Binding Agreement or Just Guidelines

by Wesley Gibbs

When reading Dr. Miller’s article I found myself agreeing with the logic behind many of his points, mainly those associated with the lack of invincible ignorance for a soldier and the ones surrounding a soldier’s duty to obey the law. The main issue that I had with the article was surrounding the United States being bound under Constitutional law to follow the United Nations Charter. I am not so foolish as to try and argue that the Constitution doesn’t require treaties to be considered law. Rather, I mean to argue that the treaty with the UN holds no power over the US or its actions.

First, I figure that I should explain what I mean by the statement that the UN treaty hold no power over the US or its actions. A treaty is a contract or agreement reached by two or more states. It is only valid for as long as all sides agree to uphold and follow the guidelines of the treaty. A treaty cannot be absolved by one side, it is required that all sides absolve the treaty (sort of, I’ll explore this point in more depth later in my paper). I mean to prove that it is almost impossible for the UN treaty to be binding to the US, and that in fact the UN has itself failed to follow its own Charter in past instances. By proving this I mean to show that because the UN Charter isn’t binding to the United States, the soldiers in the US military do not have a moral obligation to disobey orders that are contradictory to the UN Charter.

Treaties have existed throughout history, and they have always relied on the fact that the participants of the treaty are willing to continue in their participation of the treaty. The problem here is that the participation by the states has always been dictated by the possibility of reprisals. In treaties, either all sides are on almost equal footing or one state or allied group stands higher than the others do. In the first case, the treaty is maintained by all sides because of the fact that if one side tries to break the treaty then the other side has the capability to hold the first side to account. In this case, it is normally quite common that when the treaty is dissolved by both sides it is because they have gone to war or at least both taken some sort of military action. In the second case, the treaty is maintained because it is beneficial to the most powerful side. This side will not break the treaty as long as it stays beneficial to them, and if the other side(s) will in the majority of cases not break the treaty because they can be easily held to account by the powerful member of the treaty. The powerful member of the treaty can break it whenever they want though because there is no one to hold them accountable. The other side lacks the power to force the more powerful state’s commitment, so all they can do is complain about the situation. When this situation arises between two states, where one is the powerful side of the treaty, there is another option that the powerful side can take. They can stick to many of the points that are within a treaty, and only ignore the particular ones that annoy them at a certain time. Again the other side of the treaty lacks the ability to force the powerful side to commit to the treaty as a whole.

When the US enters into a treaty, the treaty becomes US law by way of Article VI of the US Constitution. All of the treaties that the US currently enters into fall into the second category of treaties mentioned earlier (powerful state v. other state or states). This is due to the fact that, as we have discussed in class, the US is the world power rather than one of the world powers. There is no state that has the ability to match the US in military or economic power (most people only look at military as being necessary to enforce issues, but economic power plays just as large a role if not a larger one). Due to the status of the US, it has the ability to absolve treaties or parts of treaties as it sees fit. Since the UN Charter is the treaty between the UN and the US, the US can ignore the Charter if it wants to without fear of any real repercussions. The US military is the top in the world and has the ability to resist any possible military action by the UN (part of this is due to the abundance of nuclear arms owned by the US). The UN could try to enforce some kind of trade sanctions, but this is where the economic power of the US comes into play. Such sanctions would have a negative effect on the US after a certain period of time, but it would also have very negative effect on the rest of the world due to the dependence of other nations on the well being and buying power of our economy. This is proven due to the amount of jobs that US businesses outsource to other countries, as well as the amount of things that the US imports from other countries (specifically, China would suffer a huge economic crisis due to the fact that there exists no other country that can buy all of the products that they have produced and continue to produce for the United States). Thus the United Nations couldn’t actually force the United States to comply with the Charter if the US doesn’t want to.

The international form of the treaty can’t survive as binding law, but what about the fact that the treaty becomes United States law as ordained by the US Constitution. I would put forward that the abolishment of the UN Charter as binding law helps to solve this issue. The treaty as it is written is what is supposed to also becoming binding US law, but since the treaty isn’t really binding to the US, it can be changed. The US can decide that there are particular segments of the treaty that should no longer apply to it, and can thus change the way that the treaty is written and applies to it. Since the UN cannot force compliance then the US can consider this new version of the treaty as the one that it will follow from now to whenever it decides to make more changes or it is no longer the world power. This new treaty is what would now become US law as dictated by the Constitution. This allows the US government and military to act within the guidelines and laws that apply under the Constitution. This then lets soldiers take part in wars and conflicts that might go against the UN Charter, and yet not have a moral obligation to disobey the orders that send them to war.

The other point that needs to be explored is whether or not the UN Charter has any binding value outside of the way that it is forced to deal with the US. The Charter has failed as binding treaty to the nations within the United Nations because the UN has failed to act in accordance with its own Charter in different instances throughout history. One instance that is quite recent is that of the situation that took place in Rwanda in 1994. This incident involved the killing of between 500,000 and 1,000,000 Tutsis and Hutu moderates in what has become referred to as the Rwandan Genocide. The UN Charter considers the crime of genocide to be a violation of human rights, and states that the members of the UN should take measures to prevent and punish the act of genocide. The problem with the Rwanda situation is that the UN did not authorize intervention in Rwanda in order to stop the genocide. Eventually a force was formed called the United Nations Assistance Mission for Rwanda (UNAMIR), but the force was too small to be effective at stopping the genocide and its request for support from UN member nations went unanswered. In failing to take effective action against the genocide in Rwanda, the UN failed to enact a part of its own Charter.

Since the UN failed to follow its own Charter in response to a blatantly obvious immoral act, the question arises about whether or not this Charter is a binding treaty to all parties involved from a legal standpoint. The fact that the UN as a whole decided not to act is irrelevant because the Charter says that genocide is under international law a crime, which the members are supposed to prevent and punish. Having failed to do what it could to prevent genocide, the UN has gone against a part of its own Charter. Since the UN as a whole failed to act in accordance with its own Charter, it cannot possibly expect it individual members to abide by a Charter that the UN as a whole chooses to ignore whenever the situation that has risen is inconvenient. Thus I would propose that since the UN is able ignore its own guidelines (which are supposed to dictate the actions that it takes), then they are absolving the individual nations within the UN from acting according to the Charter. Since the Charter is no longer binding, it cannot really be considered a treaty but more a set of loose guidelines that the UN can follow. Since it is no longer a treaty, it no longer becomes a part of US law. US soldiers have a moral obligation to act within accordance to US law, and so they no longer have a moral obligation to disobey orders that order them to fight conflicts that the UN does not authorize.

The UN cannot expect its Charter to be binding when it lacks both the ability to enforce it, and it lacks the dedication to follow its own Charter whenever it is inconvenient to do so. If the Charter isn’t binding then it loses its ability to truly be a treaty, thus nullifying its application to US law through the Constitution. US soldiers have a moral obligation to follow the Constitution and its laws, but they are no longer morally obligated to disobey orders that contradict the UN Charter.