Combating Terrorism and WMD Proliferation: Not at the U.N. Security Council

Alexander Benard & Paul Leaf

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For years, experts have debated whether the U.S. should spearhead reform of the United Nations (U.N.) framework for authorizing the use of force to counter the threats of terrorism and proliferation of weapons of mass destruction (WMD). In this debate, some scholars argue that the permanent members of the U.N. Security Council (P5) essentially see eye-to-eye on these modern threats, and will thus authorize the U.S. to combat them with sanctions or the use of force when necessary. Consequently, these scholars conclude that there is no need to reform how the use of force is authorized under international law.

Unfortunately, however, recent attempts by the U.S. to muster support in the Security Council for tough measures against North Korea and Iran—two of the world’s most dangerous rogue regimes—suggest that P5 members remain deeply divided both in their assessment of, and their preferred response to, modern threats. China and Russia, in particular, are inclined to support countries like North Korea and Iran—and maintain strong economic and security ties with these and other rogue regimes—because China and Russia see these states as effective counterpoises to U.S. power.

The risk of Security Council gridlock thus remains unacceptably high, with today’s P5 almost as divided on foreign policy issues as they were during the Cold War. Experts must, therefore, continue focusing on how to reform the U.N.’s framework for authorizing the use of force.  

International Law Governing the Use of Force

The U.N. Charter (Charter) governs the use of force. Subject to two exceptions, the Charter prohibits U.N. members from threatening or using force against other states.

The first exception permits the use of force in self-defense. This is a “unilateral right,” meaning a state need not seek approval from the U.N. before it uses force to defend itself. Rather, a state makes its own assessment that this exception applies. But the right of self-defense exists only if an “armed attack” has occurred on a U.N. member, a provision that has been interpreted to mean a country may use force in self-defense only if it deems an attack to be imminent. This limitation, however, is unworkable in an era when terrorists, potentially armed with WMD, can inflict catastrophic damage without any prior indication of an imminent attack.

The second exception allows the Security Council to collectively authorize the use of force—even if the threat does not meet the imminence threshold of the self-defense exception. The Security Council has fifteen members: the P5—the United States, the United Kingdom, France, Russia, and China—and ten non-permanent members elected for two-year terms. Authorizing the use of force requires the supporting vote of at least nine Security Council members, including concurring votes from the P5 states. This latter requirement arms each P5 member with a veto that allows it to single-handedly block the Security Council from authorizing other states to employ force. 

International Relations Theory and Case Studies

International relations theory and real-world case studies suggest that the U.S. cannot rely on collective authorization to counter modern threats. China and Russia have played, and will continue to play, an obstructionist role at the U.N., derailing efforts to counter WMD proliferation and terrorism.  

Consider theory. First, states make collective use of force decisions informed by balance-of-power considerations. States strive “to gain at each other’s expense” because they operate in a competitive environment pitted against potential enemies and competing for political influence and scarce resources. This does not preclude cooperation among the P5, but it means that any such cooperation occurs against a backdrop of innate competitiveness. Put differently, China and Russia may think that allowing the use of force against Iran, for example, will help counter WMD proliferation, but they also think that it will strengthen the U.S.’s already dominant position in the Middle East.

Second, targeted states view threats as more severe than non-targeted states. Because international terrorists and WMD-armed rogue regimes are more likely to attack the U.S. than China and Russia, the U.S. is more willing to use force against such threats. Moreover, many regimes that are directly involved in harboring or funding terrorists are rapidly becoming an integral part of China’s and Russia’s economic networks, providing Beijing and Moscow with access to new markets and raw materials. This both affirms and amplifies China’s and Russia’s disinclination to take as seriously as does the U.S. the threat that these regimes pose to international peace and security.

Third, powerful states are generally more willing to use force than weak states. America’s large investments in new military weaponry allow it to attack with lethal accuracy from afar, decreasing the danger to its forces. But other P5 members have less sophisticated military tools, forcing them to rely more on ground troops fighting in close proximity to the enemy, which raises the risk for their forces. Because of this technological asymmetry, the U.S. feels more comfortable using force than other countries.

Finally, China and Russia emphasize sovereignty more than the U.S. On September 11, 2001, the U.S. was reminded that foreign threats “increasingly come from actors operating within states, not from states themselves.” The U.S. therefore has taken the position that states forfeit their sovereignty if they prove incapable of containing threats that emanate from their territory. China and Russia spurn this approach, fearing that condoning such foreign interference could create precedent for other countries to question repressive practices in China and Russia.

Failed efforts by the U.S. to garner Security Council support for tough responses against North Korea and Iran illustrate these dynamics.

Since 2006, North Korea has shot long-range missiles and detonated two nuclear devices. Unfortunately, because of balance-of-power considerations, China’s main goal on the Korean peninsula is keeping a pliant and friendly regime in power in Pyongyang. The alternative—a unified Korea allied with Washington and Tokyo—frightens Beijing. Consequently, during the buildup to North Korea’s first nuclear detonation, China was unwilling to put pressure on North Korea that could destabilize the North Korean government, even if the absence of such pressure increased the likelihood of Pyongyang going nuclear. What little help China has offered resulted not from agreement with the U.S. that a nuclear North Korea would threaten global stability. After all, Beijing and Pyongyang are close allies, so China does not fear a nuclear attack from North Korea. Rather, China worries that a nuclear North Korea will force its regional adversaries—like Japan—to go nuclear, thereby altering the balance of power in that region and weakening China. Given their divergent interests, Washington and Beijing have disagreed about the measures needed to keep North Korea denuclearized. Unlike China, the U.S. is willing to use sanctions and at least the threat of force against North Korea, even if these measures result in a change in leadership in Pyongyang.

Several times this divergence in threat assessment and response strategy forced the U.S. to make concessions to obtain China’s approval of a U.N. Security Council Resolution (UNSCR) in response to North Korean aggression.

For example, on July 4, 2006, North Korea test-fired missiles in violation of its moratorium on long-range missile launches. The U.S. presented the Security Council with a draft resolution requiring Pyongyang to “immediately cease the development, deployment, testing, and proliferation of ballistic missiles.” Additionally, the resolution required states to “prevent the transfer of money, materiel, or technology that could contribute to North Korea’s missile program or advance” its WMD capabilities. Most importantly, it invoked Chapter VII of the Charter, which allows enforcement via sanctions and armed action.

China and Russia preferred a non-binding press statement from the Security Council President. These countries eventually offered a rival resolution that neither invoked Chapter VII nor contained the types of sanctions that the U.S. wanted. Indeed, it only requested voluntary action to curb Pyongyang’s missile and WMD development.

Accordingly, the U.S. was forced to water down its resolution to avoid Chinese and Russian vetoes. The result, UNSCR 1695, lacked any reference to Chapter VII, meaning neither sanctions nor force could be applied to implement the resolution. The resolution’s demands and requirements lacked teeth. Without enforcement mechanisms, UNSCR 1695 was little more than a polite invitation for Pyongyang to cease its reckless conduct.

On October 9, 2006, less than three months after UNSCR 1695 was passed, North Korea detonated its first nuclear weapon. The U.S. and its allies sought to empower states to inspect all cargo traveling to and from North Korea to search for weapons and to limit Pyongyang’s ability to finance its nuclear program. Japan wanted to preclude North Korean exports and to prevent North Korean aircraft and vessels from docking in foreign ports. The U.S. again pushed for a response under Chapter VII, and even proposed threatening North Korea with a thirty-day deadline to cease its illicit activities or face “further action.”

The Security Council responded with UNSCR 1718, but only after China and Russia diluted America’s draft resolution. First, Beijing opposed the thirty-day deadline and Japan’s proposals, so both were dropped. Second, China insisted that the resolution “exclude the possibility, however remote, that force could be used against North Korea.” Consequently, the resolution only permits sanctions, as it cites Article 41, but not Article 42, of Chapter VII. Third, China and Russia wanted to avoid the armed interception and detention of North Korean vessels, so the resolution calls upon U.N. member states to inspect cargo to and from North Korea, but not to intercept or interdict it. The Chinese restricted even this limited action by including the following language in the resolution: all inspections must be executed “in accordance with [the inspecting country’s] national authorities and legislation, and consistent with international law.” Notably, China maintains that international law prohibits inspections of North Korean ships believed to be carrying banned materials. Finally, China exempted North Korea’s counterfeiting and narcotics activities from the resolution. Pyongyang uses funds from these illicit enterprises to feed its missile and WMD programs.

Pyongyang escalated. On April 5, 2009, North Korea fired the same long-range missile that it had launched in July 2006. A subsequent Security Council session was fruitless because China and Russia maintained that Pyongyang had breached no resolution. After a week of gridlock between the U.S. and it allies on one hand, who wanted a resolution and new sanctions against North Korea, and China and Russia on the other, who flatly opposed these measures, the Security Council finally responded to North Korea’s provocation by issuing a non-binding presidential statement.

Just six weeks later, on May 27, 2009, North Korea detonated a second nuclear device. Over the following week, Pyongyang’s aggression increased dramatically as it shot multiple missiles, nullified the Korean War truce, and threatened to attack South Korea. The Security Council was silent for more than two weeks. Finally, it passed UNSCR 1874 on June 12, 2009, but only after China and Russia weakened the resolution by excluding military threats against Pyongyang, requesting only voluntary inspections of North Korean ships, and allowing North Korea to continue receiving arms from China. Emboldened by the Security Council’s impotence, North Korea announced just hours after UNSCR 1874 was passed that it was enriching uranium as another route to obtain nuclear weapons. Beijing has since signed lucrative commercial deals with Pyongyang in violation of UNSCR 1874 and agreed to provide the regime with at least $200 million in financial assistance, enabling North Korea to resist international pressure.

China and Russia have similarly shielded Iran from meaningful Security Council action. There are many reasons for China’s and Russia’s behavior, including the fact that Iran would aim its nuclear weapons at the United States and its allies and Iran’s growing economic relationship with China and Russia. China is investing nearly $120 billion to develop Iranian oil and gas fields. In exchange, China will have access to over 250 million tons of natural gas and 150,000 barrels of oil per day over the next thirty years. Russia, meanwhile, is a top weapons supplier to Iran (along with China), including exports of missile technology and advanced anti-aircraft missiles that will make striking Tehran’s nuclear facilities more difficult. Most alarming, Russia is building a nuclear reactor for Iran near Bushehr, ostensibly only for civilian purposes. But this claim is belied by Iran’s pattern of misleading the  United States about its nuclear intentions and by its huge natural-gas reserves that can be used to generate electricity cheaper than nuclear-power plants. 

In February 2006, the International Atomic Energy Agency (IAEA) issued a resolution stating that Iran was not complying with its obligations under the Nuclear Non-Proliferation Treaty and referred the matter to the Security Council. The IAEA lamented Iran’s lack of transparency with respect to its enrichment activities and declared an “absence of confidence” that Iran’s nuclear program was solely for peaceful purposes. The IAEA recommended that the Security Council order Iran to suspend its enrichment and reprocessing activities and implement transparency measures to allow closer monitoring of its nuclear facilities. Even China and Russia voted in favor of the Security Council referral.

But as soon as the matter came before the Security Council—where, unlike at the IAEA, penalties may be imposed for Iranian non-compliance—the tone changed. China and Russia announced their opposition to sanctioning Iran. The U.S. and it allies, meanwhile, wanted a resolution under Chapter VII of the Charter. Only after months of cajoling did China and Russia acquiesce to a resolution with sanctions. UNSCR 1737’s bite, however, was severely limited. The resolution excluded the possibility that force could be used against Iran. The resolution did not target Iran’s importation of refined gasoline, which accounted for forty percent of its domestic consumption. Moreover, China and Russia rejected the trade and travel sanctions proposed by the U.S. and removed references to the Bushehr nuclear plant. Even with these cuts, the modest sanctions that remained in the resolution prompted expressions of regret from China and Russia.

China and Russia have continued to block the Security Council from punishing Iran, despite further IAEA reports condemning Tehran’s behavior. Most recently, Iran revealed a clandestine uranium enrichment facility, shot missiles capable of hitting Israel and Europe, reneged on an agreement to ship its low-enriched uranium to Russia, sent arms to the terrorist group Hezbollah, vowed to develop ten more uranium enrichment facilities, and may be testing a nuclear bomb trigger. The Security Council has done nothing. Even after the U.S. made major concessions to China and Russia—President Obama became the first U.S. president to not meet with the Dalai Lama while he was in the U.S. capitol, he withheld arms from Taiwan for nearly a year, and he scrapped plans to install missile-defense systems in Russia’s sphere of influence—these countries remain firmly opposed to meaningful sanctions. The U.S. has been forced to pursue unilateral sanctions against Iran.

Conclusion

Collective authorization through the Security Council remains an ineffective vehicle for combating terrorism and WMD proliferation. U.S. scholars and policymakers must continue to identify viable alternatives to collective authorization, such as developing legal mechanisms that permit the use of force in self-defense before a threat is imminent, reforming the veto power within the Security Council, or making use-of-force decisions outside of the U.N. framework. Absent such change, the U.N. will continue to serve as an enabler of, rather than a deterrent against, rogue regimes such as North Korea and Iran.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Alexander Benard, managing director of a Middle East-focused investment firm, has worked at the Defense Department and the Washington Institute for Near East Policy. Paul J. Leaf, an attorney at Kirkland & Ellis LLP, is a former editor of the Stanford Law Review. Both authors have published articles on foreign policy and international law in a variety of journals, magazines, and newspapers.

This Legal Workshop Editorial is based on the following Law Review Article: Alexander Benard & Paul J. Leaf, Modern Threats and the United Nations Security Council: No Time for Complacency (A Response to Professor Allen Weiner), 62 STAN L. REV. 1395 (2010).


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