Allan Gerson: Missing From US Foreign Policy Debate: The Role of UN Charter Principles

There was a time in the not too distant past where no American President would think of going to the annual opening of the UN General Assembly session in September without expressing America's allegiance to core UN charter principles. This is only natural. After all, the United States is the principle draftsman of the UN Charter. So while we may rail against UN actions we have always done this more in sorrow than in anger. We have always proclaimed that the UN Charter has much to teach us about restraints on the use of force and respect for human rights and the territorial integrity of all nations.

Seen in this light, it was quite strange to see in President Obama's address to the UN General Assembly this last September no mention whatsoever of UN Charter principles. Perhaps this might have been expected of Mitt Romney, but Obama was the same man who, in his first address before the United Nations, went out of his way to laud the advantages of multilateralism and state that he would be charting a new course in which we would be more respectful of the collective will of the community of nations.

So what happened? Surely this was not by accident. Presidents' speeches before the United Nations first get vetted through the White House, the State Department and the US Mission to the United Nations. And, this year, with all the unfolding crises in the Middle East and elsewhere, would have been a particularly important year to do such vetting. By contrast, at this year's General Assembly session, the Foreign Minister of Russia, the Prime Minister of England, and Egypt's new president, among others, all went out of their way to speak of the need to strictly adhere to UN Charter Principles. So, why instead of the United States taking the lead in expressing fidelity to UN Charter principles did we abandon that role and leave foreign leaders to take up that role?

Could it be that President Obama simply saw it politically inopportune to reiterate his prior commitments to the UN system? Could it be that he did not want to be challenged on US compliance with international law as he pursues an aggressive anti-terrorism policy including unprecedented wide-spread use of drones?

We may never know the answer to these questions for the simple reason that neither the press nor his opponent, Mitt Romney, seems particularly concerned with this issue. After all, Mitt Romney had dismissed the United Nations as "an extraordinary failure" and charged in May 2012 that President Obama had "subcontracted US Foreign policy to Kofi Annan and the United Nations."

Put both these factors together and we see that for the first time in American history that even lip service to UN Charter principles has been abandoned. This is a pity for UN Charter principles are in fact American principles. They can serve as a guide and can certainly help justify American's position to the rest of the world.

Indeed, prior administrations -- Republican and Democrat alike -- have looked to UN Charter principles as justification, if not guide, for key foreign-policy decisions. The Reagan administration dealt with Cold War crises, the Israel-Lebanon war, terrorism, and the US intervention in Grenada by looking to UN Charter principles, as an integral, if not exclusive, part of its decision-making calculus. So did President George H.W. Bush at the outset of the first Gulf War. He spoke of American intervention as necessary to advance "the rule of law to establish a new world order, an order in which a credible United Nations can use its peacekeeping role to fulfill the promise and vision of the UN's founders."

On the eve of the 2003 Gulf War, President George W. Bush, in an effort to obtain Arab League support at the UN Human Rights Commission, instructed his emissary, former UN Ambassador Jeane J. Kirkpatrick, to carefully present the argument that our action in Iraq was fully consistent with UN Charter principles of self-defense.

Consider the following examples where UN Charter principles might serve as a guide.

- Iran. The UN Charter commits every member-state to honor the territorial integrity and political independence of every other state. (Article 2:4). Iran's calls at the UN and elsewhere for the destruction of a member-state, Israel, are clearly inconsistent with that commitment. That fact provides ample ground for stripping Iran of UN membership. Yet, neither presidential candidate has mentioned, let alone launched, such a campaign, although it remains a moral stance around which to base policy.

- Libya. UN Charter Article 51's prohibition on the use of force except in self-defense against an armed attack does not carve out an exception for humanitarian intervention. The UN Security Council can, however, create such a right in particular instances and this is what Russia and China thought they were signing up for when they joined US efforts to authorize NATO air-strikes to prevent a bloody onslaught against the citizens of Benghazi. But the US authorization of NATO air-strikes to kill Moammar Gaddafi came long after the humanitarian threat had vanished.

Today, Russia and China's readiness to veto any UN Security Council resolution authorizing humanitarian intervention in Syria, where far more lives are at stake, in what they perceive as America's double-cross of UN Security Council authorization in dealing with Libya. It might be good for Obama and Romney to ponder the consequences of those airstrikes, which both have lauded without a moments' concern as to their compatibility with UN Charter principles or their political repercussions.

- Israel and red lines against Iran. Article 51's prohibition against the use of force certainly does not require that where nuclear weapons are concerned one must wait for the first bomb to drop. Rather, the prohibition of the use of force must be read in the context of capacity and intent. Such a determination requires day-to-day assessment. President Obama could have made reference to Article 51 to make the case for American deterrent action in a way that might well have addressed all parties' concerns.

- Israel and the Palestinian Territories. Referring to core UN Charter principles does not mean that they necessarily become the exclusive basis of our policies. Sometimes it is more prudent to acknowledge that legitimate differences about the law exist and that it is better to avoid a legalistic approach so as not to distract from pursuing a negotiated resolution. The Reagan Administration took this position with regard to Israeli settlements and the status of Jerusalem. It continues to serve as a good model.

- Iran and the listing of the MEK by the State Department as a Foreign Terrorist Organization. On September 28th, 2012 the State Department finally removed the MEK, an Iranian dissident group, from its list of Foreign Terrorist Organizations, bowing to the US Court of Appeals for the District of Columbia which had directed the State Department to do so by October 1st, unless they could provide compelling grounds for the continued listing. For years, the State Department had stonewalled efforts by Congress to require precise reasons -- not diplomatic expediency -- as the grounds for designation of organizations as a terrorist entity, especially if it had renounced violence.

Of course, in and of itself, UN Charter principles provide no clear answers for how to deal with Afghanistan, Iraq, the war against terrorism, or any one of the myriad crises that confront U.S. foreign-policy makers. But, as no less a "realist" than Henry Kissinger has come to acknowledge, Americans are imbued with the belief that the rule of law should guide our conduct of foreign affairs. We need not embrace the UN Charter, but we ignore its principles at our peril.