extent that these exist, does not automatically undermine the legitimacy of the UNSC.

    This does not necessarily mean that legal norms do not impact the use of force. The norm to

    ask for approval from the UNSC for the use of force can itself be understood as a legal

    norm. The observation that this norm is mostly obeyed even though the UNSC itself has

    shown little regard for legalities needs to be explained.

    54 Alvarez 1996. 55 See also Claude 1966, 370.

    17

  • Good Governance

    An institutions decisions may be seen as legitimate because its decision-making process

    corresponds to practice deemed proper by members of the community. Perceptions of the

    appropriateness of the process constitute an important source of authority for domestic

    political institutions, particularly in democracies. Citizens may attach inherent value to due

    process if it conforms to principles that are widely shared in a society. As a consequence, an

    actor may perceive the decisions of an institution as legitimate even if these produce

    outcomes deemed undesirable.56 Citizens and governments may perceive that in comparison

    to the alternatives, the UNSC provides some measure of appropriateness to the manner in

    which states decide to use force. Therefore, their expectations may converge around

    accepting the UNSC as the proper authority to authorize force. In this view, the increased

    significance of the UNSC since the end of the Cold War could result from the rising

    importance of liberal and democratic norms in international society. Various proposals to

    reform the UNSC in the early 1990s were inspired by this alleged normative change.57 Others

    contend that globalization has increased the number of countries and citizens directly

    affected by the use of force anywhere on the globe. This has amplified demands for proper

    (democratic) governance.58

    To evaluate whether we can explain the evolution of legitimacy perceptions of the

    UNSC from the assumption that citizens and governments demand appropriate governance

    procedures, we first need to define these. Ngaire Woods identifies three core principles of

    good global governance that are shared broadly, although not valued and interpreted equally:

    56 For an analysis along these lines see Gibson 1989. 57 See Barnett 1997 for a discussion with a particular focus on liberalism and legitimacy. 58 Held 1995, Murphy 2000.

    18

  • participation, accountability, and fairness.59 Broad participation allows affected states to have

    access to decision-making and deliberation so that they come to see the decisions of the

    institution as their own decisions. Participation in the UNSC is limited to five permanent

    members and ten rotating members. The Council lacks permanent representation from some

    of the most important contributors to the UN (Japan and Germany) as well as many of the

    most populous states in the world (e.g. India, Brazil, Nigeria, Indonesia) and lacks a single

    permanent member from the Southern hemisphere. It can thus hardly be thought of as an

    inclusive institution.

    Accountability requires at a minimum that the decision-making process is

    transparent. The extensive reliance on unrecorded and informal consultations in creating the

    UNSC agenda seriously limits transparency, as well as access to participation.60 Throughout

    much of the 1990s, the so-called P-3 (U.S., UK and France) often achieved compromises in

    separate meetings and then tried to convince China and Russia in unrecorded meetings to go

    along with it. Non-permanent members were frequently confronted with the text of

    resolutions just moments before they vote on it, with little explanation. Naturally, they tend

    to have little influence in the drafting process.61 A broader conception of accountability also

    requires that member states should have some ability to limit or sanction its work, a

    requirement that is not met in any meaningful way.

    Fairness requires that decision-making rules are enforced in an impartial way. It also

    entails a certain measure of equitability. This particularly concerns voting rules. What

    constitutes an equitable decision-making rule among states is subject to considerable

    59 Woods 1999. 60 Woods 1999, Wood 1996, Bailey and Daws 1998, Neuhaus 1995. 61 An exception are the so-called Friends groups. For example, Venezuela and Canada took a special

    interest in the Haiti issue and were actively involved in drafting resolutions (Malone 1998).

    19

  • controversy. Some argue that voting rules ought to be based solely on sovereign equality;

    others claim that votes weighted by population or financial contributions are fairer; again

    others.62 The UNSC does not meet any commonly applied standard of equitability. The

    allocation of veto power in the UNSC is based on historical accident not on principles of

    fairness. In addition, the UNSC often makes decisions under the threat of coercion by the

    U.S., sometimes in accordance with its NATO allies. In cases such as the Persian Gulf War,

    Somalia, and Haiti the U.S. effectively communicated that it would resort to military action

    regardless of the outcome of the UNSC process.63 This affects procedural fairness, even

    from the perspective of those states with the good fortune to have the right to veto

    resolutions, since the option to maintain the status quo is taken away.

    The failure of the UNSC to meet reasonable normative procedural standards is

    undisputed. Nevertheless, a decision by the UNSC to authorize force may uphold a higher

    standard of appropriate governance than in the absence of any consultations with a

    multilateral institution. However, if legitimacy is a desirable property that is determined by

    proper procedures, we have to ask why other institutions that more closely correspond to

    standards of good governance, such as the UNGA, have not gained more prominence. In

    1950 the UNSC adopted the so-called Uniting for Peace Resolution, which provides for

    the UNGA to take over responsibility from the UNSC. It has been invoked ten times, most

    famously twice in 1956: to order the French and British to stop their military intervention in

    the Suez Canal and to provide a similar judgment on the Soviet invasion in Hungary.

    62 See Russett 1996 for a thoughtful discussion on reform issues. Citizens differ on this issue too. In a survey among American adults, 45% believed a one-country one-vote system would be most fair for the UN, 42% a population weight, and 9% a rule that weighs by amount of dues paid. Survey by Americans Talk Issues Foundation, conducted by Market Strategies and Greenberg-Lake, June 23-July 1, 1991 based on telephone interviews with a national adult sample of 1,000.

    63 Voeten 2001.

    20

  • Although the UNGAs procedures match principles of proper procedure better than the

    UNSC, its prominence in deciding on matters related to the use of force has steadily

    declined since the 1970s.

    A second puzzle is that institutional reforms, which have been proposed to improve

    the standards of governance at the UNSC, have all failed.64 One can perhaps understand why

    attempts to alter voting procedures have been unsuccessful. But if the authority of the

    UNSC truly depended first and foremost on perceptions of proper procedures, it seems

    implausible that efforts to make the institution more transparent and accountable also would

    have failed. The only meaningful institutional reform actually reduced the extent to which

    the UNGA can hold the UNSC accountable through the budget.65 Moreover, the now

    common practice of delegating the authority to use force to individual states and regional

    organizations creates serious accountability issues.66

    A UNSC authorization of force is perhaps more satisfying from a procedural

    perspective than authorization by a domestic or regional institution only. However, the poor

    standards of governance, the small role of the UNGA, and the failure of institutional

    reforms together suggest that the pull towards the UNSC must have other sources. It may

    well be that the legitimacy of the UNSC would be enhanced if its decision-making

    procedures more closely corresponded to what is commonly considered good governance.

    But we cannot plausibly explain the enduring perception that the UNSC is the most

    impressive source of international authority for the approval of force from the assumption

    that governments and citizens demand proper decision-making procedures.

    64 For useful reviews see the chapters in Russett 1997. 65 Woods 2000. This reform involved requiring unanimity on budget approval, to allow the U.S. to

    control budget expansion. 66 Blokker 2000.

    21

  • Collective Action

    An alternative view of the role of the UNSC in the international system is that it helps solve

    a collective action problem. To some degree, UNSC decisions produce global public goods.67

    Successful peacekeeping operations provide a measure of stability and security that benefits

    virtually all nations. For example, the first Gulf War reinforced the norm that state borders

    not be changed forcibly and secured the stability of the global oil supply.68 These benefits

    accrue to all status quo powers. The end of superpower competition has increased the

    number of issues on which UN action is potentially perceived as a public good, rather than a

    good that satisfies only a subset of nations (club good). In addition, normative change and

    change in communication technologies have led statespersons and citizens to increasingly

    value prevention of genocide and other humanitarian disasters as global public goods.

    The collective action model of public good provision predicts that poor nations will

    be able to free ride off the contributions of wealthier nations and that the public good will

    be under-provided because contributors do not take into account the spillover benefits that

    their support confers to others.69 The UNSC may help alleviate suboptimality and free riding

    in three ways. First, the fixed burden-sharing mechanism for peacekeeping operations

    provides an institutional solution around which actors expectations about burden-sharing

    converge. 70 It thereby reduces the risks of bargaining failures over the distribution of

    expenses and lessens transaction costs. Moreover, it provides a yardstick to hold states

    accountable should they fail to meet their obligations. Second, even though states may all

    67 For analyses along these lines see Khanna, Sandler, and Shimizu (1998), Bobrow and Boyer (1997), and Shimizu and Sandler (2002)

    68 Bennett, Lepgold, and Unger 1994. 69 For the classic analysis see Olson and Zeckhauser 1966. 70 The fixed burden sharing system for peacekeeping operations was put in place in 1973 (UNGA/Res

    1310).

    22

  • benefit from the production of a public good, they likely disagree about the amount of

    public good that ought to be produced in individual cases. The delegation of decision-

    making authority to a small number of states may facilitate compromise on this matter.71

    Third, institutionalization of public good provision encourages voluntary contributions. In

    many cases, states have private interests at stake that make a peacekeeping mission or

    intervention a joint-product rather than a pure public good.72 The existence of selective

    incentives induces some states to incur more than their required share of the peacekeeping

    burden and thus help increase public good production. For example, Kuwait pays about

    two-thirds of the bill for the United Nations Iraq-Kuwait Observation Mission through

    voluntary contributions. Australia proved willing to shoulder a disproportionate share of the

    peacekeeping burden in East-Timor. States are more likely to make such contributions when

    these add to the efforts of others in a predictable manner and thus are more likely to

    generate results.

    The absence of enforcement mechanisms implies that the survival of this

    cooperative solution to increase public good production depends on a social norm. This

    norm first and foremost requires states to pay their share of the burden. The more states

    expect that this norm is followed, the fewer incentives they have to free ride in any particular

    case. This implies that in individual instances, states must be willing to shoulder a larger

    share of the burden than they would with a voluntary mechanism because they perceive that

    the benefits from upholding the social norm (greater public good production in the long

    run) exceed the short-term benefits of shirking. In this conception, the UNSC derives its

    legitimacy from the perception that it helps increase the production of global public goods.

    71 Martin 1992. 72 Bobrow and Boyer 1997.

    23

  • Uses of force that fail to obtain the authorization of the UNSC signal a decreased

    commitment to use scarce resources for public good production. In addition, they may

    signal that the public good component of a proposed use of force is deemed small in

    comparison to the private interests of those that execute the mission.

    There are at least four reasons why the view of the UNSC as a solution to a

    collective action problem provides at best a partial explanation of its enduring legitimacy.

    The first issue is the failure of several wealthy states, most notably the U.S., to meet their

    peacekeeping assessments. As of January 31st, 2003, the U.S. has $789 million in

    peacekeeping arrears.73 Other states owe the UN $1.4 billion in payments for peacekeeping.

    Although the share of the U.S. debt in the total debt and the total size of the U.S. debt have

    decreased since the mid-1990s, the arrears still constitute a very sizeable portion of the total

    peacekeeping budget.74 Under the collective action model, the failure of states to meet their

    assessments of the burden gives clear incentives to other states to shirk. It should thus

    undermine the social norm that maintains the institutional solution. There is some evidence

    for this. In particular Japan has shown increasing reluctance to shoulder its share of the

    burden, also motivated by economic crisis, failure to obtain a permanent Security Council

    seat and the continuance of former enemy clauses in the UN Charter.75 However, most

    European countries are still enthusiastic supporters of and contributors to peacekeeping, an

    observation that is not easily explained by the collective action model.

    A second issue is that the decision-making procedure used by the UNSC matches the

    objectives of optimizing public good provisions poorly. These procedures grant veto power

    to states that contribute little to UN operations and exclude some of the most significant

    73 http://www.globalpolicy.org/finance/tables/core/un-us-03.htm 74 For comparison: in the 2000-2002 period yearly peacekeeping budgets were around $2.6 billion. 75 Drifte 2000.

    24

  • contributors. Japan and Germany are the second and third largest contributors but have no

    permanent seat at the table. China contributes less than small European states such as

    Belgium, Sweden, and the Netherlands, but has the right to veto any resolution.76 This grants

    permanent members the opportunity to exploit other contributors by approving operations

    outside contributors place little value on and vetoing operations that non-permanent

    contributors desire. Informal consultations with contributors help to meet this objection.77

    However, Germany and Japan have frequently expressed discontent at their lack of formal

    say in UNSC decisions. Moreover, if public good provision were the prime concern, reform

    of these decision-making mechanisms would be in everyones best interest. They would

    prevent large contributors that lack decision-making power from abandoning the institution

    or refusing to pay their dues. International financial institutions, such as the World Bank and

    the IMF, have adopted weighted voting rules that better fit these objectives.

    Third, there is a general sense of disappointment in the ability of the UNSC to

    successfully produce public goods. The most notorious case undoubtedly was Rwanda. The

    unwillingness of UNSC members to incur the cost of an intervention left the world

    community to watch on the sidelines as massive ethnic cleansing took place. These and less

    dramatic cases in which undersized UN missions were unable to prevent violence, have led

    scholars to conclude that the UN should not intervene unless some capable power has a

    sufficient private interest at stake to remain committed to the cause.78 Thus, private interests

    rather than institutional arrangements are the key to public good production.79

    76 Based on data in Shimizu and Sandler 2002. 77 See Hurd 1997. 78 E.g. Stedman 2003. 79 For a view on peacekeeping that stresses self-interest see Neack 1995.

    25

  • Fourth, while we can argue that the presence of private interest may encourage

    public good production; this strongly depends on the modest rivalry nature of private

    benefits. Consider for example the conflict in the former Yugoslavia. Satisfying the interests

    of the U.S. and its Western European allies frequently ran directly counter to the interests of

    the Russian Federation. Such conflictual situations about the desirability of UN action,

    regardless of the cost question, are extremely common. As a consequence, the UN burden-

    sharing mechanism is increasingly circumvented altogether. Between 1996 and 2000,

    estimated expenditures on non-UN financed peacekeeping missions have exceeded spending

    on UN-financed operations by 11,5 billion dollars.80 Interestingly, many of these non-UN

    financed operations have taken place with the explicit authorization of the UNSC. For

    example, the mandates of the various peacekeeping and peacemaking forces in Bosnia

    (IFOR, SFOR), Kosovo (KFOR), and Afghanistan (ISAF) were all authorized at some point

    by UNSC resolutions,81 but none of them are financed primarily through the UN system or

    executed by (and accountable to) the UN. The collective action rationale for the UNSC does

    not provide an account for why states would go through the trouble of obtaining UNSC

    authorization if it grants no burden-sharing advantages.

    Yet, UNSC-authorized peacekeeping missions have helped resolve conflicts such as

    civil wars, particularly in the early 1990s.82 A global alternative is not readily available.

    Although the evidence since the mid-1990s should and probably has undermined legitimacy

    perceptions of the UNSC based on its public good function, it is not implausible that some

    of its legitimacy is still derived from this function. Nevertheless, the collective action

    80 Based on data from Shimizu and Sandler 2002. 81 Initial UNSC resolutions for respective missions: S/RES/1031 (12/15/1995), S/RES/1088

    (12/12/1996), S/RES/1244 (6/10/1999), S/RES/1386 (12/20/2001). 82 Doyle and Sambanis 2000.

    26

  • rationale does not explain why states value UNSC authorization even when they do not seek

    to utilize its fixed burden-sharing mechanism or other institutional resources.

    The UNSC as an Elite Pact

    An issue of central concern in the post-Cold War world is the management of the

    overwhelming and unchecked power advantage the U.S. has over other states. The

    dilemmas contours can be sketched as follows. There are substantial potential gains from

    cooperation for everyone on economic issues such as trade and financial stability. Moreover,

    many (though not all) governments face common security threats such as terrorism and

    states with the capacity and intention to challenge status quo boundaries. Cooperation with

    the U.S. is essential for alleviating such threats in the most efficient way. However, states

    realize that the U.S. has the incentives and ability to exploit or abandon individual states or

    groups of states. It can use its preponderant capabilities to extract concessions and set the

    terms for cooperation and act against the interests of individual states without being checked

    by a single credible power. This creates a coercive bargaining dilemma in which credible

    limits to the use of force potentially benefit all states. In the absence of credible guarantees,

    we observe suboptimal levels of cooperation, since states need to pay a risk premium,

    captured for instance by increased military expenditure. Moreover, we may see costly

    challenges to U.S. dominance in attempts to reduce the asymmetrical advantage.

    Liberal institutionalists claim that institutions can play an important role in tying a

    superpowers hands. John Ikenberry argues that after major wars victors have generally

    attempted to lock-in the post-war order by making commitments to multilateral institutions

    27

  • to exercise restraint.83 But what makes these commitments credible?84 The UNSC offers few

    lock-in mechanisms. States can abandon the institution at little material cost. Moreover,

    there are few transaction cost advantages for many major operations, whose details are

    negotiated elsewhere (e.g. Dayton) and whose operational center lies outside of the UN.

    A more plausible account is that the UNSC forms a focal point in the coordination

    dilemma states face in enforcing limits to U.S. power. Potential individual challenges are

    unlikely to deter the U.S. from engaging in transgressions. However, the prospect of a

    coordinated challenge may well persuade the superpower to follow restraint. For this to

    succeed, states would have to agree upon a mechanism that credibly triggers a coordinated

    response. In this conception, a UNSC decision legitimizes or delegitimizes the use of force

    in the sense that it forms a commonly accepted political judgment on whether the use of

    force transgresses a limit that should be defended.

    To understand how this may work, it is useful to develop the analogy to the literature

    in comparative politics that uses the concept of self-enforcing equilibrium to explain the

    political origins of the rule of law and other institutions.85 A well-known example is the

    formation of merchant guilds during the late medieval period. Trade centers were unable to

    credibly commit to not exploit individual merchants. The resulting risk premium that

    merchants paid reduced levels of trade and thereby hurt trade centers. Guilds provided a

    credible threat of costly boycotts (coordinated responses) if trade centers violated individual

    83 Ikenberry 2001. I should note that Ikenberry primarily focuses on the WTO and NATO. Moreover, in Ikenberrys theory the motivation for the U.S. to exercise restraint resides in long-term expected gains from institutionalization, whereas I focus on immediate concerns.

    84 See also Schweller 2001. 85 I build especially on Weingast 1997.

    28

  • merchants property rights. Their formation helped both merchants and trade centers,

    because they were unable to achieve optimal levels of trade without such guarantees.86

    The problems states face in solving their coordination dilemma is more complex.

    Merchants largely agreed on what constituted a transgression. States vary widely in their

    perception of what comprises an (il)legitimate action. What some perceive as a transgression

    others view as a legitimate exercise of power. Under these conditions, it is extremely difficult

    to agree in a decentralized manner on the enforcements of limits to power. An inefficient

    and uncooperative equilibrium in which either the superpower transgresses against a group

    of states and/or states regularly mount costly challenges therefore becomes the most likely

    equilibrium.87

    Similar problems of governance are common in ethnically, linguistically and

    religiously heterogeneous societies. Groups of citizens usually have conflicting interests

    about what limits to the sovereign ought to be enforced. This often results in government

    domination by individual groups and costly challenges to government authority by other

    groups, reducing overall welfare for the society. However, not all heterogeneous societies are

    characterized by such instability. The literature on comparative politics suggests that the

    most effective manner to induce limited and stable governance in divided societies is

    through elite pacts. 88 An elite pact is an agreement among a select set of actors, which seeks

    to define the rules that govern the use of power. It can be understood as a focal point about

    what limits to the exercise of power should be defended.89 For an elite pact to be successful,

    86 Greif, Milgrom, and Weingast 1994. 87 Weingast 1997. The Folk theorem tells us that there will be a multitude of equilibria in a repeated

    game like this, including many inefficient ones. Most of these will exhibit the characteristics described in the text.

    88 E.g. Lijphart 1969, Rustow 1970, ODonnell and Schmitter 1986, Tsebelis 1990. 89 Weingast 1997.

    29

  • it needs to be self-enforcing. This means that actors should find it in their interest to punish

    unilateral defections from the pact, for example because they believe that deviations have the

    potential to steer international society down a conflict-ridden path. It is important to

    understand that although the role of the UNSC in this conception depends entirely on the

    configuration of state interests, this does not make the institution epiphenomenal.90 There

    are many potential equilibria in the coercive bargaining dilemma and convergence on a

    particular (semi-cooperative) equilibrium has important implications.

    Whereas the design of the UNSC poorly fits the characteristics of a legal or

    democratic institution, it shows compelling similarities to elite pacts as discussed in the

    comparative politics literature. First, elite pacts generally eschew majoritarian decision-

    making and commonly grant influential actors the power to veto decisions.91 Grand

    coalitions and the consent of pivotal actors are usually required for important decisions. This

    is understandable because the goal of elite pacts is stability, not proper procedure. Stability is

    threatened if those with the power to disturb it are overruled in the decision process.

    Second, the process by which compromises in elite cartels are achieved is generally

    secretive rather than transparent. Public deliberation by actors manifests heterogeneity and

    commits actors to take stands from which it is costly to recede. For the most part, the public

    record of UNSC meetings is uninformative about true motivations actors have as most

    compromises are achieved in unrecorded negotiations.92 Extensive public debate is

    uncommon. U.S. Secretary of State Colin Powells public exposition of evidence for the case

    against Iraq and the ensuing debate about the validity of this evidence was highly unusual,93

    90 See Schweller 2001 for an argument along these lines. 91 Andeweg 2000. 92 E.g. Bailey and Daws 1998. 93 Colin Powell Remarks to the United Nations Security Council, New York City February 5 2003.

    30

  • and perhaps aimed as much at convincing publics at home and abroad of the sincerity of the

    U.S. attempt to obtain UNSC approval than at actually brokering a deal at the UNSC.

    Third, elite cartels usually embrace principles of subsidiarity or segmental authority.94

    Delegating discretion to influential actors within their own domain helps preserve

    satisfaction with the status quo. It has become the modal option for the UNSC to de facto

    delegate the authority to use force to regional organizations (e.g. NATO, ECOWAS) or

    regional powers (e.g. U.S., Australia). This creates serious problems of accountability and has

    questionable legal foundations in the Charter.95 It fits, however, within the purpose of an

    elite pact. The elite pact thus has broader uses than to regulate U.S. power. It may also

    confer judgments on the use of force by regional powers. For instance, UNSC approval of

    Australias intervention in East-Timor signals that this use of force is legitimate in that it

    should not trigger a coordinated response by other states. In the absence of such an

    assurance, a military intervention that enhances peace and security in the region may be

    more difficult to undertake for Australia in that the risks may be less clear to the government

    and the public. In this sense, the UNSC may also enhance the production of public goods,

    although through a different mechanism than discussed in the previous section.

    Elite pacts are perceived as legitimate to the extent that they contribute to a certain

    measure of stability, not because of their normative properties. In addition, to domestic

    publics the UNSC may perform an important signaling function. Citizens are generally

    unprepared to make accurate inferences about the likely consequences of forceful actions. If

    the social norm operates as specified above, UNSC agreement provides the public with a

    short cut on the likely consequences of foreign adventures. UNSC authorization indicates

    94 Andeweg 2000. 95 Blokker 2000.

    31

  • that no costly challenges will result from the action. The absence of UNSC authorization on

    the other hand, signals the possibility of costly challenges and reduced cooperation. A U.S.

    public that generally wants the U.S. to be involved internationally but is fearful of

    overextension96 may value such a signaling function. To foreign publics, UNSC approval

    signals a political judgment that a particular use of force does not constitute an abuse of

    power that should lead to a coordinated response.

    Elite pacts are difficult to form. In an uncoordinated equilibrium, groups of actors

    exploit others and have no direct incentive to stop this practice.97 Elite pacts are therefore

    frequently imposed following events in which all relevant parties suffered heavy losses, such

    as major wars.98 The conception of the UNSC fits this description well. The UN in general,

    and the UNSC in particular, was largely conceived in private negotiations between the great

    powers victors of World War II with the explicit aim to supply some measure of stability to

    post-War affairs.99 Surely, the UNSC had little bearing on whatever stability there was during

    the Cold War. However, when the U.S. looked for a way to legitimize its planned use of

    force against Iraq in an unchecked world, the UNSC performed its role well. Despite

    considerable discord between states, the first major conflict since the end of the Cold War

    ended without U.S. occupation or significant challenges to the U.S. by other states. Although

    side-payments played an important and well-documented role in obtaining UNSC

    agreement, it also involved real compromises and an extensive role for states other than the

    U.S.100 Given the dearth of common expectations about alternative forms of coordinated

    96 E.g. Holsti 1996. 97 Weingast 1997. 98 Rustow 1970, Weingast 1997. 99 For an extensive historical description, see Boyd 1971. 100 A good analysis is Bennett and Lepgold 1993.

    32

  • behavior, it is reasonable that the experience of the Gulf War greatly influenced beliefs that

    the UNSC helps enforce a stable (but limited) form of governance.

    Behavior associated with the UNSC reinforces the social norm if it contributes to

    keeping U.S. power in check while avoiding costly challenges and maintaining beneficial

    forms of global cooperation. It undermines the social norm if it either fails to provide an

    adequate check on U.S. power or leads to costly challenges. If we observe a UNSC

    authorization of the use of force, we should not observe meaningful challenges to the U.S.

    by other states. If important states would retaliate against the U.S. even after it obtains

    UNSC authorization, the U.S. may be less inclined to follow the social norm in future

    instances. In addition, the decision to authorize force cannot merely be a rubber stamp. If

    those states that are delegated the responsibilities to constrain U.S. power give too much

    leeway, UNSC decisions lose their utility to other states. This implies that to maintain the

    equilibrium it will sometimes be necessary for permanent members to defend the interests of

    important states not represented in the Council. If they would fail to do so, the social norm

    would be of little use to these states and they might challenge it. Besides the Persian Gulf

    War, other reinforcing examples include the Haitian and Somalian invasions, and the various

    resolutions on Bosnia. These cases may not have been resolved in a manner that is

    satisfactory from a moral, legal or efficiency standpoint but they did not result in an

    overextension of U.S. power or in costly challenges against its power, despite disagreements

    between states over the proper courses of action.

    If the U.S. uses force in the absence of UNSC agreement, we should see

    countermeasures that are costly to the U.S. If states fail to act, more people within the U.S.

    will believe that a lack of UNSC authorization carries no serious consequences and thus

    fewer believe that the social norm should be adhered to. To other states, the utility of the

    33

  • UNSC as an institution to limit U.S. power is diminished if the U.S. can engage in

    unpunished transgressions. The Kosovo intervention presents the first important deviation

    from the norm. The decision by the U.S. and its NATO allies to intervene forcefully without

    UNSC authorization did elicit protest from various sources, but it did not trigger an

    extensive coordinated response. There were two circumstances that modify the weakening

    implications for the UNSC somewhat, though not entirely. First, the action was executed by

    NATO, which implied some checks to U.S. power. Of course, if going through NATO

    would establish itself as an easier and scot-free alternative strategy for the U.S., the social

    norm that grants the UNSC authority is undermined. Second, although there was no explicit

    UNSC authorization to use force, there were two previous resolutions that at least implied a

    forceful response.101 More importantly, the UNSC adopted new resolutions that defined an

    extensive role for the UN once the fighting ended.102 The U.S. and its allies were willing to

    delegate authority to the UN in implementing their victory, thus alleviating fears of

    overextension somewhat. Nevertheless, the Kosovo episode should at least have had the

    consequence that fewer people in the U.S. believe that in fewer situations the absence of

    UNSC authorization carries great costs.

    The decision by the Bush Administration in 2003 to invade Iraq in the absence of

    Security Council authorization presents a more serious challenge to the legitimacy of the

    UNSC from this perspective. A large number of countries clearly perceived the U.S.-led

    intervention as a transgression of acceptable limits to U.S. power. Failure to generate a

    coordinated response should seriously weaken the legitimacy of the UNSC. It leads U.S.

    decision-makers to perceive that the benefit of UNSC authorization for future interventions

    101 S/RES/1199 (9/23/1998) and S/RES/1203 (10/24/1998). 102 In particular S/RES/1239 (5/14/1999) and S/RES/1244 (6/10/1999).

    34

  • is minor. Moreover, it should reduce the belief among states that the UNSC can provide a

    credible check on U.S. power, perhaps inducing these states to resort to other means. The

    early evidence is that challenging behavior by states is weak. Robert Pape has referred to it as

    soft balancing, meaning that it relies on recalcitrance in international institutions, the use

    of economic leverage, and diplomatic efforts to frustrate American intentions.103 In addition,

    the leaders of several European countries strongly opposed to the military action announced

    their intentions to increase military spending, strengthen military cooperation within Europe

    and strengthen military ties with China.104 These actions should reinforce beliefs that there

    are some costs associated with acting without UNSC authorization, but the estimates of

    these costs will likely be lower than they were before the Iraq affair.

    In sum, the elite pact account is the most plausible counterfactual for two reasons.

    First, the institutional design and practice of the UNSC conforms more closely to its role as

    an elite pact than to its other roles. Second, behavior associated with the UNSC has mostly

    reinforced beliefs that UNSC authorization helps maintain some measure of stability and

    limited abuse of power. It should be clear that the measure of governance the UNSC

    provides is limited. It raises the costs of unilateral action, but cannot prevent it altogether.105

    Conclusions

    The counterfactual that most persuasively matches observed behavior relies on the argument

    that the ability of the UNSC to successfully constrain the U.S. is at the heart of its aptitude

    to play a legitimizing role in international politics. If the UNSC fails at this task, its perceived

    authority to legitimize the use of force should also suffer. In this conception, a legitimate

    103 Pape 2003. 104 Joint Declaration Meeting of the Heads of State and Government of Germany, France, Luxembourg and Belgium on

    European Defense, Brussels April 29 2003. 105 See also Hurd 2003, 205.

    35

  • exercise of power abides by certain accepted limits. UNSC authorization signals the

    observance of these limits, which are defined not by legal, moral, or efficiency standards but

    by an undemocratic political process that seeks to achieve compromise among elite actors.

    Theoretically, this conception of legitimacy corresponds best to those classical

    Realists who did not consider power and legitimacy to be antithetical, but complementary.106

    Legitimacy, these theorists argued, helps convert power into authority. Authority is a much

    cheaper regulatory device than the constant exercise of coercion. Therefore, attempts to

    legitimize power are a persistent feature of political life, even in the anarchical global arena.

    However, these Realists had little faith in legalities or moral values as the key source for

    legitimacy. Instead, the process of legitimation primarily involves the acquisition of political

    judgments about the proper way in which the exercise of power ought to be limited. As Inis

    L. Claude wrote in 1966: the process of legitimization is ultimately a political phenomenon,

    a crystallization of judgment that may be influenced but is unlikely to be wholly determined

    by legal norms and moral principles.107

    The implications of this argument differ in important ways from the alternative

    accounts considered in this paper and in the literature. The common claim among scholars

    of international law that the UNSC threatens to lose its legitimacy if it adopts resolutions

    that do not fit a broader legal framework depends strongly on the (usually implicit)

    assumption that its legitimacy depends primarily on its ability to fulfill the role of legal

    adjudicator. This is the premise of Michael J. Glennons argument that the UNSCs role in

    world politics has ended because it has [..] fallen victim to geopolitical forces too strong for

    106 Among others see Carr 1964, Claude 1966, and Kissinger 1964 for examples of Realist writings on legitimacy. Unfortunately, contemporary Realists have mostly ignored legitimacy (Barnett 1997, 529).

    107 Claude 1966, 369.

    36

  • a legalist institution to withstand.108 If the UNSCs legitimacy does not critically depend on

    its functioning as a guardian of a legal system, as I argue here, the legal consistency of UNSC

    resolutions should not per se be of great consequence to the legitimacy of the institution.109

    If demand for proper procedures were the motivating factor behind the UNSCs

    authority, secretive backroom deals among the great powers are considered illegitimate. Such

    deals are part and parcel of the elite-pact account of legitimacy. This does not imply that

    actors view the procedural aspects of backroom politics as desirable per se, but they perceive

    them as useful to the higher purpose of stability. In the collective action rationale, the

    legitimacy of the UNSC depends greatly on its ability to help produce global public goods.

    Again, this is not necessarily a concern in the elite-pact rationale, although the proper

    functioning of the elite pact may increase public good production in comparison to

    uncooperative equilibria. Nevertheless, the failure of the UNSC to intervene in Rwanda may

    have diminished esteem for the institution, but it has had little effect on the perception that

    the UNSC is the proper authority to legitimize force. The conclusion from this should not

    be that states are not concerned with legalities, moralities or collective action problems but

    that the existing and persistent perception that the UNSC is the most desirable authority to

    approve the use of force cannot be explained persuasively from the assumption that they do.

    Substantive accounts of legitimacy, such as the one advanced in this paper, are

    sometimes criticized for giving accounts that are too dependent on outcomes that could be

    caused by a multitude of factors, not just the decisions by the institution.110 I agree that if an

    institutions legitimacy were based on a convergence of opinions on the normative

    properties of procedures that ought to regulate the use of force, its legitimacy would

    108 Glennon 2003, 16. 109 Slaughter 2003 and Hurd 2003 also make this argument in response to Glennon. 110 See the discussion in Barnett 1997.

    37

  • probably be more stable than the UNSCs legitimacy is today. However, such agreement

    does not exist and is unlikely to emerge in the near future.

    Some caveats are in order. First, I have omitted some potential sources of legitimacy.

    For example, Max Weber identified charisma and tradition as additional sources of

    legitimacy.111 While a charismatic Secretary-General such as Dag Hammarskjold or Kofi

    Annan may help contribute to the esteem of the institution, no one would suggest that the

    UNSCs authority rests mostly on the shoulders of one leader. That it is grounded in some

    established belief in the sanctity of traditional ways of assigning authority is obviously

    implausible given the historical record of the UNSC. It should also be clear that the analysis

    in the paper was not so much focused on the general legitimacy of the institution, but more

    specifically on the institutions ability to legitimize the use of force.

    Second, assessing the origins of an institutions legitimacy is inherently complicated

    and subjective. It is impossible to directly observe what state actors believe and why. There

    is no conclusive way to directly compare the accounts in a horse race. Nevertheless, a crucial

    step towards a more methodical analysis is to explicitly and systematically outline where the

    legitimacy of the UNSC might come from. Without this, we cannot aspire to understand the

    peculiar weight states and citizens have attached to UNSC decisions in the post-Cold War

    period.

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