When Libya was faced with United Nations (UN) sanctions in the early
1990s, it was a relatively weak state in a confrontation with a relatively
unified international community. Lacking coercive resources or powerful
allies, the Libyan strategy to undermine the sanctions rested on
appropriating the symbols and norms of liberal internationalism and
deploying them in a counterattack. Because the proponents of the sanctions
had based their case in the Security Council on the norms of due process,
respect for international organizations (IOs), and peaceful dispute
settlement, international support for the sanctions was sensitive to new
interpretations of these principles. Libya's strategy took advantage
of this fact and, by consistently pressing a reinterpretation of liberal
internationalism and of the norms of the Council, it was able to
delegitimize the sanctions and threaten the legitimacy of the Council
itself. Quite surprisingly for an Arab nationalist dictatorship, Libya
publicly championed liberal internationalism and sought to reinforce the
legitimacy of international law and organizations. Libya's tactic
created a dilemma for the prosanctions states: continuing to insist on the
sanctions regime in the face of rising defections by UN members increased
the risk to the credibility of the Council.1
Drezner identified in theory the possibility of this kind of
dilemma in Drezner 2000.
Faced with a
trade-off between defending sanctions and defending the Council itself,
the United States and United Kingdom (UK) eventually agreed to a
compromise in 1998 that they had earlier rejected. Their interest in
preserving the power of the Council won out over their desire to maintain
a hard line against Libya.
The history of the Libyan sanctions case reveals a number of themes of
interest to international relations (IR) theorists. In the specific crisis
between the two coalitions, it demonstrates that power politics is far
from limited to military confrontations. Militarily weak states such as
Libya can use resources that are endogenous to international society as
levers against militarily powerful states. More generally, it shows how
international politics is often carried out using tools derived from or
controlled by international institutions, and that perceptions of
legitimacy are crucial to these institutions. However, this structure is
at the same time vulnerable to reinterpretation and contestation. This is
instructive at a time when the nature of U.S. foreign policy and its
relationship to international institutions is under debate. Finally, it
illustrates empirically a complementary relationship between norms and
strategic interests that many others have begun to chart conceptually.
This article examines the arguments used by the two sides to convince
third-party states to either support or oppose the sanctions regime.2
The UN sanctions regime began in 1992 and did
not formally end until 2003, although the sanctions were suspended in
1999.
The debates over the original sanctions resolutions set the
terms of the debate and anchored it in the norms of liberal
internationalism. The first two sections of the article set out the
concepts and methods used in the empirical analysis and chart the
operation of legitimation and delegitimation in power politics. Then, the
bulk of the article charts the debates over the resolutions and then the
subsequent back-and-forth between the parties as they reacted to each
other's arguments and maneuvering. I highlight the contestation over
the appropriate interpretation of norms of due process, procedural
justice, and the nonuse of force. The final substantive section argues
that the compromise of 1998 was generated out of this contestation and
that it was the fear of delegitimation of the Council that motivated the
United States and the UK to accept it. Comparing my explanation to two
competing accounts of the compromise helps to both situate the argument
relative to others and to show its limits. In conclusion, I point to three
generalizations that one can draw from the case (about legitimacy,
contestation, and material power) that can motivate research in other
empirical cases.
Concepts and Methods
This article's approach cuts across several intellectual currents
and takes positions in a variety of methodological controversies. These
controversies are worth making clear up front. Although this is not
primarily an article about methodology or epistemology in IR, the nature
of the empirical problem under research here made it necessary to draw
from different approaches in novel ways. This may be of interest to others
analyzing interesting but unconventional puzzles in the international
system. A few words, therefore, are warranted to situate my approach
relative to three ongoing controversies in IR. The three relate to, first,
the relationship between norms and strategic choice; second, the nature of
the power of IOs; and third, the significance of legitimacy to the
international system.
This article explores states' use of international norms and
institutions in the pursuit of strategic interests. As such, it straddles
the realms of strategic choice and of norms, two worlds that are
traditionally kept separate in IR theory. By positing from the start that
states are strategic actors embedded in a socially constructed
environment, the article suggests that constructivism and rational choice
are essential complements to each other in IR rather than antagonists, as
is sometimes supposed. Several important recent papers have developed the
conceptual foundations for such a position,3
and what follows
here is an empirical case that demonstrates the payoff that comes from
joining the two. The outcome of the case is similar to what Schimmelfennig
finds with respect to European Union (EU) and North Atlantic Treaty
Organization (NATO) enlargement: it is “the result of social
construction on the basis of intersubjective ideas but the construction
was done by strategic actors using these ideas instrumentally for their
selfish purposes.”
4 Second, this article enters into the debate over the power of IOs. The
typical framing of debates in academic IR about the nature of IOs is to
look for evidence of their power in one of two ways: either (1) by asking,
“Do states comply with the decisions of IOs when it is costly to do
so, and if so, why?” or (2) by asking, “do IOs shape the
interests of states, and if so, how?”5
On the first question, compare, for instance, Mearsheimer 1994/95
(“[institutions] have no independent effect on state
behavior,” p. 7) to his institutionalist critics such as Keohane and Martin 1995 (“institutions operating
on the basis of reciprocity” are unavoidable in “any lasting
peace,” p. 50), and Chayes and Chayes 1995
(“[states] do not negotiate agreements with the idea that
they can break them whenever the commitment becomes
‘inconvenient,’ ” p. 7). On the second question, see
Finnemore's account of changing interests as compared to
Gruber's story of institutions imposed by the strong on the weak.
Finnemore 1993; and Gruber
2000. In Barnett and Duvall's typology of power for IR, the
first question involves a debate over whether “institutional”
power exists at all in the international system, while the second question
is about whether institutional power can be “constitutive” of
actors or merely “interactional.” Barnett
and Duvall 2005.
One can conclude that IOs are powerful if
the answer to either of these questions is yes. My approach is different.
Reflecting an ontological starting point in which states are modeled as
strategic actors in socially constructed contexts, I see the power of IOs
as contributing to shaping the context of action for states.
6 See Johnston 2001,
whose emphasis is on cooperation rather than contestation.
This
effect might come about if the IO generates new kinds of resources that
states find useful, or if the organization shapes their interests through
socialization. This article looks only at the former, but in either case
the existence of the organization affects the structure of payoffs faced
by the state as it contemplates its options. For instance, in the
U.S.-Iraq crisis of 2002–03, American decision makers believed that
winning the support of the UN Security Council for regime change in Iraq
would increase their power relative to Iraq and to third-party countries.
Conversely, these decision makers also knew that failing to gain the
support of the Council would increase the costs of a U.S. attack. In both
directions then, the existence of the Council affected the strategic
environment in which the Bush administration had to make its
decisions.
7 In the long run, states can make
or remake international institutions, but in the crucible of a crisis they
generally must accept them as they currently exist. This is true even for
strong states.
The potential to reduce the costs of war was the
incentive that encouraged the United States to invest in the effort to win
Council approval in 2003.
8 Finally, this approach to power focuses on the importance of
legitimation to international institutions. Being seen as legitimate makes
an institution an attractive resource for states. For states that see an
institution as legitimate, it contributes to the process of socialization
that can shape their perceptions of their interests. For those states that
do not find an institution legitimate, it provides a means to manipulate
those that do. A legitimized institution can delegate some of its power to
others through the medium of symbols. The symbols of an institution can be
used by others in ways that further their interests.9
In the UN's case, this might mean
peacekeepers' blue helmets or the Council's imprimatur on a
resolution. International institutions lack instruments of direct
coercion, and so the control that they have over access to their symbols
may be one of few levers in their control to influence the behavior of
states. IOs have power over states to the extent that states are willing
to “pay” for the use of the IOs symbols, and the symbols are
valued to the extent that the organization itself is seen as legitimate in
the international community. This can be seen in the rhetorical power that
comes from being associated with both informal institutions (such as the
rules and procedures of international law) and formal organizations (such
as the UN Security Council).
At the broadest level, this research is a study of how power politics
works in interstate disputes. The resources that states bring to bear in
this case are intersubjective—they have value as tools of power
relative to other states only because actors believe them to be
powerful—but the model of states themselves is very much that of
traditional IR: instrumental, self-regarding, strategic actors. I do not
examine the original construction of the resources the actors use.10
Crawford provides a model of how these
resources might be created out of culture, beliefs, and identity; see
Crawford 2002. Where Crawford looks at how new
agreement on old controversies (such as the ethics of colonialism) might
be achieved through argument, Mattern studies the disassociative effect of
crisis and argument. Mattern examines how interstate disputes can
undermine existing understandings of identity and community and yet
simultaneously the representational force of language/power can
reconstitute them. Mattern 2004.
This
is not in question here because the states involved in the dispute simply
made use of what tools were already available to them. I also do not probe
the outer limits of intersubjective power to see how far interpretations
can be stretched before they are rejected by the audience.
11 Johnstone nicely situates the Security Council
within an “interpretive community” that judges the
plausibility of rhetorical claims made there; see Johnstone 2003. This draws on Habermas's interest
in the constraints that exist on communicative action because of the
public commitments that underlie intersubjective meaning in the first
place. See also Heath 2003,
23–24.
I also do not presume that arguments need
necessarily be related to the “truth” to be powerful. There
are many interesting ways in which validity claims make arguments more
powerful,
12 Also indebted to Habermas, Risse
identifies a mode of international politicking (“argumentative
rationality”) where power accrues to actors who attach their
positions to accepted understandings of what is true; see Risse 2000. Also see Lynch
2002.
but the Libyan case shows also how even (presumably)
cynical uses of international norms can affect the outcome of interstate
disputes.
In the literature on economic sanctions, it is conventional to focus
on the incentives faced by potential enforcing states to comply or defect
with the regime. These decisions are complex, and states must consider a
variety of costs and benefits, including foregone trade, reputation costs,
the likelihood of success, and the value of the underlying principle the
sanctions are intended to defend. Multilateral sanctions are even more
complex than unilateral sanctions because they introduce the challenges of
managing cheating, free riding, and incomplete information about
others' intentions. Such situations lend themselves well to
multivariate analysis of expected utility and to game-theoretic models of
states' options.13
But these approaches should not lead one to neglect
the important socially constructed nature of the decision situation. In
the case discussed below, the instruments with which Libya pursued its
strategic interests, and the goods that they sought in the compromise,
were in part intersubjective in nature. Status and prestige, for instance,
are valuable to states because they are constructed out of a shared
understanding of a normative hierarchy. Understanding the strategic nature
of Libya's response requires attention to the social, intersubjective
facts of symbols and institutions that constitute the resources available
to rational actors and the terrain on which their political interactions
are played. The origins and functioning of these resources are not part of
the rationalist paradigm, even though their use in the pursuit of
strategic interests is certainly compatible with it. Moving outside the
rationalist approach does not mean that one begins by assuming that states
are acting irrationally. Some authors who focus on “rogue
states” are in danger of falling into this trap. Doxey's useful
review of sanctions episodes begins its treatment of the Libyan case by
noting that “Libya is a maverick state” and infers from that
that little can be predicted or understood about Libyan President Muammar
Qaddafi's motives or behavior.
14 A more productive approach
comes from exploring the construction of the decision situation in which
actors find themselves.
These are the conceptual foundations on which the empirical research
of this article is based. Although there is much controversy over each of
these three positions, and a full defense of them is beyond the scope of
this article, it is useful to be explicit about them. This is for two
reasons. First, disagreements over the interpretation of the Libyan
sanctions case can, in part, be traced back to disagreements embedded in
these more conceptual debates. Second, the empirical case helps shed light
back onto these controversies. Thus, the payoff of the case is in part
that it shows empirically the value of making these methodological
choices.
Legitimacy, Power, and Contestation
Strong actors prefer to exercise social control through the use of
legitimate institutions than through direct coercion because it generally
carries lower social costs.15
Hurd 1999. The costs of becoming
“entrapped” are considered below.
When actors believe
that a rule or institution is legitimate, they have an internal bias in
favor of compliance.
16 My approach relies on
a subjective definition of legitimacy: an institution is legitimate for an
actor only when the actor believes it to be. This is appropriate given my
interest in observing the behavioral implications of legitimation in IR.
An objectivist conception of legitimacy, as used for instance by Buchanan,
relies on an external standard to assess whether the actor's belief
in legitimacy is well-founded or not. See Buchanan
2003. It is ironic that the objectivist approach is necessary to
get at normative questions about the ethics of institutions, while the
subjective approach is more useful for “scientific”
explanations of behavior.
Hegemons that can instill this belief
regarding institutions that they favor are thereby able to perpetuate
their advantage more efficiently than they could through direct force.
17 The symbols associated with a legitimized
institution can be appropriated by other actors and used as resources of
power in their own right. Sometimes these take the form of public goods,
available to all, and sometimes they are controlled by gatekeepers. Norms
are classic examples of the public-goods type of symbols: any player can
make a rhetorical defense of its actions in the language of liberal
internationalism, for instance. The only check on the misuse of these
norms comes from the limits of what the audience is willing to accept as
meaningful.
18 On the other hand, the
symbols of UN peacekeeping (blue helmets, neutrality, and Council
approval) are an example of symbols managed by a gatekeeper: they can only
be used by agents who have the approval of the Security Council, and the
Council can impose conditions on (extract “payment” for) the
use of its symbols.
19 Although legitimated rule is cheaper to enforce than is coercion, it
carries dangers as well. Legitimacy is lost if the hegemon is too often
interpreted as itself violating the rules of the game. Because
“hypocrisy” is dangerous to legitimation, hegemons can find
themselves entrapped by their own institutions and pressured to act in
ways that they would rather not.20
This might come about in obvious ways, as when the United States failed to
convince the Council in 2003 to approve the Iraq invasion and then paid a
premium for going ahead unilaterally, or in subtle ways, as when aid
agencies let the norm of rescuing women and children first trump their
stated objective of saving those in greatest danger.
21 In addition, legitimated power generates forms of
opposition that are different than those that arise in reaction to
coercion. When the power of a legitimated institution is used to achieve
favored outcomes, the results are vulnerable to competing players who
present a different interpretation of the institution, one that either
points to a different legitimate outcome or one that delegitimizes the
institution altogether. The need to reproduce the legitimacy of the
institution over time opens the possibility of “competitive
reinterpretations” of its meaning. The social and intersubjective
nature of legitimacy means that it is at once a source of great structural
power for institutions but also uniquely fragile. Reinterpretation is not
really an option when faced with physical coercion, but it can be a
powerful strategy for undermining the power of legitimated
institutions.
22 This incompleteness inherent
in the authority of all social institutions leads Connolly to declare the
“ambiguity of authority” as a general condition. See Connolly 1987, 20–21.
The contestation over, and ambiguity of, norms is an important aspect
of world politics that is often overlooked in IR, even among
constructivists. Constructivists and others in IR have often struggled to
establish that the fact that while international structures such as
balances of power and arms races are socially constructed, this does not
mean that they cease to exist as soon as one actor “changes its
mind” about their meaning. But in working to make that case,
constructivists have often overstated the consensus that exists over
norms. Claude, who was certainly a constructivist in this context, made a
convincing case in an important article in 1966 that the strength of the
UN lies in large measure not in the application of material power in order
to change states' behavior, but in the ability to confer or withhold
the legitimation of the international community on states and their
acts.23
Claude pointed to the political power of statements
by organs of the UN, and recognized that the source of that power is the
grant of legitimacy that is involved when states behave as if these
statements are important enough to fight over. However, Claude's
image of legitimacy and authority was something of a one-way street,
running parallel to the international legal process, along which states
might cede legitimate authority to an interstate organization, which then
“stores” it to dispense when called on. Similarly,
explanations for the spread of norms based in “epistemic
communities” frequently take this approach. For instance,
Finnemore's study of the role of the UN Educational, Scientific and
Cultural Organization (UNESCO) in the spread of national science policies
among states sees the IO as norm-suppliers and states as buyers,
consumers, or learners.
24 Competition and uncertainty over the meaning of
norms, along with the politics that this engenders, is left for others to
explain.
The uniform image of centralized, legitimacy-supplying authority
exaggerates the coherence of legitimation. The construction of a
legitimate institution is never complete in the sense that all relevant
actors accept the construction, or accept it in the same way, or that it
is self-perpetuating. It is always “under construction.” The
incompleteness expresses itself in many ways. For one, communities are
never unanimous in their assessment of the legitimacy of institutions and,
therefore, never entirely settled on their interpretations of the content
of the institutions' symbols. There are always dissenting opinions
within a society, inevitably accompanied by struggles and contests to
declare the legitimacy of one set of interpretations and not another. The
struggles over authority are perhaps the most interesting aspects of
social affairs and are often attended by great tragedy and violence. In
the case of such instability, institutions must be constantly reinforced
by the supportive behavior and statements of actors. Absent this
reinforcement, institutions will collapse. Where different interpretations
of legitimacy are held by different actors, the strength of the
institution comes from the degree of overlap among them. A relatively
solid institution is merely one where interpretations coincide to a
greater degree. There may also be inconsistencies within an actor itself,
in that an actor might have attachments to several institutions or norms
simultaneously that could require divergent or even opposite reactions to
a situation. These inconsistencies can last for extended periods and
culminate in a crisis only when the actor faces a situation that calls on
both internalized beliefs at the same time.25
Opponents of the status quo can use the natural incompleteness of
authority to undermine the existing power relations in the system. Much of
the “normal politics” in domestic legal and political life
involve efforts to exploit this ambiguity inherent in the service of
parochial interests, both by the weak and by the strong. This is obviously
possible for the strong, but it is particularly interesting in the case of
the weak. Sociologists and anthropologists report that resistance works
best when presented in terms borrowed from the language of the authority,
and where the point is not to challenge the existing authority head-on but
to argue that the existing authority is not being true to its professed
values. For instance, Epstein has shown how the popular radicals in
England in the late eighteenth and early nineteenth centuries relied on
the established traditions of English constitutionalism to make their case
for reform or revolution. The rhetoric of the new and competing idiom of
Thomas Paine and the American and French Revolutions was present, but
secondary to “the borrowed language of the past.”26
In similar terms,
the Puritans of the English Revolution first declared their grievances in
a Petition of Right, recalling the Magna Carta.
27 Scott
sees this as a general pattern, suggesting that most social revolutions
begin as demands that the existing authority simply better honor its
commitments.
28 These cases support the common observation that
material weakness does not necessarily mean powerlessness. The weak might
find power by reinterpreting the values of hegemonic actors in ways that
the hegemon cannot simply dismiss.
The UN Security Council is an excellent location to observe such
mobilizations in international politics. The dominant states are more
secure in their dominance to the extent that the Council is accepted as
legitimate, and as a result they are concerned with maintaining the
Council's legitimacy. If legitimacy is a source of power for the
Council and for its most powerful members, then they have an interest in
responding to threats to that legitimacy. In the earliest debates on the
founding of the UN, the dominant states had to reconcile the interest in
egalitarianism and democracy with the desire for veto control over the
Council. They legitimized the inequalities of the Council by granting
informal assurances about their limited intentions for the veto, and about
their commitments to democratic procedures in the Council. These promises
increased the costs for the future of promiscuous use of permanent
members' privileges. In the case of the Libyan sanctions, a weak
state pursued a strategy of calling back into question these commitments
of the great powers and used the rhetoric of the United States and the UK
to undermine their preferred policy.
UN Sanctions Against Libya
The Lockerbie episode entered the Security Council's agenda on 30
December 1988 with a statement by the Council President condemning the
bombing of Pan Am Flight 103 (which had crashed in Lockerbie, Scotland,
nine days earlier). By 1990, Western intelligence identified two Libyan
agents as centrally involved in planting the bomb, and the United States
and the UK began a campaign to hold a legal trial of the two and perhaps
others. To pressure Libya to cooperate, the UN Security Council issued two
resolutions imposing sanctions against Libya, the first (Resolution 748)
in March 1992 and the second (Resolution 883) in November 1993. An earlier
resolution, 731, provided the backdrop to these decisions in that it
defined the changes in policy that were required of Libya. When Libya
ignored this first resolution, it provided the rationale for the
sanctions. Resolution 731 noted four demands, which were first spelled out
in two statements of the United States, UK, and France in November 1991
and later pressed with the enforcing Resolutions 748 and 883. These
demands were that the government of Libya surrender for trial all those
charged with the bombing crimes and accept complete responsibility for the
actions of Libyan officials; that the government disclose all it knew
about the crimes, including the names of those responsible and allow
access to witnesses, documents, and other material evidence; that it pay
appropriate compensation to the victims' families; and that it commit
itself to cease all forms of terrorist action and support to terrorist
groups. The first three demands were contained in a joint U.S.-UK
statement, and the fourth in a United States-UK-France statement.29
For details of the joint U.S.-UK statement of
27 November 1991, giving the four demands, see The Independent
(London), 28 November 1991, 1.
The three resolutions of the
Council did not spell out these demands but rather made reference to the
two statements and then expressed, in Resolution 731, that it
“strongly deplores the fact that the Libyan government has not yet
responded effectively to the above requests to cooperate fully” and
then “determined,” in 748, that Libya's “continued
failure to respond fully and effectively to the requests …
constitute[s] a threat to international peace and
security.”
The sanctions imposed by Resolution 748 prohibited air travel to or
from Libya and arms sales to Libya and asked other governments and IOs to
reduce the size of Libyan diplomatic delegations. Resolution 883 froze
some Libyan assets abroad and halted the transfer of oil technology with
Libya. Significantly, neither resolution included restrictions on the
purchase of Libyan petroleum itself or affected assets abroad concerned
with oil imports and exports. Despite the fact that the Libyan economy was
heavily dependent on oil revenue—crude petroleum accounted for 85
percent of Libya's dollar-value exports in 1991—the Security
Council did not interrupt this trade directly because of the significance
of Libyan oil exports to several major European countries, notably Italy,
Spain, Germany, and France.30
Trade date
from International Trade Statistics Yearbook 1995, United
Nations, 1996.
Italy acquired about one quarter of its oil
imports from Libya. (Several governments, including the United States and
UK, imposed unilateral, national-level oil embargoes against Libya as
early as the mid-1980s.)
31 Oil imports to
the United States were banned in 1982 and comprehensive U.S. sanctions
began with Executive Order 12543, 7 January 1986. Britain imposed
sanctions in April 1984, and the EU instituted a ban on arms transfers to
Libya in 1986.
With the absence of oil and oil revenue from the
UN sanctions regime, their effect was not as comprehensively devastating
to the Libyan economy as the post-1991 sanctions were to the Iraqi
economy. However, the sanctions did impose significant costs on the Libyan
government and population and had an enormous impact on the status and
prestige of the government in its dealings with IOs and other
governments.
32 Libya's claims of damage
are reported in UN Document S/26139, inter alia. Also see
Niblock 2001. For a journalistic report, see
Viorst 1999.
Removing the sanctions and
returning to a more normal relationship with the major Western economies
was the central goal of Libyan foreign policy for nearly a decade. James
Rubin, spokesperson at the U.S. Department of State, said in 1998,
“It is their only international diplomatic exercise, as far as I can
tell … to go around and seek assistance from other governments in
getting the sanctions lifted.”
33 Federal News Service, 21 July 1998.
The Sponsors' Arguments
Security Council sanctions under Chapter VII of the Charter are
legally binding on all member governments of the UN, but in practice
sanctions rely heavily on their legitimacy for effective implementation by
states. The Council cannot force governments to implement the policies
that would make sanctions effective, and so it must rely on the
self-motivated compliance of states. Often, the mere legal compulsion to
obey the Council is not enough to ensure that states comply and the
proponents of Council action go further in the giving of reasons for
compliance. The authors of Council action generally do more in an effort
to show that the Council's claim to be the collective spokesperson
for the international community is justified. The Council deploys a
variety of community resources to persuade the relevant audience of
third-party states that the sanctions are legitimate. As with all symbolic
resources, the legitimacy of sanctions must be carefully constructed by
the Security Council. This takes place in and around the Security Council
as the matter is debated and support is rallied.34
Here, the
symbolic resources of the Council are put to use by the proposers of the
sanctions to build perceptions of legitimacy in the new sanctions regime.
The Libyan sanctions regime was promoted by the United States, the UK, and
France, and built up over the course of two years.
Two periods of discussion are most relevant, one consisting of the
debates that end with Resolution 731 on 21 January 1992; the second, the
debates on Resolution 748, passed on 31 March 1992. Resolution 731
essentially called on Libya to “immediately provide a full and
effective response” to the earlier four demands made public by the
United States and the UK the previous autumn. There was no mention in the
resolution of further action should Libya fail to comply, and it did not
specify what Charter provisions it was relying on for its authority. It
did contain a statement that international terrorism
“constitute[s] a threat to international peace and
security,” which is important Charter language for justifying
Council involvement in an issue, but this reflected the inability of the
sponsors to negotiate a more direct reference to Chapter VII.
It was an important goal of the three sponsoring states (the United
States, the UK, and France) that the vote on Resolution 731 be unanimous
to strengthen the symbolism of the decision. They delayed introducing the
proposal to the Council from December 1991, when it was informally agreed
upon, to January 1992, to allow the two-year terms of Cuba and Yemen on
the Council to expire, thus removing two likely “no” votes.
The negative votes of nonpermanent members such as Cuba and Yemen of
course do not matter from a legal standpoint (unless they prevent the
necessary nine affirmative votes for a decision), but unanimity is a
powerful rhetorical tool in the effort to present the Council as embodying
the voice of the “international community.” Yemen, it is
interesting to note, did figure in the process in the end. Under the
procedural rules of the Council any UN member can ask to be heard in the
chamber and this request is almost automatically approved.35
See Bailey and Daws
1998, 154–59, for discussion of Article 32 of the Charter and
Rules of Procedure 37 and 39.
Yemen requested and was granted
time to speak as a nonmember of the Council during the debate on 731 and
made a statement that closely paralleled Libya's arguments against
the sanctions. Presumably this was something like the same statement it
would have made as a sitting nonpermanent member. The content of the
statement mattered less to the United States and the UK than did the fact
that Yemen's institutional status had changed, so that it could no
longer threaten the unanimity sought by the sponsors. The fact that the
vote was indeed unanimous became an important reference point in
subsequent discussions of the resolution. Immediately after the vote, the
U.S. Representative to the UN stated that unanimity showed that “the
voice of the international community is clear and determined.”
36 This was
repeated in some form in most prosanctions statements thereafter.
After weeks passed without the most visible of the demands in
Resolution 731 being met (those on turning over the two suspects), the
United States and the UK drafted a resolution calling for mandatory
limited economic sanctions against Libya, and invoked the legal force of
Chapter VII of the Charter. Most sanctions programs in the prior history
of the UN have not been explicitly founded on the authority of Chapter
VII.37
This draft provoked significantly more
controversy than did Resolution 731 and required that the sponsors (the
two drafting states plus France) lobby Council members and other states
more strenuously. This lobbying centered on three rhetorical themes: (1)
the threat to international peace and security posed by the potential
proliferation of terrorism, (2) the adherence to well-established
community standards on procedural justice, and (3) the need to promote and
enforce respect for legitimate IOs. These three strands of argument
established the themes of legitimation, which would subsequently be
referred back to by defenders of the sanctions to justify their
continuation.
The first theme of justification was important because a threat to
international peace and security rationalizes the Council as the
appropriate forum for dealing with the issue. Terrorism has not previously
been identified as within the Council's ambit. Article 24(1) of the
Charter states that “Members confer on the Security Council primary
responsibility for the maintenance of international peace and
security,” and while there is much discussion about the meaning of
the qualifier “primary,”38
For
instance, it is this qualification that was used to justify the Uniting
for Peace resolution of the General Assembly in 1950, which claimed an
implicit secondary obligation for the Assembly to act on matters of
international peace and security as a result of the Council's primary
responsibility.
it is generally understood to mean that the
Council is empowered to act whenever, but only when, a threat to
international peace and security can be found.
39 Of course, in the manner of institutionalized practices, the
repeated use of this justification by the sponsors of the resolution has
contributed to its own legitimacy and institutionalization, so that
subsequent discussion of the purview of the Council has been cast in these
terms. See, for instance, Reisman 1993.
The U.S. representative argued in the Council that terrorism constitutes
such as threat, and therefore it “fully justifies the adoption by
this Council of measures pursuant to Chapter VII of the UN
Charter.”
40 UN Document S/PV.3063.
This began the precedent, used most notably by the Council after 11
September 2001, that “international terrorism” is
automatically within the jurisdiction of the Council. For elaboration, see
Kirgis 2001.
Sir David Hannay for
Britain emphasized the global nature of the threat by noting that the two
airplane bombings killed citizens of more than thirty countries:
“The whole world has an interest in combating terrorism.”
Identifying a global threat to international peace and security was
intended to preempt the arguments by Libya and others that the dispute was
either a legal one (regarding extradition law, aviation treaty law, or
conflict of jurisdictions), or a bilateral one between Libya and each of
the sponsors. The British member made this explicit, suggesting that
Libya's recourse to the International Court of Justice (ICJ) was in
fact “directed at interfering with the exercise by the Security
Council of its rightful functions and prerogatives under the UN
Charter…. Any other view would undermine the primary responsibility
for the maintenance of international peace and security.”
41 The second area of justification of the sanctions centered on the
strict following of procedural justice in their formulation and
implementation. Thomas Pickering, the U.S. representative, made clear the
sponsors' contention that the sanctions met the relevant standards in
international law and norms (that they be proportionate, compassionate,
and a last resort): “The means chosen in this resolution are
appropriate; these sanctions are measured, precise and limited. They are a
multilateral, non-violent and peaceful response…. They are the
response prescribed in the Charter as the appropriate next step….
They are tailored to fit the offence”42
Ibid. On sanctions in international law, see Bowett 1972.
The British representative said
the “sanctions themselves are tailored precisely to [the]
objective,” and the French called them “balanced and
appropriate … selective and fitting.” In addition to being
“appropriate” the sponsors emphasized the humanitarian
exemptions in the sanctions, including provision for permitting flights
“on grounds of significant humanitarian need” if approved in
advance by a committee of the Council. This was intrepreted by the
sponsors to include flights for the hajj pilgrimage.
Finally, the sponsors promoted the justification that whatever the
substance of the original resolution, it had been duly passed by the
Council and had the force of law, and that Libya was therefore flouting
the collective will of the international community by ignoring it. This
justification provided a lever to move those states that may have had
doubts about the merits of the Council's case, but nevertheless
thought of themselves as on the side of international norms and law. The
Hungarian representative, for instance, said the escalation to sanctions
in Resolution 748 was needed to defend “the credibility and
authority of the UN … [and] to ensure compliance with its
own resolutions.”43
A state that is prepared to ignore the Council, as
Libya was held to be doing, was in itself taken to be a threat to the
international order, whatever the origins of the original dispute between
the Council and the state. The sponsors later spoke of Libya's
refusal to comply as “defiance of the will of the international
community.”
44 UN Document
A/48/314; also see UN Document S/26304.
The U.S.
representative brought in other international institutions, nodding at the
“efforts by the Secretary-General, the League of Arab States and
indeed many others to bring about Libya's compliance.”
45 These
references to respected international institutions reinforced the desired
image that the international community in all its institutional
manifestations was standing opposed to the government of Libya on this
issue. It was here that the unanimous vote on Resolution 731 was heavily
played by the sponsors of 748, because it strengthened the argument that
the dispute set Libya against the rest of the “international
community.”
Also revealing about these arguments was the concern with establishing
a reputation of resolve for the Council, or for its dominant members. The
U.S. representative repeatedly emphasized the “important
message” being sent by the Council in supporting sanctions: that the
Council “is prepared to take concerted political action against the
continuing defiance of international obligations,” and that it is
“prepared to back up its own words with action.”46
In language similar to the
Hungarian statement above, Ambassador Pickering went on to say,
“That message is the surest guarantee that the UN Security Council,
using its specific, unique powers under the Charter, will preserve the
rule of law and ensure the peaceful resolution of threats to international
peace and security, now and in the future.” The behavior of the
sponsoring states as sanctions continued through the 1990s was strongly
conditioned by their preconceptions about the importance of a reputation
for “resolve.” This is consistent with others'
observations that U.S. foreign-policy makers believe strongly in the value
of appearing resolute to outsiders.
47
There is little empirical evidence that this operates in the way that
leaders believe, yet it is a recurring theme in the rhetoric of American
politicians.
48Libya's Response
The sponsors' justifications for the sanctions centered on the
threat to international peace and security, the legitimize power of
procedural justice, and the dangers of rewarding disrespect for IOs.
Libya's response, in turn, was to challenge each of these themes on
its own terms by presenting an alternate image of the relation between the
sanctions regime and the international community, one in which Libya
appeared as the defender of liberal internationalism and the United States
and the UK were the “outliers.” It sought to undermine the
widespread belief that it was an “outlaw” by showing evidence
of a scrupulous adherence to international standards, and by showing the
sponsors' failings of those standards. In the end, the progress of
Libya's campaign and the stress it elicited in the sponsors created a
tension in the position of the sponsors. The United States and the UK
increasingly had to choose between divergent goals: defending the
legitimacy of the Council or maintaining enforcement of the sanctions.
Eventually, a growing disrespect for the sanctions among third-party
states threatened to delegitimize the Council as it continued to demand
respect for its resolutions.
The history of the external relations of Libya since the sanctions
were imposed shows a concerted effort to appeal to accepted international
practices and associate them with the Libyan government in the service of
delegitimizing the sanctions in the eyes of influential states and
organizations. The government attempted to reduce the appeal of sanctions
to other states by engaging in rhetoric that showed the Council's
position to be unrepresentative of the will of the international community
at large and unreflective of the community's professed values. Libya
did not attempt to say that the Council resolutions against it were
irrelevant or inconsequential, or that the Council itself was illegitimate
or should be ignored. Instead, it used the language of liberal
internationalism to provide a reinterpretation of each legitimizing claim
by the United States and the UK, seeking to undermine the inclination of
many states to accept by default the interpretation provided by these two
strong actors.
Libya's “campaign” can be divided thematically into
three more specific efforts, directed at precisely the justifications
given by the United States and the UK in trying to legitimize the
sanctions in early 1992. Libya's representatives contended, over the
course of several years, that (1) the sanctions regime violated norms of
procedural justice recognized in international law and in the domestic
legal systems of most states, including the United States and the UK; that
(2) supporting the sanctions constituted disrespect for accepted IOs and
the wishes of the international community, rather than respect for them;
and finally that (3) such disrespect was itself a threat to international
peace and security. None of these claims countered the basic empirical
theory of legitimation that was implicit in the U.S.-UK position, namely
that the legitimacy of rules comes from a consideration of both their
procedural correctness and their consequentialist impact. Indeed, the
Libyans seemed to agree with this model of legitimacy and use it to found
their claims. However, on each point the Libyan strategy used these
liberal internationalist norms to delegitimize the Council's
decisions and undermine their power. The repeated use of these arguments
and the manipulation of the procedural rules of international institutions
forced the United States and the UK to respond continually and in a
variety of settings to the contention that the sanctions violated the very
norms by which they were justified. Eventually, this created a situation
where the sanctions had to be sacrificed in the interest of preserving the
legitimacy of the Council itself.
Procedural Justice
The Libyan government made several arguments to undermine the
sponsors' claims that procedural justice contributed to the
legitimacy of the sanctions. Libyan statements referred repeatedly to the
fact that punishment in the form of sanctions was imposed before the
matter was fully investigated “through judicial channels,”49
UN Document A/48/PV.20, 5.
before the United States and the UK had presented “supporting
evidence or proof” to the Libyans, and even while the sponsors were
asking Libya (in Resolution 731) to disclose the documents and witnesses
in its possession.
50 In particular, the latter point implied that U.S.
and UK investigators had not yet been able to consider all relevant
documents. Placing punishment ahead of comprehensive judicial hearing,
they argued, violated the fundamental norms by which most domestic
judicial systems operate as well as accepted international judicial
practice. This was linked, in Libyan statements, with repeated references
to the humanitarian costs of the sanctions program, emphasizing the toll
that was being exacted before official judgment.
51 For instance, see UN Document A/48/PV.20. Also see UN
Documents S/26139; S/24428; and S/1994/921.
The central violation of procedure on which Libya relied was the
resolution's bypassing of the Montreal Convention on Civil
Aviation.52
Formally the Montreal Convention
on the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
23 September 1971.
This treaty, enacted in 1971 and ratified by
all the major players in the conflict, was intended to “arrive at a
generally acceptable method of dealing with alleged perpetrators of acts
of unlawful interference with aircraft.”
53 The
Convention holds that a state that finds itself in possession of an
individual who is alleged to have committed an offence of air terrorism
“shall, if it does not extradite him, be obliged, without exception
whatsoever … to submit the case to its competent authorities for
the purpose of prosecution.”
54 Montreal Convention, Article 7.
The choice on
extradition lies with the state holding the suspect, and in the absence of
an extradition treaty between a state holding a suspect and a state
wishing to try him or her, the former “may at its option consider
this Convention as the legal basis for extradition in respect of the
offences.” Further, “Extradition shall be subject to the other
conditions provided by the law of the requested State.”
55 Montreal Convention, Article 8(2).
If
there arises a dispute about the interpretation of the Convention, Article
14(1) states “Any dispute between two or more Contracting States
concerning the interpretation or application of this Convention …
shall … be submitted to arbitration.” If that fails, the
dispute may be referred to the ICJ.
Libya contended that it had fulfilled its obligations under the
Montreal Convention by investigating the suspects itself and thus that the
Lockerbie conflict constituted a dispute under the terms of the Montreal
Convention. It requested international arbitration and then ICJ
involvement to certify its cooperation. The constant effort to cast the
dispute in legal terms was in an effort to demonstrate to states
considering complying with the sanctions that being
“law-abiding” in the international context did not necessarily
mean automatically following the Security Council, even in the face of
Articles 24 and 25. Because the question was debatable on the law, Libya
said, a legal forum should be used until it is resolved. This separated
cleanly the responsibilities of the Council and the ICJ. Libya said in
1992, “If there is a conflict of jurisdiction, it is of a legal
nature and international law and the relevant international conventions
set out the concrete ways and means to solve it…. There can be no
doubt that this is a purely legal question. Neither can there be any doubt
that therefore the Security Council is a forum that is not competent to
consider the question.”56
Libya at the
Security Council before the vote on Resolution 741, UN Document
S/PV.3033.
The United States and UK, on the other hand, sought to prevent the
issue from taking on the rhetoric of a legal dispute. Protracted debate on
legality and illegality would take the matter away from the Council, where
the sponsors' were relatively strong, and give it to institutions
that were less “predictable” from their point of view.
However, it is significant that the sponsors' were not free to simply
ignore these Libyan appeals to international law: each challenge had to be
met on its own terms and rebutted, since it was based on a rereading of
the very norms and standards on which the United States and the UK were
relying to justify the sanctions. Thus the United States and the UK
participated in the ICJ cases, accepting the risk of adverse judgments,
because to ignore them would contradict the rhetoric of procedural justice
they sought to promote.57
The UK and United
States lost the argument at the ICJ that the Court had no jurisdiction. In
1998 the Court agreed with the Libyan argument that a
“dispute” existed under the Montreal Convention and it was
hearing the substantive arguments when, in 2003, the two sides jointly
asked that the case be dismissed. Given the settlement of the Council
sanctions by then, the ICJ agreed and removed the case from its docket in
September 2003.
Indeed, more generally, the United States has a
poor record of winning cases at the ICJ and yet continues to represent
itself there vigorously.
58 This practice should be
recognized as an effort by the United States to demonstrate its respect
for the rule of law in international politics, as well as being part of a
response to the particular claims made in specific cases.
Respect for International Organizations
Libya made several efforts to show that its position was supported by,
and in support of, various respected IOs to create the impression that it
was the United States and the UK that were out of step with the
international community. Libya, they argued, was part of and supported by
the “mainstream” of international opinion. This effort took
several forms.
Libya played up its participation as a good international citizen in
the effort to limit international terrorism. At each opportunity, it
publicized its condemnation of international terrorism, its steps to
combat it, and its sympathy for its victims. In the debate on Resolution
731, Libya asserted that it condemned terrorism in all its forms and
pledged its commitment to stamping it out from the world.59
Each year
it marked the “painful anniversary of the destruction of Pan Am
103” with memorials, even going so far as to write individually to
the families of those who died at Lockerbie to explain its position.
60 In a
1999 speech, Qaddafi repeated this refrain: “We … feel the
same [sympathy] for the families of all the victims of the
aircraft. What I want to say here is that the [families of the]
Lockerbie victims have not shown malevolence toward Libya. On the
contrary, they have always supported us and have thanked us for our
positive attitude and stances.”
61 Speech on Libyan television in Arabic, 2 March 1999.
Reprinted by BBC Summary of World Broadcasts, 4 March
1999.
Qaddafi also regularly called for international conferences
or special sessions of the UN General Assembly to “study the causes
and dimensions of the [terrorism] problem.”
62 UN Document A/48/PV.20, 5.
To
verify Libya's distance from terrorist groups, he invited the UN
secretary-general to send missions to Libya to confirm that it was not
supporting activities linked to terrorism.
63 Privately, Libya
began providing the UK in 1992 with details of its aid to the Irish
Republican Army (IRA).
64 Second, Libya publicized its willingness to engage with a range of
IOs, as representatives of the international community, to help resolve
the particular conflict at the center of the resolutions. Libya requested
international arbitration as mandated under the Montreal Convention on
Civil Aviation to mediate legal points between it and the United States
and UK. On the question of the two suspects, Libya offered to produce the
suspects to the UN Development Program office in Tripoli, or to the
secretary general, or to the ICJ. In its willingness to cooperate with
institutions other than the Security Council, Libya hoped to convince its
audience of third-party states that it was not being recalcitrant with
respect to the international community, as was claimed by the United
States and the UK, but rather had a bilateral dispute with these two
states, one which should be resolved through legal channels or
arbitration. Its position was that its dispute was with the United States
and UK and not with the Security Council or the community of states more
generally.
Third, Libya also publicized evidence that the sanctions were being
disrespected by reputable actors. Every time a state or organization
violated the sanctions or publicly questioned their justification, Libya
broadcast the information to as wide an audience as possible as a means of
showing the Security Council to be out of step with the community. By 1998
Qaddafi's speeches on Libyan television and radio, and his
diplomats' speeches at the UN and elsewhere, routinely included long
lists of thank-yous and acknowledgments to the Organization for African
Unity, the Arab League, the Gulf Cooperation Council, and individual
states and leaders for their questioning of the sanctions regime.65
See, for instance, Qaddafi's speech of 2
March 1999 reprinted by BBC Summary of World Broadcasts, 4 March
1999. Also see BBC Report, 11 June 1998; BBC Report, 6 August 1998; and
The Guardian, 11 September 1998, 16. For speeches at the UN, see
UN Document A/48/PV.20.
The rhetorical power of
violations and criticism was so potent that Libya, on occasion, reported
violations that were not in fact violations. For example, Libya called the
visit of President Hosni Mubarak to Qaddafi in July 1998 a
violation—in fact, the trip was approved in advance by the Security
Council (although under the pressure of knowing it would probably take
place anyway).
66 The Guardian, 10
July 1998, 16.
This power was understood on the sponsors'
side and the U.S. government chose at times to ignore some violations for
fear of increasing Libyan support by pressing the matter at the Sanctions
Committee of the Security Council.
67 One
such instance was reported by the Washington Post with respect to
Libya's sending pilgrim to the hajj to Saudi Arabia without first
earning permission from the Committee. Washington Post, 21 April
1995, A30.
At the same time, Libya sought to conceal other kinds
of violations, such as an active smuggling program via cooperative foreign
companies. Although no doubt useful materially, this activity did not
serve the rhetorical goals that disrespect of sanctions by other parties
did, and indeed worked against them. Thus violations by Libya were
concealed, while violations by others were publicized.
Finally, Libya took careful advantage of the openings available to it
under the procedures of the Security Council and other IOs. The
Council's operating rules on sanctions call for a review every four
months by a Council committee of the whole. This provided Libya with a
regular platform for making its case within the Council. It never failed
to do so, and it carefully submitted reports to the Council in advance of
each meeting detailing each of the three factors mentioned above: the
absence of procedural justice, the damage done by the sanctions, and
critical statements by “respected” voices (states, noted
individuals, and IOs).68
These and other
Libyan communications to the Security Council and the UN secretary-general
are documented in the annual Yearbook of the United
Nations.
In addition to the cases filed with the ICJ, Libya
continued the legal theme with petitions for the arrest of U.S. political
and military officials over the 1986 bombing of Tripoli and Benghazi.
Mirroring the domestic U.S. grand jury procedure that began the pressure
to extradite the two Libyan suspects,
69 The
original indictment was issued by the District Court for the District of
Columbia, 14 November 1991.
Libyan prosecutor Mohammed
Abdel-Wahab issued arrest orders in 1998 for the former director of the
U.S. Central Intelligence agency (CIA) William Casey, U.S. National
Security Advisor John Poindexter, and seven others. He also suggested
that, if all else failed, Libya would “resort to the Security
Council to get the accused.”
70 Boston Globe, 31 December 1998, A4.
As I show below, the sincerity of these statements is beside the
point. What matters is that they were well-targeted and the United States
and the UK felt compelled to respond to them with principled defenses of
the sanctions regime.
International Peace and Security
The language of threats to “international peace and
security” is important in international law because it is the
enabling phrase that the UN Charter uses to define the powers of the
Security Council. It is generally included in Security Council resolutions
to justify coercive measures. As such, it was vital to U.S. and UK
justifications for sanctions against Libya: “Libya's
involvement in these acts of terrorism indicates a serious breach of
international peace and security” said Pickering.71
U.S. Ambassador Pickering to the Security Council, UN
Document S/PV.3063.
However, the language is equally
available to other actors than the great powers, and in these other hands
it can be used to achieve different ends. This is a central fact of the
public quality of symbols and institutions: they cannot be entirely
monopolized by the strong without threatening the legitimacy on which they
are based. Libya's speeches in the Council and elsewhere supported
the Council's authority to take action against “threats to
international peace and security” and so supported the Council as an
institution. It also defined such threats in traditional terms as any
coercive action that did not have the support of the international
community.
72 See, for instance, Libya's
statements before the vote on Resolution 731 in UN Document S/PV.3033,
and on Resolution 748 in UN Document S/PV.3063.
However,
Libya then turned the tables on the United States and the UK by taking the
two sets of evidence just described (the alleged lack of procedural
justice and of community support) to represent the sanctions themselves as
the threat to international peace and security, on the grounds that the
resolutions were not widely and actively supported by the community. To
the extent that this argument was persuasive to third parties, Libya could
contend that the threat that the Council should be concerned with came
from the sponsors of the sanctions resolutions and not from Libya
itself.
Compliance, Defection, and the 1998
Compromise
The sanctions on Libya were at first relatively well respected, even
among states that one might expect not to support them, including Egypt,
Iran, and several north African states. I list several reasons for this.
The first is that the sanctions regime was itself largely symbolic. It did
not include controls on Libya's oil exports, which would be the
logical target if the international community wanted to seriously impinge
on Qaddafi's interests. The ban on air travel and the limits on
diplomatic representation were no doubt an inconvenience, but it was their
symbolic effect in casting the Libyan government as an
“outlaw” that the sanctioners were aiming for. By contrast,
the controls on Libya's overseas financial instruments did hit at
resources of real consequence, but these controls took effect after Libya
had had time to rearrange its finances so as to minimize the damage.73
Rose 1998. Also see
The Observer, 27 February 1994, 22.
Second, the
sanctions were respected in part because the sponsors were willing to use
(or threaten to use) their leverage against third-party states to gain
their acquiescence. Finally, the sanctions earned some respect from the
fact that they were duly promulgated by the Security Council, and that
this procedural legitimacy is in itself an argument in favor of
compliance. In all, international respect for the sanctions was judged to
be relatively good in the early years.
74 Rose 1998. Bray calls the earlier
unilateral American sanctions “relatively ineffective” and
says the multilateral UN sanctions “more likely to be
effective.” Bray 1996.
Libya's international trade was disrupted: even without oil in the
sanctions regime, Libya's total exports fell in the years immediately
after the sanctions, by 11 percent in 1992 and 24 percent in 1993.
75 International Monetary Fund, Direction of
Trade Statistics, 1997.
Libya also ended up selling or
drastically restructuring its foreign assets and firms.
76 In addition, it
became difficult to pursue the normal processes of diplomacy, and Libya
came to rely on an informal network of middlemen, agents, foreign lawyers,
and even some unknowing others to communicate with other governments.
77 Washington Post, 2 October 1993,
A12.
This intermediating collection of advisors and opportunists
was blamed by the secretary general of the UN for making resolution of the
conflict more, rather than less, difficult.
78
Despite periodic U.S. and UK complaints that some states were not abiding
by the sanctions, for the first several years they were in fact well
respected.
79 U.S. and UK complaints are
documented in a 1996 report, S/1996/606, including that Libyan
Airlines offices remained open in several cities and that Libyan
diplomatic representation had in some locations increased since
1992.
Qaddafi's many proposals for “compromise” in various
forms were rejected by the sponsors, who insisted on what they considered
to be the essentials of the original demands: that the suspects appear
before a UK or U.S. court. The consistency displayed by the sponsors was
in part motivated by a concern for the reputation of the Council and its
backers. The United States and the UK were heavily invested in the
rhetoric laid out to legitimize the sanctions and were extremely reluctant
to give recognition to any Libyan overtures for compromise. Accepting any
compromise was feared to provide “face-saving for Qaddafi” and
to show the sponsors to be irresolute.80
International Herald Tribune, 22 July 1998,
1.
The situation began to change in small increments as the violations by
third-party states started to accumulate. From Libya's early probing
of the limits of the sanctions in 1995 by sending planes to Mecca for the
hajj,81
See New York Times, 6 April
1995, A3; and Washington Post, 20 April 1995, A34.
and
the occasional flights from Tripoli to Egypt in 1996,
82 New York Times, 6 July 1996, 4.
isolated
violations of the flight ban started to show an underlying discontent with
the sanctions among many states, particularly in Africa. These violations
increased in frequency throughout 1996 and 1997, although they never
became anything more than isolated. In May 1997 the U.S. State Department
accused Niger and Nigeria of conducting unauthorized flights to
Tripoli.
83 U.S. Department of State, Press
Statement, 13 May 1997. Available at
〈secretary.state.gov/www/briefings/statements/970513a.html〉.
Accessed 10 March 2005.
The pace of violations accelerated in
1998. Two Italian planes reportedly arrived in April 1998, marking the
first European violation.
84 Washington
Post, 25 April 1998, A12.
Then in June 1998 the Organization
of African Unity passed a resolution approving that its members could
ignore the flight ban as of that September.
85 This was communicated to the Security Council in UN Documents
S/1998/549 and S/1998/597.
This institutional
declaration spurred an increase in flights-violations. Sudan, Chad, Niger,
Mali, and the Central African Republic each flew into Tripoli in
September, to celebrate the anniversary of the Libyan revolution, and the
Gambia sent a flight a few days later.
86 The Guardian, 11 September 1998. Gambia's
flight was reported to be a form of a thank-you for Libya having paid that
country's back-dues to the UN. There was also a report that Libya
paid Malawi's back-dues in 1999, for which Malawi expressed support
for Libya in the face of “U.S.-British intransigence.” BBS
Summary of World Broadcasts, 6 February, 1999.
President
Mubarak of Egypt visited in July—he secured UN approval before his
trip, and so it was not a violation, but in the context of the other
violations it was read as a signal of Egypt's impatience with the
ban.
87 The Guardian, 21 July 1998,
1.
These violations of the flight ban did not contribute a real material
benefit to the government of Libya—there was no evidence that the
flights were carrying significant cargoes of prohibited industrial or
military goods. So, although the violations were real in the sense that
they contravened the literal prohibitions in the resolutions, there were
for the most part symbolic in that they simply communicated the
states' dissatisfaction with the sanctions. Of course, symbolic
status can turn into material benefit—which is precisely what
happened. The significance of the decaying flight ban is that it put
pressure on the sponsors of the sanctions to somehow reconcile the
position of the Council with the “facts on the ground.” This
pressure came from below, from the “rank-and-file” of the UN,
whose cooperation is essential for making sanctions regimes work.
The growing gap between the declared position of the Security Council
and the actions of many states became a threat to the perceived legitimacy
of the Council. There was a disconnect between the authoritative words of
the Council and the behavior of its audience. The Council could not force
states to participate in the sanctions regime and was increasingly seen as
holding a position that was out of touch with the prevailing currents of
the international community. This is a dangerous position for an
institution to occupy, and in the case of the Council it threatened to
reveal the Council as a surrogate for the United States and the UK. If
this happened, it would undermine the Council's carefully constructed
corporate identity and potentially undermine its power in other
situations. This point was well made by the Canadian ambassador to the UN
who said, in 1998, that for the Council to exercise
“leadership” it needs a “followership,” and that
in the case of the Libyan sanctions, this was increasingly lacking.88
Remarks to the Security Council, cited in
International Documents Review, Vol. 9, No. 37, 26 October 1998,
1.
The ambassador made clear that it would be dangerous for the
“credibility” of the Council if it insisted on maintaining the
sanctions after the point at which large sections of the UN membership had
ceased supporting them. Similarly, the secretary general of the UN said
that he realized early in his tenure that Libya's strategy was
gradually winning international support: “I realized that if we
didn't find a way forward [the sanctions would lose all
legitimacy]. [By] rejecting every Libyan proposal [the
United States and UK] had boxed themselves into a situation of being
the stubborn negative ones.”
89 Kofi
Annan, cited in New York Times, 7 April 1999, A8.
The “way forward” was an agreement reached in 1998 under
which the suspects would be tried in a third country, where Scottish law
would be applied. The final version of the compromise specified that
Scottish law would be applied at a court in a disused U.S. military base
in the Netherlands, Camp Zeist, which for the purposes of the trial would
be transformed into Scottish territory.90
Details on the legal and security arrangements can be found
at http://www.law.gla.ac.uk/lockerbie/index.cfm. Some
colorful details on the transformation are provided in New York
Times, 1 August 2000, A4.
The suspects were transferred in
the custody of the UN, and protected by the UN while in the Netherlands.
The trial was presided over by three Scottish judges and no jury,
according to Scottish procedures, and with any prison time being served in
Scotland.
91 The compromise rescued the sponsors from the worst of their dilemma:
trying to defend the Security Council's legitimacy while the
sanctions were being systematically violated. It also rescued Libya from
the sanctions: they were suspended in April 1999 and removed by Resolution
1506 in 2003. However, it is interesting that the basic formula that was
adopted in the compromise was first proposed by Qaddafi as early as 1994.
At that time, on the sixth anniversary of the Lockerbie explosion, Libya
took out full-page ads in several leading newspapers to propose that a
Scottish court conduct a trial of the two at the ICJ in the Hague.92
Washington Post, 22 December 1994,
A28. The ad ran in the Post on 21 December 1994.
The
Arab League began championing the idea from May 1996 after its
Secretary-General Esmat Abdel-Meguid visited Libya.
93 The Herald (Glasgow), 22 May 1996, 12.
Other variants were put forward even earlier, including having Scottish
prosecutors before the ICJ or at an ad hoc international tribunal.
94 For the “Black Plan,” of a
Scottish prosecutor before the ICJ, see The Independent (London),
24 January 1994, 10. Also see Christian Science Monitor, 9
November 1994, 1.
At the time of its first airing, the United States and the UK called
this proposal a “nonstarter” and said “We will not be
satisfied with half measures [and] we reject offers to negotiate
the extent of its compliance with UN Security Council
resolutions.”95
First quote is
unattributed in Christian Science Monitor, 9 November 1994, 1.
The second quote is by Michael McCurry, State Department spokesperson, in
the Washington Post, 22 December 1994, A28.
A senior
U.S. State Department official said “There can be no compromise on
the need for trying the suspects in a Scottish court under Scottish law.
We are absolutely opposed to any alternative trial venue.”
96 Unidentified official, Christian Science
Monitor, 9 November 1994, 1.
Their position began to change
as the rate of defections from the sanctions rose. By 1998 the cohesion of
the prosanctions coalition was coming apart, leaving the Council
vulnerable to seeming irrelevant.
The change in the sponsors' position came about because of the
decrease in respect for the sanctions by third-parties. By the time the
tenth anniversary of the bombing was approaching, the United States and
the UK were apprehensive, on the one hand, of having their hard-line
strategy appear to the public to be a failure and, on the other, of having
large numbers of states and organizations defect from the regime. The UK
was the more willing partner, and it brought a somewhat reluctant United
States along. As a result, the two countries began calling the
Scottish-law/Dutch-venue compromise their own and challenged Qaddafi
to meet it. Once the United States and the UK switched sides and began
supporting the compromise, they began also to cite its international
support as contributing to its (and to their) legitimacy. In the letter to
the UN secretary general in which they announced their support for the
measure, the Permanent Representatives of the United States and the UK
stated, “This initiative represents a sincere attempt by the
Governments of the United Kingdom and the United States to resolve this
issue, and is an approach which has recently been endorsed by others,
including the Organization of African Unity, the League of Arab States,
and Movement of Non-Aligned States and the Organization of the Islamic
Conference.”97
Letter dated 24 August
1998 from the Acting Permanent Representatives of the UK and the U.S. to
the United Nations Addressed to the Secretary-General, UN Document
S/1998/795. See also Madeleine Albright's statement of the
same day, cited in Murphy 1999,
174–79.
This exactly mirrors the earlier efforts of Libya
to legitimize their position by reference to its community support.
The end result was not a clear victory for either side. It required
both sides to move from their initial positions and to accept provisions
that they once said they would not. In that, it was a classic compromise.
Thus it cannot be said that Libya's strategy was entirely successful.
However, it did provide to third parties an alternative interpretation of
liberal internationalism and give a principled defense for ignoring the
sanctions. The transition from “resoluteness” to
“compromise” on the part of the sponsors shows the
uncomfortable position they found themselves in as the defenders of the
legitimacy of the Security Council. The first preference of the sponsors
of Resolution 731 would probably have been to continue the sanctions until
the demands of resolution were fully met (as evidenced by their earlier
rejection of the same compromise). However, holding this position when
many smaller states showed signs of abandoning the sanctions coalition
would impose a cost on the legitimacy of the Council. By 1998 the sponsors
were not willing to expose the Council to this danger.
The foregoing case suggests that there are two steps in the causal
chain that links Libya's strategy of delegitimation to the ultimate
compromise that ended the sanctions. First, Libya's use of liberal
internationalist rhetoric emboldened states sympathetic to it and
encouraged them to violate the sanctions. Second, these violations induced
the United States and the UK to accept a more limited solution than they
originally demanded, to avoid the Council defending a program that existed
on paper only. Both steps are crucial to understanding the eventual
outcome.
Evidence for the first step comes from observing both the pattern of
which states defected and which did not and the manner in which the
defectors went about defecting. Defecting states were those with little
direct investment in liberal internationalist norms, namely nondemocratic
African states, mostly small and with internal reasons to prefer to stand
with Libya than with the United States and UK. Had Libya's claims
been addressed directly at the liberal states in the international system,
one might test the effect of those claims by examining for changes in the
behavior of those states. But Libya did not address its claims that way.
Defections happened among states that appeared to be originally only
weakly attached to the sanctions so that a small change in the structure
of incentives that they faced could be enough to tip the strategic
calculus in favor of defection. Having a legal justification for defection
reduced the political costs enough to change the balance for those
governments. The same change in the incentives faced by solidly liberal
states did not cause an immediate chance in policy, because those
incentives were further from the margin in the first place. Only when many
illiberal states changed their positions did that pressure on liberal
states accumulated.
The manner in which violations were performed also supports the
interpretation that Libya's strategy affected these states'
behavior. The eagerness of the violators to publicize their actions
suggests that they did not believe they were breaking important laws or
norms; quite the opposite, it shows that they believed that if pressed
they could justify their actions as legitimate under prevailing
international norms. Libya's efforts helped to provide them with that
justification.
The second step in the causal chain connects these violations with the
change in policy of the United States and UK. Evidence that the change
came about because of concern with rising rates of defection is readily
available in the contemporary accounts.98
For instance, see New York Times, 1 November 1998,
8; and New York Times, 25 July 1998, B5.
As Niblock
reports, by 1997 “the sanctions were becoming unsustainable. With
African, and possibly Arab, governments intent on flouting the sanctions
… the sanctions regime might simply fall apart.”
99 U.S. and UK decision makers were concerned that the rate of
defection would continue to increase. Two moments in 1998 help to explain
the particular timing of the policy change: the Italian violations in
April and the anniversary in December. Both moments were interpreted as
giving added legitimacy to Libya's claims and so further undermining
the sanctions coalition. Italy's decision was important because it
signaled the leading edge of European impatience, and the anniversary was
important because it was expected to bring new calls from victim's
families for more “flexibility” in the U.S.-UK position.
100 The compromise
was settled in fall 1998, before the anniversary.
To be clear on the limits of my claims, I want to consider two
competing interpretations of the driving force behind the compromise. Both
alternate explanations take issue with the argument that I have presented
although at different levels: one disputes the role of liberal
internationalist norms, and the other disputes the very premise that there
was a compromise at all.
First, on the existence of a compromise itself: Comparing the 1998
outcome to the original demands of 1991, the United States and the UK got
most of what they wanted—trial of the two suspects in court,
compensation for the victims' families, and a change in Libya's
international behavior. This leads some to conclude simply that the United
States and the UK won and that the sanctions were a success. If this is
the case, then Libya's strategic use of Council norms was at best a
losing effort and certainly not worth much attention. My argument
disagrees with this interpretation on the grounds that Libya won several
things of strategic value by virtue of its strategy. First, Libya
forestalled turning over the suspects for several years, and this time is
in itself valuable. Second, Libya bargained for and won written assurance
that the judicial investigation would not go beyond the two suspects and
so would not endanger superiors in the regime. Third, Libya won enhanced
social prestige among important international groups. This prestige came
in two forms: for many states in Africa, Libya earned status for resisting
Western pressure for so long, while for many liberal states Libya
increased its respectability by agreeing to and carrying out a solution
apparently based on international law and IOs. The ultimate result was
much friendlier to Libyan interests than would have been handing over the
suspects in 1992, even though the damage from the sanctions was not
negligible. In other words, it was a compromise; both sides could claim a
limited victory.
The second interpretations concerns norms. One could accept that the
outcome was a compromise but still disagree with the causal story about
its genesis that I present. A strictly materialist version of events would
suggest that Libya's reference to liberal internationalism made no
difference to the outcome, and that the outcome would have been
essentially the same in the absence of the use of symbols around the
Council. This argument instead centers on a hypothesis about the increase
in the costs to the United States and the UK of maintaining the sanctions
over time and is generalized in arguments about “sanctions
fatigue.” Haass, among others, has argued that sanctions regimes
have a natural tendency to erode over time and that the costs of
maintaining an enforcing coalition rise.101
This gives
rise to a kind of natural life cycle for sanctions regimes that is also
observable in this case: initial high compliance gradually declines and
ultimately leads to a moment of crisis as the prosanctions states must
reassess their commitment to the regime. Although the mechanisms by which
this is believed to work are not well spelled out, one suggestion is that
over time policymaker attention and public emotion wane, leaving would-be
violators of the sanctions increasingly free to ignore the rules.
The evidence in this article partly supports this conclusion: rising
costs to maintaining the sanctions regime were indeed decisive in pushing
the prosanctions states toward a compromise. But the nature of and change
in these costs cannot be explained except with reference to the
manipulations of liberal norms by Libya. By providing its allies with a
set of arguments that liberal internationalism was on the side of
violating the sanctions, Libya gave them tools by which to shift the onus
back on the prosanctions states. The prosanctions states, to whom the
self-identity of being liberal internationalists was most important, were
thus made responsible for responding to the reinterpretation of the norms.
It is this response that grew costly and ultimately was not worth the
investment. In the absence of Libya's use of norms, it would have
been more costly for countries in Africa to violate the sanctions; some
countries might still have done so, but at a greater cost to their
reputations with the West. In the end, it is correct that the changes in
the costs of maintaining the sanctions regime were crucial to the shift in
policy of the United States and UK, but those costs were themselves driven
by Libya's strategic manipulation of liberal internationalism.
It is not crucial to my argument that Libya's statements and
promises regarding its commitment to international law or order be
sincere. In fact, their sincerity is beside the point. What matters is how
the audience reacts to the claims. Important states in the prosanctions
coalition responded positively to Libya's frequent and public claims
about liberal norms that the act of making them appears to have forced the
United States and the UK to alter their behavior—first by defending
the sanctions against new challenges and second by accepting a compromise
solution. This is all the more interesting if the statements were indeed
insincere, because then one sees the power of “mere rhetoric”
to move governments. Libya was not a liberal state at the start of this
episode, nor were those who began the sanctions violations liberal states
in their domestic affairs. But in liberal symbols and institutions Libya
found a powerful justificatory discourse that was significant to the
self-identity of many powerful states in the system. This created internal
ambiguity in these liberal states that could not be ignored by them.
Conclusions
The Libyan episode at the Council is instructive both for those
interested in foreign-policy making and those interested in theory.
Regarding policymaking, the interpretation presented here of Libya's
motives helps to understand Libya's behavior in recent years since
the sanctions were removed. Attempting to normalize its relations with the
West was a preeminent motive in Libyan foreign policy through the
sanctions years and has continued since then. This has resulted in several
noteworthy recent developments, including its support for the American
“war on terror” in response to the 2001 terrorist attacks on
the United States, its new willingness to publicize and end its weapons of
mass destruction (WMD) programs, and its courting of international
capital. While the Bush administration has attributed Qaddafi's shift
on WMD to the implicit example carried in the U.S. invasion of Iraq, a
more realistic interpretation is that Qaddafi has used the new U.S.
interest in WMD to his advantage by trading away his now symbolically
valuable weapons programs in exchange for favors from the United States
and Britain. There is good evidence that Libya was not serious about
maintaining its WMD arsenal and had begun to find it a burden;102
See sources in “How Gadaffi Was
Brought Back into the Fold,” Financial Times, 27 January
2004, 17. Also see “Why Gaddafi Gave Up WMD,” BBC
News, 21 December 2003; and “The Iraq War Did Not Force
Gadaffi's Hand,” Financial Times, 8 March 2004,
21.
it had sought several times in 1999 and 2000 to bargain with
the West over its weapons, but it did not find a receptive audience in
Europe until 2002. The profile given to WMD in the U.S. case for war
against Iraq made Libya's programs, well known to Western
intelligence, much more valuable a bargaining chip for Libya. One can now
see, in the form of new diplomatic status, the payoff to Libya from this
exchange.
103 See “Blair Visits Libyan
Leader,” New York Times, 25 March 2004, 3; and
“Washington Lifts Libya Travel Ban,” BBC News, 26
February 2004.
The fight at the Council over the Libyan sanctions illustrates three
more general principles regarding the nature of power in the international
system. First, it shows how central the concept of legitimacy is in IR.
The strategies of both sides in the Libyan case, as well as the more basic
goals that these strategies served, were essentially defined by
legitimation and delegitimation. The United States and the UK brought the
matter to the Council in the first place to seek what Claude called the
“collective legitimation” of the UN for their policies, and
the Libyan counterattack sought to disengage the policy from the
legitimation. Unless one understands the power that states gain by having
their policies legitimated by collective institutions, one cannot
understand the strategic behavior of either side in this case.
Second, the central concern with legitimation among states gives rise
to a moral economy of symbolic politics that structures the terms of
political competition. Symbolic power can be extremely useful to states,
and motivates such behavior as the American effort to win Council approval
for the 2003 war on Iraq. The Libyan case illustrates how symbols can be
powerful tools for states in international controversies, with each side
making use of the symbols of liberal internationalism in an effort to win
supporters to their cause. The pursuit of legitimation and delegitimation
is conducted by either deploying or reinterpreting the symbols of
legitimated institutions. Even for actors who do not themselves believe in
the legitimation of the institution, there may be power to be gained by
using its symbols—to the extent that others do believe in it, these
will be effective instruments. This suggests a possible irony in that
those individuals who hold a genuine commitment to a symbol might be in a
position of relative weakness next to others who do not but who are
willing to manipulate it strategically. There is greater freedom of action
for the manipulator than for the true believer (although one should
remember that one does not choose which of these categories to belong
to).
Either way, a social order that is founded on the use of legitimated
institutions is vulnerable to disruption from below when competing
interpretations are promoted and begin to be adopted by the audience. Once
the dominant powers have come to rely in part on a legitimated institution
to provide order in the international system, they have set a difficult
task for themselves: their influence thereafter relies on a perpetual
effort to police and maintain the legitimacy of the institution. This
often requires action and statements they would rather have avoided. Once
hitched to the rhetoric of due process and community support, the sponsors
could not ignore Libya's statements and actions that appealed to
these same principles but interpreted them differently. As Scott says,
“Any ruling group, in the course of justifying the principles of
social inequality on which it bases its claims to power, makes itself
vulnerable to a particular line of criticism…. Every publicly given
justification for inequality thus marks out a kind of symbolic Achilles
heel where the elite is especially vulnerable.”104
This situation creates opportunities for others to challenge the status
quo.
Finally, the Libyan episode shows that the distribution of material
power among states is not necessarily a good guide for predicting the
distribution of power in the symbolic economy of the system. The
vulnerabilities inherent in rule based on legitimation mean that actors
with little material power may have leverage in the symbolic field against
those with great material capabilities.105
As a result, one may use the system's
institutional channels for opposition. This puts the onus on those working
within the system to respond thoroughly to each challenge. Failure to
respond, or a response without due regard for the sensitivities of the
audience, throws the charge of acting illegitimately back on those who
have the strongest attachment to the rules in the first place, which can
only help the opponent's cause. Evidence of this can be seen in the
Libyan case. The repeated legitimations involved in justifying the Council
since its founding, and in the defense of the sanctions themselves, have
resulted in the strong states being committed to a set of rhetorical
claims about procedural justice and due process that then become available
for others to use against them. The symbols that activate the authority of
institutions are available to all participants and their limits must be
respected even by the strong. When the strong cross those limits, the
power of the institution is threatened. It is for this reason that to call
the Council “a kingdom of words,” as did a former Lebanese
ambassador to the UN, is not to denigrate it or suggest its inferiority to
other, presumed, “kingdoms of action.” The ambassador used
that phrase as a term of respect for the Council, in recognition of the
fact that at bottom political conflicts are fights over symbols and
legitimation, and that the Council is a key location for their use.
106 Jean Krasno's interview with Ghassan
Tueni for the Yale-UN Oral History Project, 1998. Transcript on deposit
with Sterling Memorial Library, Yale University, New Haven, Conn. Claude
made a similar point in Claude 1967,
88–90.
