UN Security Council has no responsibility to protect citizens behind state borders

The United Nations Security Council is, in many ways, an affront to democracy. It is after all, a self-appointed club of the strong and mighty with occasional, temporary membership extended to some poor cousins.

Democracy comes in many forms, but generally it is concerned with the principles of self-determination, participation, representation and rights. In its actions on the Syrian crisis so far, the Security Council has shown little interest in these things, or at least the Syrian people’s stake in them. But amidst the British parliament’s frustration of prime minister Cameron and US president Obama’s frustration at the Security Council’s “complete paralysis”, it is often forgotten that none of these are part of its charge.

Under article 24 of the United Nations Charter, the Security Council’s primary responsibility is for the “maintenance of international peace and security”. It says nothing about ethnic cleansing or civil war, nothing about genocide or mass rape, nothing about the lives of citizens behind state borders. It can be thought of as a police officer investigating a domestic disturbance, but one that is very rarely permitted to ‘enter the property’. Its main priority, above all else, is to prevent that domestic disturbance from spilling out onto the street.

The reason for this is sovereignty. Like democracy, this comes in many forms, but is generally synonymous with control, the inviolability of state borders and a monopoly on the use of force. “You stay on your side of the line, I’ll stay on mine and nobody will get hurt”, goes the logic.

In 1648, the Peace of Westphalia formalised this concept, but war between states remained a feature of international relations. After the second World War, the world’s leaders came together to form the United Nations. Among other things, they determined to “live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security”.

For the most part this seems to have worked, at least well enough to prevent a third outbreak of global conflict. Because the UN's architects adopted the Westphalian concept of sovereignty however, instead of the popular one in which it is conditional upon agreement of a 'social contract' between government and the governed, it has been less successful in addressing conflict within them.

Crux of the problem
Former Nato secretary general Javier Solana summed up the problem in a 1998 speech at a symposium on the 'Continuing Political Relevance of the Peace of Westphalia', in which he noted that "humanity and democracy [were] two principles essentially irrelevant to the original Westphalian order. 350 years after [it] . . . where does the sovereignty of a state end and where does the international obligation to defend human rights and to avert a humanitarian disaster start?"

In an attempt to answer this question, and in the absence of either an obvious threat to international peace and security, or Security Council unanimity, politicians have struggled to construct a variety of justifications for intervention in the past. Some of these have been more coherent than others. Right now it looks as though an intervention in Syria will be justified on the grounds of either humanitarian intervention or the "moral obscenity" of what appears to be a violation of the prohibition on chemical weapons by the Syrian regime.

Are these transparent attempts at cobbling some coherence together really necessary, or even useful? Perhaps, but with the continued failure of international law to provide a coherent route to intervention, it largely amounts to theatre. There are many reasons to refrain from intervention, but the real cause for such legal wrangling is fear, mainly of the ‘domino effect’: that with each intervention, each erosion of sovereignty, the international system is weakened and the likelihood of additional interventions increased.

A related fear, and one fuelled by the 2003 invasion of Iraq, is ulterior motive and the abuse of 'emerging norms', such as morally obscene violations of international law. Already the question is being asked, "if Syria, why not Egypt?"

Considerable efforts have been made to address these concerns, most notably by the International Commission on Intervention and State Sovereignty and the subsequent articulation of the Responsibility to Protect (R2P) doctrine. Despite this though, and the Security Council's unanimous decision to endorse R2P through Resolution 1674, legal authorisation of the use of force can still only be secured "through the Security Council, in accordance with the Charter".

Atrocities
Atrocities like the chemical attack in Damascus will happen again. And again, politicians and lawyers will labour in a vain attempt to make a square peg fit into a round hole. Eventually, they will tire, and either force the peg in, or give up. International law on the use of force is constitutive of state sovereignty and therefore state interests. The United Nations Security Council gives expression to conflicts of these interests, not the tools to overcome them. That Barack Obama, also a former president of the Harvard Law Review, can admit to being "comfortable going forward without the approval of the UN Security Council" says much in this regard.

There is a possible pathway to a better place. There's even a template (though it has had a lot of bad press lately). It's called the European Union. Speaking at that same symposium in 1998, Javier Solana noted "What sets this process apart from the Westphalian system is the willingness of states to cede elements of national sovereignty for the common good of a united Europe. It thus aims directly at eliminating those root causes of conflict that Westphalia could not overcome".

Until there is a pan-global effort of this sort, in which the interests of the system can be separated from those of its citizens, the route to intervention will continue to be paved by dithering and death.

Neil Brady holds an MA in political science at University College Dublin where he studied for a thesis on humanitarian intervention.

Twitter: @neilpbrady