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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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