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Note of a meeting at Vaughan House on 20th January 2004
Lord Brennan is a leading silk with an international practice in environmental, product liability and medical negligence cases. In 1999 he was Chairman of the Bar Council of England and Wales. In 2000 he became a life peer and sits on the government benches.
Lord Brennan stressed the importance of a historical approach, too often regarded as irrelevant in the internet age. There is a continuity of human affairs, and a description of what people have done in the past is an essential basis for understanding the present. The League of Nations had been founded on a Kantian hypothesis. The founders of the United Nations (UN) picked up the same theme. The preamble to the UN Charter begins ‘We the peoples of the United Nations (are) determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind …’. This was to apply not only to World Wars but to local wars. (120 million humans were killed in the wars of the XX Century). Churchill, with his strong attachment to the British Empire, wanted a World Council to oversee strong regional councils. This view did not prevail. Instead an American model was adopted, based on the following aims and principles: the use of force to be outlawed;[i] issues to be resolved multilaterally and policed by the five powers;[ii] the UN to promote economic progress, decolonisation, human rights and fundamental freedoms. It is ironic that in 2003 the United States took actions flatly contrary to the second of these principles, acting on the Hobbesian, basis that great powers do not submit their national interest to the judgement of smaller nations.
In practice the UN system never worked. The veto possessed by each of the permanent members of the Security Council paralysed that body[iii]. Provisions for the earmarking of forces[iv] and for a Military Staff Committee of the permanent members [v] never became effective. Having no forces the UN lacked military sanction. Hence what resulted is best described as a ‘negative peace’. In short, considerations of realpolitik took over, driven by the Cold War, the erosion of ‘self defence’ as the main justification for armed action, [vi] and the failure of the Security Council to act as an executive board. Member nations never invested the UN with the power and authority it needed. Nevertheless there have been some advances. World peace has been preserved, economic progress made and a number of subsidiary bodies deserve great credit, such as the World Health Organisation, the World Bank and IMF, the High Commission for Refugees and the UN Development Programme.
The position changed with the publication of the US Presidential Directive of 25th May 1994 which said the US would support UN peacekeeping and enforcement only to the extent that it conformed with the national interests of the USA, and restricted financial aid to countries of whose regimes the US approved. Lord Brennan commended the following books as providing insight into the new American attitude: Of Paradise and Power by Robert Kagan [vii] (which he called an expression of raw might not seen since 1860/70), and two books by Henry Kissinger Diplomacy [viii] and Does America need a Foreign Policy.[ix] However he had seen a distinct change of attitude in America towards the Iraq imbroglio between February/March 2003 (when the predominant motive had been revenge) and September 2003 by which time people had begun to ask ‘how did we get into this?’, ‘what are the costs?’, and above all ‘what is the plan?’ Americans are now looking for a more reasoned and cogent foreign policy. So long as the State Department is weak and Defence Department strong US thinking will be simply power based. We have to talk to the Americans and try to persuade them otherwise. They can be persuaded, if not on aims then at least on means.
Even in the United Nations the US calls the shots to a surprising degree (e.g. getting ambassadors to the Security Council who did not support the Iraq war dismissed). But now the Americans cannot do without the UN and are asking Kofi Annan to come to the rescue in organising some form of election in Iraq before the US hands over power. Annan will accommodate them only to the extent that the UN actions are properly supported and paid for by the US. The US might also get tough with the Syrians before the election. It is a gloomy prospect but Lord Brennan has great confidence in Annan whom he regards as a great man. The UN depends on US policy but also has tremendous support from the rest of the world. In what other meeting place do they have a voice? Even in Syria it is regarded as the place in which to discuss the future.
What does the future hold? The Middle East is an area of major importance: the Israel/Palestine problem must be solved. Arab societies with a weak middle class and huge population, easily led, are ashamed of Arab inferiority. A big investment is needed in education and social development. In South Asia there is the problem of a weak Pakistan in which corruption is endemic. India is a self-confident world power not needing the US or Europe. If Musharraf succumbed and the generals, having taken over in Pakistan, tried sabre rattling, India might get driven to a 9/11 type reaction. In Africa the problems of starvation and migration speak for themselves.
For the United Nations as a body, it is imperative to revise the Charter. This requires a two thirds vote in the General Assembly, not impossible to reach, and there is no veto. [But see note [x] ]. There should be a standing committee on revision of the Charter. The size of the Security Council could be increased from its present fifteen members to eighteen or twenty. The veto power could be abolished or might require the vote of two or even three permanent members. India, Brazil, Nigeria (or South Africa) and Germany (or Japan) could become new permanent members. The Secretary General should propose a small list of two or three priority objectives or targets each year, the present agenda being too loose and informal. The General Assembly has no power to make binding decisions on international matters but must flex its muscles more, giving expressions of opinion guided by a similar work programme. The General Assembly is entitled, by a simple majority vote, to refer legal questions to the International Court of Justice.[xi] This power was used in the case of Israel and could be in the case of Iraq. The Trusteeship Council now has no role and could be put in charge of ‘failed states’ such as Rwanda. The International Court of Justice (ICJ) is waking up although the US has refused to recognise its jurisdiction since the Nicaragua/Contra case. NATO’s action in Kosovo took place outside the UN because Russia and China were implacably opposed. Many international lawyers believe that intervention can be justified even in the absence of a mandate from the UN Security Council. For example most nations regard stopping genocide (when all other avenues have failed) to be a justifying cause. The Pope’s New Year message gave an enduring commitment to ‘teaching peace’. The UN organisation needs to rise above the cold status of an international institution and become the moral centre of the family of nations. Lord Brennan declared himself to be an optimistic realist.
Michael Quinlan thought there was no prospect that a great power will accept being told ‘you cannot do this’. The present US administration is Hobbesian/Zionist. The question is how to make the UN more useful, including to the US, perhaps by nations providing more resources for peacekeeping. Lord Brennan said that studies could indeed identify what is wrong and propose changes. He had seen a change in American opinion in the past six months.
Brenda Bailey asked about the role of Roman Catholic NGOs at the UN. Lord Brennan said that the people who the Vatican sends to the UN are important figures. NGOs can indeed raise awareness. The 65 million RCs in the USA do have influence, but it is exercised with great circumspection!
David Hills raised the question of enforcement. The ICJ is weakened if no one acts on judgements handed down. The same would be true of rulings by the Trusteeship Council on ‘failed states’. Lord Brennan agreed that lack of enforcement is a major flaw. The Military Staff Committee never functioned. There has been some role for UN forces as in East Timor but intervention on a significant scale requires American initiative.
Peter Bishop asked about South Asia. Lord Brennan said that Vajpayee, facing an election, was making capital out of meeting with Musharraf. Any temptation to take military action against Pakistan would be damped down by the Indian generals and the US. A regional organisation under the broad aegis of the UN might be helpful if it could promote jobs and peace.
Michael Smart asked how the low public consciousness of the UN in Britain could be addressed. Lord Brennan said the starting point is to recognise the UN as a useful organisation. The difficulty is that the UN Association in Britain is weak and the Department for International Development will not provide funds.
Lea Neubert pointed to the unbalanced financing of the UN with the US providing the lion’s share and seeking influence in proportion. Lord Brennan said that nations would not budge on the issue of control of money. You might build some sort of tariff into the World Trade Organisation to form a UN Peace Bank. At Bretton Woods Keynes had argued for a fourth UN Body to act for the developing world.
[i] ‘All Members shall refrain … from the threat or use of force against the territorial integrity or political independence of any state …’ UN Charter, Article 2.4.
[ii] Namely the five permanent members of the Security Council: USA, UK, France, China and the Soviet Union/Russia.
[iii] Article 27.3 requires the concurring vote of all the permanent members, on all substantive matters.
[iv] Article 43
[v] Article 47
[vi] Article 51 of the UN Charter is very strongly worded: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN …..’
[vii] Robert Kagan, Of Paradise and Power: America and Europe in the New World Order, Borzoi Books, Alfred A. Knopf, 2003, ISBN 1-4000-4093-0. Its famous catch phrase is ‘On major strategic and international questions today, Americans are from Mars and Europeans are from Venus’.
[viii] Henry Kissinger, Diplomacy, Simon and Schuster, 1994, ISBN 0-671-51099-1
[ix] Henry Kissinger, Does America need a Foreign Policy: Towards a Diplomacy for the 21st Century, Touchstone, 2002, ISBN 0-684-85568-2.
[x] Article 108 says that before coming into force any amendments to the Charter must be ratified by ‘all the permanent members of the Security Council’. This gives them as effective a veto as they enjoy in the Security Council proper.
[xi] Article 96.1