Richard Falk The Declining World Order, America's Imperial Geopolitics (2004)

[ Pobierz całość w formacie PDF ]
.It is not the Charter System that is in disarray, providing sensible grounds fordeclaring the project of regulating recourse to war by states a failed experimentthat should now be abandoned.It is rather the leading states, and above all theUnited States, that need to be persuaded that their interests are served and theirvalues realized by a more diligent pursuit of a law-oriented foreign policy.TheCharter System is not a legal prison that presents states with the dilemma ofadherence (and defeat) and violation or disregard (and victory).Rather,adherence is the best policy, if understood against a jurisprudential backgroundthat is neither slavishly legalistic nor cynically nihilistic.The law can bestretched as new necessities arise, but the stretching must to the extent possiblebe in accordance with procedures and norms contained in the Charter System,with a factually and doctrinally persuasive explanation of why a particularinstance of stretching is justified.Such positive constructivist attitudes will renew confidence in the CharterSystem.It is also true that constructivism can work negatively, and so if thetypes of disregard of the legal framework, public opposition, and governmentalresistance present in the Iraq case are repeated in the future, then indeed theCharter System will be in shambles before much longer.There is little doubt that the Iraq War and the American occupation that hasensued represents a serious setback for advocates of a law-governed approach toworld order, as well as to the procedural effort to give the United NationsTHE UNITED NATIONS AFTER THE IRAQ WAR " 199Security Council primary authority to mandate exceptions to the Charterprohibition on the nondefensive use of force to resolve international conflicts.But history can be cunning.There exists some possibility that the burdens ofoccupation in Iraq, as well as the discrediting of the rationale advanced to justifythe American recourse to war, will cause a political swing in the United Statesand elsewhere in the direction of greater respect for the cardinal rules andprinciples of international law, for the United Nations, and for a peace-orientedpublic opinion at home and abroad.Endnotes1. President s Remarks at the United Nations General Assembly, Sept.12, 2003,White House Text.2.For representative contributions, see Richard Falk, ed., The Vietnam War andInternational Law, 4 vols.(Princeton, NJ: Princeton University Press, 4 vols.,1968, 1969, 1972, 1976).3.The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford,UK: Oxford University Press, 2002) 185 98; it should be mentioned that I was amember of the commission.4.Such a practice could be regarded an an informal and substantive extension of theestablished practice of treating abstentions by permanent members as not blockingdecisions by the Security Council despite the wording of Article 27(3) requiring the concurring votes of the permanent members. Such a practice shows thedegree to which the Security Council was able to contrive ways to overcome aparalysis that would have resulted from an interpretative approach based on textualfidelity, and it is impressive that this approach was established in the midst of theCold War.5.These three steps outlined in The Kosovo Report, note 3, 187.6.A discussion of this challenge and the U.S.response is the theme of my book,Richard Falk, The Great Terror War (Northhampton, MA: Olive Branch Press,2003).7.Initially fully depicted in Remarks by the President at 2002 Graduation Exerciseof the United States Military Academy, June 1, 2002; given a more enduring andauthoritative status by their emphasis in the official White House document, TheNational Security Strategy of the United States of America, Sept.2002, esp.Chapter 5, 13 16.8.See The Kosovo Report, note 3.9.The most important Security Council resolutions were 678 (1990), 687 (1991),and, of course, 1441 (2002).10. President Bush s Prepared Remarks Declaring End to Major Combat in Iraq, textprinted in NY Times, May 2, 2003, A14.11.This position is most clearly articulated by Michael J.Glennon, Why the SecurityCouncil Failed, Foreign Affairs 82, 3 (2003):16 35; the overall argument is morefully developed in Glennon s book Limits of Law, Prerogatives of Power:Interventionism after Kosovo (New York: Palgrove, 2001); also relevant, AnthonyC.Arend and Robert J.Beck, International Law and the Use of Force: Beyond the200 " THE DECLINING WORLD ORDERUN Charter Paradigm (New York: Routledge, 1993); A [ Pobierz całość w formacie PDF ]

Linki