September 13 version of UN summit outcome document

Negotiations at the UN produced a new version, the September 13 version, of the final outcome document of the UN summit that opens tomorrow, September 14-16. The pdf is available at Global Policy Forum, here. Global Policy Forum has a useful page, here, updated frequently, on various UN reform issues with links to original documents as well as analysis.

I have only had a chance to skim the new September 13 draft, but it is significantly shorter - about ten pages shorter - than earlier drafts. Among other items, it compromises on the .7% GDP OPDA issue, offering encouragement but no commitment. It also drops any attempt at a definition of terrorism, and pushes it off into a future draft of a treaty on terrorism. Security Council reform is also pushed off, although with a supposedly firm date for resolution, by December 2005. In the use of force category, beyond the hortatory stuff about the responsibilities of the Security Council, it does not, at first reading anyway, appear to constrain in any new way - in particular, the imminence issue does appear to be in this draft (I reserve to read more carefully.) It calls for creation of a Human Rights Council, but pushes off to the General Assembly to figure out who gets to join it and under what terms.

In general, the document is the usual UN goody-grab bag of something for everyone and very little that means anything, and the postponement of anything that might cause anyone pain. If this were openly acknowledged as compromises that are frankly acknowledged to be paralysis because the nations of the world simply do not agree, that would be a step forward - not diplomatic and therefore a step forward in transparency. Instead, however, the document pretends that formulas of paralysis are steps forward.

Symptomatic of this is the number of times the document solemnly declares that x and y are "mutually reinforcing" - all the different supposed human rights, for example, including economic, social, and cultural rights, or economic growth and environmental protection, for another example - when that is manifestly not the case. They are, rather, very frequently competing values and competing social goods. Each is a kind of good, but they involve tradeoffs. The characteristic approach of this document, what puts it into never-never land, is the assertion - as though a tone of sufficient gravitas will make it so - that mere declaration can turn trade-offs into "mutually supporting pillars," as the document says about sustainable development.

One might as well put as the motto over the door of the United Nations, "There is a free lunch."

On the basis of this document, then, the US will have done very little to advance its goals of UN reform - certainly this signals nothing real about transformation of the UN's patronage, bureaucratic, corruption culture, all the attention to it in the document notwithstanding. Perhaps I am wrong about that and too pessimistic; I hope so.

On the other hand, thanks to Bolton's edits, relatively little damage will have been sustained - although that is not entirely so, as the accretion of small, apparently meaningless, hortatory individual documents that shift the conversation always one way is one important reason the US position at the UN has weakened. Only occasionally does the US take a robust, undiplomatic stand in opposition, and when it does, it then has to face the consequences of having allowed the diplomatic conversation to have drifted away over the course of years and years by countries that frequently have nothing better to do than yack and write memos and, of course, few other avenues for pursuing their policies.

There are, however, a couple of ways in which the document does contain serious challenges to US ideals and interests. One of them is found at para. 149, on the role of the General Assembly. That paragraph refers to the role of the General Assembly in "standard setting and the codification of international law." The language is somewhat ambiguous, but it can be read - and will be read to mean by the International Court of Justice - that General Assembly resolutions can be read, notwithstanding that the Charter says they are non-binding, as important if not definitive sources of international law. The ICJ is already turning into an echo chamber for the General Assembly, citing its supposedly non-binding resolutions as though it were strong evidence -over, for example, state practice - of international law. The Assembly responds by giving it ever more resolutions to cite. Although the language of 149 can be read to mean nothing more than what it has long been taken to mean - non-binding, not especially good evidence of international law (Cf. the Restatement of Foreign Relations Law, 3rd), it is easy to take this as license to take GA resolutions as far, far more. Nor is this limited as a matter of concern to ICJ jurisprudence - it is very easy to see a US judge, hearing an Alien Tort Statute case and trying to figure out the content of customary international law, looking to General Assembly resolutions and, on the basis of the seemingly US-approved language and notwithstanding the language of the Charter, saying that the GA resolution will be determinative of the content of customary law. This is, in my view, quite disturbing language.

More generally, the United States needs to consider how to address concerns in a document that represents in large part a compromise, but which contains ambiguous language that could be read by various organs against US views. The US ought to prepare a statement - and announce it as opinio juris - of the interpretations that the US gives to these ambiguities, in no small part to protect itself in US court ATS cases, among other situations.