Allen Buchanan and Robert Keohane's article "Precommitment Regimes for Intervention: Supplementing the Security Council" addresses an issue of profound importance, namely the legitimacy of the Security Council and the implementation of the Responsibility to Protect (RtoP).1 Buchanan and Keohane rightly note that the implementation of RtoP, with respects to pillar three—"timely and decisive response"—remains a function of Security Council assent.2 As RtoP neither constitutes nor proposes legal reform, the response of the "international community" remains prey to the veto power of the permanent five members of the Security Council (P5).
Many have argued that RtoP's key failing stems from its inability to redress the inertia that has too often constituted the international response to intra-state crises and the litany of "in-humanitarian non-interventions."3 Buchanan and Keohane seek to redress this record of inertia, noting: "The central problem with the Security Council is, therefore, not what it does, but what it fails to do."4 The crises in Rwanda and Darfur are the most glaring examples of this problem; and Buchanan and Keohane warn that "there is no evidence that this disposition toward inaction has been rectified."5 The authors discount the idea that the P5 are receptive to moral pressure, arguing that due to their unchallengeable power they are "not likely to suffer severe political or economic consequences for using [the veto] to thwart such interventions."6 On this basis, they argue that institutional reform is required to reverse this inertia. The proposal they offer, however, does not constitute a viable solution to the problem they so convincingly identify.
Two possible alternatives to the Security Council are discussed. The first, a democratic coalition empowered to intervene in the event of Security Council paralysis, is discounted, rightly I believe, due to its lack of sociological legitimacy.7 The second alternative, which they advocate, is a "precommitment regime" whereby "a set of democratic states could enter into a contract by which a democratic government would authorize intervention in its own territory in response to violence that the government was unable to control."8 Such an intervention would occur only if the P5 did not act.
There are three weaknesses in this proposal. First, the problem the authors seek to address is the lack of response to large scale intra-state humanitarian crises. The proposal, however, only addresses such crises within democratic states. There have been, however, very few instances of genocide, war crimes, ethnic cleansing, and crimes against humanity— the four crimes cited as grounds for intervention in the 2005 World Summit Outcome Document—within democratic states. Accepting the violence in Sri Lanka in 2009 as a possible exception, the major post-cold war humanitarian crises all occurred in nondemocratic states, most notably Rwanda, Sudan, the former Yugoslavia, and the Democratic Republic of the Congo. The ongoing violence in the Arab world, which has reinvigorated the debate on humanitarian intervention, is also taking place in nondemocratic states. This precommitment regime, therefore, is highly unlikely to ever be operationalized, and will have no effect on the far more prevalent occurrence of the four crimes in nondemocracies.
The second problem with Buchanan and Keohane's proposal is that provisions for such an arrangement already exist. Chapter VIII of the UN Charter sanctions the establishment of regional security arrangements; Article 52(3) "encourage[s] the development of pacific settlement of local disputes through such regional agencies," while Article 53(1) commits the Security Council to "utilize such regional arrangements." While the provisions of Chapter VIII reaffirm the primacy of the Security Council, regional organizations have in the past acted without explicit sanction but later received retrospective endorsement from the Council, as in the interventions undertaken by the Economic Community of West African States Monitoring Group (ECOMOG) in Liberia in 1989 and Sierra Leone in 1997. While the authors note that these interventions were largely unsuccessful, the legality of ECOMOG's actions was in little doubt, and there is, therefore, nothing in principle to preclude the future existence and operation of such regional arrangements. Indeed, NATO is arguably a "precommitment regime," albeit one with a more expansive remit than humanitarian intervention, while the African Union's 2002 Constitutive Act includes article 4(h), which permits the AU to intervene in a member state to prevent or halt atrocities. This idea, therefore, is not new: the infrequent application of regional security arrangements of this nature is a function of a lack of political will rather than the absence of existing legal permissibility, and thus the proposal does not constitute true reform.
The third and final problem is procedural. While the authors suggest that the precommitment regime would only act "if the Security Council failed to authorize an intervention in response to a grave humanitarian crisis,"9 this begs the question: Who decides? Deciding whether to intervene is not easy; it may well be that the Security Council, for correct reasons, will determine that intervention is not the right course of action. How is a precommitment regime to judge that the Security Council's inaction is indefensible? The genuine disagreements as to how to respond to the situation in Darfur illustrate that nonintervention is not necessarily universally seen as inertia. Additionally, it is likely that the Security Council will always justify nonintervention on the basis that it would be imprudent to intervene rather than publicly declare their disinterest (as was the case with Darfur), and thus confrontation between the P5 and the intervening coalition is likely. Therefore, while the authors are keen to avoid a clash between the precommitment regime and the Security Council, this proposal contains no guarantees against such an occurrence.
Too often the academic debate on RtoP lacks ambitious proposals for reforming the United Nations itself. Buchanan and Keohane's determination to advance proposals for tangible reform is commendable, and I share their belief in the need for innovative and radical change. They express the hope that their article will prompt "criticisms and suggestions" and provoke dialogue and new thinking on this issue. This is a hope I share.
1 Allen Buchanan and Robert Keohane, "Precommitment Regimes for Intervention: Supplementing the Security Council," Ethics and International Affairs, 25, no. 1 (Spring 2011), pp. 41–63.
2 UN General Assembly, Sixty-third Session, "Implementing the Responsibility to Protect: Report of the Secretary-General," A/63/677, January 12, 2009, p. 2.
3 Simon Chesterman, "Hard Cases Make Bad Law," in Anthony Lang, ed., Just Intervention (Washington, D.C.: Georgetown University Press, 2003) p. 54.
4 Buchanan and Keohane, p. 51.
6 Ibid., p. 47
7 Ibid., p. 55.
9 Ibid., p. 56.