One focus of Ken’s response to Eric Posner’s Slate piece is Eric’s claim that “the United States has invoked a new idea of the ‘unable or unwilling’ country, one that outside powers can invade because that country cannot prevent terrorists located on its territory from launching attacks across its borders.” I don’t know if Eric meant that the “unwilling or unable” doctrine is new in the Bush-Obama era, or is a post-Charter development, or is being invoked in a new way in the last decade. If he meant the first, then Ken is quite right that the doctrine is not new in that sense.
That possible disagreement aside, and despite Ken’s characterization of Eric as a “radical sceptic” about international law (whatever that means), I think Eric and Ken basically agree on Eric’s central claim that the security provisions of the U.N. Charter as written are not terribly efficacious and have been interpreted opportunistically by the United States in ways that comport with its global national security interests and responsibilities. Indeed, that appears to be a central claim of Ken’s terrific new book, and the central premise upon which he tries to craft a modestly useful role for the United States in the U.N. system. I could cite many passages in the book where Ken, like Eric, emphasizes the collective action problems that bedevil collective security, views the U.N. system through the lens of the muscular United States pursuing its national interests instrumentally, and pokes fun at the idealists who think the U.N. security system can through international law achieve global security governance. Here is one:
UN collective security faces a daunting series of obstacles in the way of ever becoming the system for international security – so daunting that it will likely never overcome them. In addition to those of the preceding chapter, we must add the juridical one of the literal language of Article 51 of the UN Charter. If taken seriously it would seem to require recourse to the Security Council for any use of force other than immediate territorial self-defense against an actual armed attack. Of course this is not how states actually behave and never has been – states’ inherent right of self-defense means far more than that – so if collective security is supposed to be based on Article 51, it is a fiction long since overtaken by state practice and a different understanding of inherent self-defense. In reality, Article 51 serves as a rhetorical tool for those wanting to criticize how a state, in particular circumstances, acts when the state does not seek collective security through the Security Council or at least Security Council authority.
And here is another:
Yet when liberal internationalism dreams, it dreams of overcoming anarchic and violent power relations through universal global governance. That is so even when liberal internationalists themselves, in the Obama administration and everywhere else in the world, are tired and a little bored with their own idealism. The dream presupposes two key things. First, it requires a profound diminution, at a minimum, of the effective sovereignty of states, at least where sovereignty is understood in its traditional way, as a “political community without a political superior.” Second, “global governance” sufficient to take over where the anarchy of sovereigns leaves off requires a form of global constitutionalism in an ultimately federal world, at least weakly, a world of states subject to universal global law and enforced by global institutions of law. Some academic and policy literature devotes itself to denying the second proposition as fulminations of “right-wing bloggers and some politicians,” so as to turn it into a mere strawman claim. The international community, confronted with objections to its utopian appetite, suddenly puts on a modest countenance and downcast eyes as if to say, “But that’s not us, we have no grand desires to govern anything.” That is easy to say since the United Nations does not govern very much now.
Moving to the particulars of Ken’s post, Ken says little about Eric’s central claim that the United States appears to be relying on a super-thin-to-the-point-of-non-existent conception of consent in Pakistan, at least if the recent Wall Street Journal story is to be believed. I doubt that Ken would deny that the conception of consent outlined in the Journal article is, as Eric said, self-serving and probably not consistent with the Charter. And as for a possible self-defense argument based on the “unwilling and unable” standard, Ken is right that this is not a new U.S. position. But it is also true that the doctrine as currently practiced by the United States is legally unsettled, globally controversial, and viewed by many as an opportunistic interpretation of international law – which is Eric’s basic point, and again, one with which I doubt Ken disagrees.
I am not suggesting that Ken and Eric are on the same page theoretically about international law. Eric embraces a rational choice approach to international law, and Ken thinks rational choice approaches to international law are unduly reductive (though Ken’s book, like Eric’s theory, evinces a thoroughgoing instrumentalism that gives a big role to national interest and the distribution of national power). But setting aside this methodological skirmish, I think he and Eric view the U.N. Charter, and the United State’s posture toward the Charter, very similarly.