UNHCR Photo/24281/A. Hollmann

Liberal internationalists have never felt comfortable questioning the relevance of the United Nations Charter. The Charter is Holy Writ; to criticize it implies a lack of commitment to international engagement and cooperation. Liberal internationalists like to be known as cosmopolitan in their appreciation of things that are different, unusual, "foreign". Criticism of the Charter has thus been caricatured as the métier of the xenophobic right, the "black helicopter" spotters, a group long unburdened with a desire to appear urbane or sophisticated.

The asymmetry of criticism directed at the United Nations has been unfortunate, most of all for the Organization itself. For it has denied the United Nations the benefit of thoughtful ideas for reform from those who most respect it. Of course, liberal academics have advanced various proposals for tinkering at the margins - adding a seat to the Security Council here, changing the contribution structure there - but, by and large, when it has come to really "speaking truth to power", to delivering unvarnished, no-holds-barred criticism of core elements of the Charter or the Organization, UN supporters have been its worst enemies.

The UN's marginalization in Kosovo is a consequence. Year by year, it became more and more clear that the Charter contains a fundamental flaw: it is oblivious to barbarism of the most horrific sort, so long as that barbarism remains purely internal. So long as genocide occurs within a State's own borders, the Charter regards sovereignty as the controlling principle. Intervention to stop it is impermissible. The Security Council is disabled from acting under Article 39 because there is no threat to the peace, breach of the peace or act of aggression. Individual States are prohibited from using force under Article 2(4) because to do so would violate the territorial integrity of the genocidal State. Thus, in Cambodia, Uganda and Iraq, the Charter provided no lawful recourse in the face of millions of deaths at the hands of modern-day madmen. The real problem of violence confronting the international community, it has become apparent, is no longer interstate violence. The idée fixe at which the Charter's core prohibitions are directed is invasion, the paradigm being the 1939 German invasion of Poland. The transcendent problem, it was thought in 1945, was interstate conflict. But the recurrent problem today is not invasion; the problem today is intrastate violence, not interstate violence.

The solution to the Charter's anachronistic focus that has been proffered by the UN's friends has not been helpful. That solution has been to pretend that the Charter in fact permits the Security Council to intervene or to authorize intervention by individual States, where the Charter clearly outlaws intervention. We can pretend that it permits such intervention, they suggest, by arguing that its meaning has "evolved"; the Charter is after all a constitution of sorts, and constitutions have play at the joints sufficient to adapt to changed times and circumstances.

The difficulty with this argument is that it runs counter to the plain language of Articles 39 and 2(4)-to say nothing of Article 2(7), which flatly prohibits UN intervention in matters within the States' domestic jurisdiction. It is one thing to view a constitutive regime as evolving interstitially between the gaps of textual provisions. It is quite another, however, to think that it can evolve to take on a meaning contrary to express textual prohibitions and limitations.

In fact, the adaptivist argument is a dangerous one for the United Nations. States will be less likely to join treaty regimes if they can later be told that the treaties have come to mean something altogether different than what they agreed to.

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