Written by Solon Solomon, former Member of the Knesset Legal Department, in charge of international and constitutional issues
Back then, in the early days of President Obama in office, U.S. foreign policy seemed to enter a new era. Withdrawal from Iraq, closure of Guantanamo, in other words, recoil from all the “sins” that seemed to stigmatize the Bush administration. Yet, Guantanamo did not close, the Iraq withdrawal has not been total and American presence still exists in Afghanistan. Like the end of history that Francis Fukuyama hailed to predict, yet never came to be, so seems to be the case with U.S. unilateralism in foreign policy.
On the contrary, the Obama administration got entangled in a military operation in Libya on a unilateral base, without congressional approval. True, that unilateralism was an agreed one, stemming from a U.N. Security Council Resolution, whose binding character all U.N. members accept. Still- even agreed- it remains the unilateral imposition of the will of the Security Council’s majority.
If this is so, it brings us back to the 9/11 world reaction, when the world powers appeared determined to pronounce the right to self-defense, not against a particular enemy, but against a particular phenomenon, namely the terrorist attacks. Also then, through an agreed mode-a U.N. Security Council Resolution-the U.S. in particular launched unilaterally what came to be known as a “war on terror.”
This agreed unilateralism served the interests of U.S. foreign policy for almost a decade. Yet, recent events, such as the Arab spring, depicted also its limits. Because, if agreed unilateralism is let to expand in an unrestrictive way, where is the room for bilateralism? What is the point of international agreements and coordination, in the final line, what is the point of international law itself?
Agreed unilateralism -no matter how agreed it maybe- still remains unilateralism. And as such, it does not always work. In the case of Libya, it did not bring to Qaddafi’s fall and the arrest warrant against him, issued by the International Criminal Court, was not executed. Not surprisingly, the international community opted for a more bilateral approach in the case of Syria, based on exerting pressure to Assad to resign, rather than military measures against the country.
Also on a regional level, agreed unilateralism ultimately met its limits. The Egyptian demand for an increase of the Egyptian military presence in demilitarized Sinai was answered positively by Israel’s government on an exceptional basis, yet on blurry-if not non existent- legal grounds. Ultimately, this agreed unilateralism was thwarted by the Knesset Speaker’s request for an advisory opinion on whether the Israeli Parliament should also approve such Egyptian requests.
True, the recent terrorist attack where infiltrators from Sinai caused Israeli casualties coupled with the repeated blowing up of the pipeline carrying gas to Israel, seemingly confirm agreed unilateralism. If Israel had consented to the Egyptian demand, these violent incidents would not have occurred, the argument goes.
But, even if this is true, agreed unilateralism’s application can not be overstretched in order to in essence trample on bilateral agreements. International order is based on coordination. If international diplomacy is translated as unilateral responses to unilateral requests, then it is not negotiations that shape international landscape, but the influence of the side which exerts more efficient pressure. If nowadays, criticism is headed towards international law as the law of the strong, all the more in case of unrestricted agreed unilateralism.
This brings us back again to the United Nations and September. The Palestinians have already announced their intentions to unilaterally quest for a U.N. Resolution acknowledging their status as a state. Their quest will probably be granted. The international community will agree on this.
Yet, the question is if this agreed unilateralism should be harnessed for the interests of international stability and legality. Would a U.N. proclamation of a Palestinian state create also an economically and politically viable one, a real state which could stand to the legitimate Palestinian aspirations? And what message would the international community transmit regarding international law, when previous Security Council Resolutions, such as 242, as well as the Oslo Accords, explicitly endorse a bilateral, negotiations stance?
Ten years after the 9/11 response Resolution endorsing agreed unilateralism, the United Nations is called to define now also its limits. This is how it is after all; from September to September.