Defence Minister Robert Hill appears to have adopted the adage that “attack is the best form of defence’’.
The adage often works well in soccer matches, but its application to world affairs carries grave threat.
Hill argues that Article 51 of the United Nations Charter should be changed to take account of different world circumstances as a result of rogue states having weapons of mass destruction and the threat of non-nation-states using them in acts of terror.
One of the key aims of the United Nations was to try to apply one of the four great progressive themes of the 20th century to nation states – namely the rule of law. And Hill’s ideas contradict some basic elements of the rule of law. These include objective rather than subjective tests; rules with universal application; and submission of individuals (or individual nation states) to the collective authority.
True, the collective authority of the UN (via the Security Council) is deeply flawed. It gives too much say to the victors of World War II. Hill is right on that. The world has changed.
Even so, the way Hill wants to change Article 51 would be to replace the objective with the subjective. And it would be to change a long accepted universal rule of international law with one bent to meet the circumstances of a few nations now.
Article 51 says: “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 United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’’
That has an objective test: armed attack. Hill would like that to be replaced with a subjective test: “When we feel threatened by a group or a state that we think has weapons of mass destruction.’’
He argues that the world has changed. With terrorists or rogue states in possession of weapons of mass destruction there is no longer the “lead time’’ there was when nation states went to war immediately before the establishment of the UN, he argues. History suggests otherwise. Hitler conducted Blitzkrieg – lightning war. The conflict over Iraq and its potential to use weapons of mass destruction has been going on for a decade.
Hill wants to change the long-standing, universal principle in Article 51 to fit the immediate circumstances that the US and Australia face.
Incidentally, by proposing the change, Hill is admitting that the charter as its stands does not permit a pre-emptive strike against Iraq. That is contrary to the US view of the charter. The US thinks that the charter would support a pre-emptive strike — despite its obvious words to the contrary. At least Hill can read and understand plain words better that his American defence colleagues.
Converting the right to self-defence into a right to attack invites the obvious question: where do you draw the line? A fuzzy line is tolerable where some independent authority (like a court or the Security Council) determines on which side of the line a particular case falls. But where one of the disputing parties takes it upon itself to decide, chaos and the rule of force replace the rule of law.
This is the fundamental challenge of the ghastly terrorist attacks. At the time of the collapse of the Berlin Wall humankind seemed to have at last recognised that human happiness and welfare are best pursued by: resolving international disputes by peaceful negotiation and transferring authority to use force to the UN; by liberal democracy and the rule of law; and by free markets (because command economies – fascist, communist or theocratic – always result in human misery). All the systems and isms had failed.
In the face of terrorism (another ism), the challenge for those who want to pursue liberty, happiness and human fulfillment is to resist the erosion of those several essential conditions to those pursuits – liberal democracy, the rule of law, peaceful resolution of international disputes and free markets.
We are in danger of flunking it. Now national and state governments of both persuasions have proposed or passed laws offensive to liberal democracy which should underpin individual rights. Individuals can be held without access to a lawyer and without family being notified for 48 hours.
Hill’s proposal to change Article 51 is looking at the problem from the wrong end. The problem here is not the words of the UN charter, but the UN’s institutional set-up and its failure to require (or at least aspire to) democratic forms of government within its member states. The authority that enforces the charter is flawed and undemocratic.
Sure, changing the UN and its members is a highly idealistic aim in pursuit of peace and human fulfillment, but it is better than eroding the values the values you are trying to defend.