* I am grateful to Philip Alston for comments and constructive criticism of this essay.

1 Jürgen, Habermas, Interpreting the Fall of a Monument, 4 Ger.L. J. 701 (2003), at <http://www.germanlawjournal.com>Google Scholar, translated from Was bedeutet der Denkmalsturz, Frankfurter Allgemeine Zeitung, Apr. 17, 2003, at 33 Google Scholar.

2 Thomas M., Franck, La Charte des Nations Unies est–elle devenue un chiffon de papier”? Le Monde, Apr. 2, 2003 Google Scholar.

3 Michael J., Glennon, Why the Security Council Failed, Foreign Aff., May/June 2003, at 16, 30–32 Google Scholar; see also Michael J., Glennon, The Fog of Law: Self–Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harv. J. L. & Pub. Pol’y 539 (2002)Google Scholar.

4 For doubts, see Anne-Marie Slaughter’s critique of Glennon, Misreading the Record, Foreign Aff., July/Aug. 2003, at 202, 203 Google Scholar (“But in any legal system, international or domestic, breaking the law does not make the law disappear.”). See also the earlier assessment by Albrecht Randelzhofer, Article 2(4), in 1 The Charter of the United Nations 112, 136, para. 71 (Bruno Simmaed., 2ded. 2002) (“even repeated violations of a rule of law do not amount to the abrogation of this rule”).

5 See generally Hans J., Morgenthau, Politics Among Nations: The Struggle for Power and Peace 214 (1948)Google Scholar.

6 Georg, Nolte, The Limits of the Security Council’s Powers and Its Functions in the International Legal System: Some Reflections, in The Role of Law in International Politics 315, 319 (Michael, Byers ed., 2000)Google Scholar. See generally Ian, Johnstone, Security Council Deliberations: The Power of the Better Argument, 14 Eur. J. Int’l L. 437 (2003)Google Scholar.

7 See Carsten, Stahn, Terrorist Acts as “Armed Attack”: The Right to Self–Defense, Art. 51(1/2) of the UN Charter, and International Terrorism, Fletcher F. World Aff., Summer/Fall 2003, at 35, 40 Google Scholar.

8 For similar approaches, see Richard A., Falk, What Future for the UN Charter System of War Prevention? 97 AJIL 590, 594 (2003)Google Scholar; Jane E., Stromseth, Law and Force After Iraq: A Transitional Moment, 97 AJIL 628, 633 (2003)Google Scholar.

9 Habermas, supra note 1, at 706.

10 See Thomas M., Franck, What Happens Now? The United Nations After Iraq, 97 AJIL 607, 614 (2003)Google Scholar; Jochen Abr., Frowein, Issues of Legitimacy Around the Security Council, in Negotiating For Peace: Liber Amicorum Tono Eitei 121, 125–26 (Jochen Abr., Frowein, Klaus, Scharioth, Ingo, Winkelmann, & Rüdiger, Wolfrum eds., 2003)Google Scholar; Claus, Kreß, Strafrecht und Angriffskrieg im Licht des “Falles Irak,” 115 Zeitschrift Für Die Gesamte Strafrechtswissenschaft 294, 326 Google Scholar (forthcoming) (on file with author); Christian, Tomuschat, Iraq—Demise of International Law? 78 Die Friedens–Warte (forthcoming 2003)Google Scholar (on file with author); Jochen Abr., Frowein, 1st das Völkerrecht tot? Frankfurter Allgemeine Zeitung, July 23, 2003, available at <http://www.mpil.de>Google Scholar [hereinafter Frowein, 1st das Völkerrecht tot?]; Rüdiger Wolfrum, Iraq—A Crisis for our System of Collective Security (Feb. 24, 2003), at <http://www.mpil.de/en/Wolfrum/eirak.pdf>; see also Rainer, Hofmann, International Law and the Use of Military Force Against Iraq, 2002 Ger.Y.B. Int’L. L. 33 Google Scholar. See in addition the earlier statements by Niels, Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing,’ 11 Eur. J. Int’l L. 541, 559 (2000)Google Scholar; Bardo, Fassbender, Uncertain Steps into a Post—Cold War World: The Role and Functioning of the UN Security Council After a Decade of Measures Against Iraq, 13 Eur. J. Int’l L. 273, 277–78 (2002)Google Scholar; Christine, Gray, From Unity to Polarization: International Law and the Use of Force Against Iraq, 13 Eur.J. Int’l L. 1, 10 (2002)Google Scholar; Jules, Lobel & Michael, Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease–Fires and the Iraqi Inspection Regime, 93 AJIL 124, 127 (1999)Google Scholar. But see Christopher, Greenwood, International Law and the Pre–emptive Use of Force: Afghanistan, Al–Qaida, and Iraq, 4 San Diego Int’l L.J. 7, 36 (2003)Google Scholar; Ruth, Wedgwood, The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self Defense, 97 AJIL 576, 582 (2003)Google Scholar.

11 The Council declared itself “seized of the matter” in paragraph 34 of Resolution 687 (Apr. 3, 1991), 30 ILM 846 (1991)Google Scholar, and paragraph 5 of Resolution 1154 (Mar. 2, 1998), 37 ILM 503 (1998), and expressly reserved to itself the power to take the steps required for the implementation of its resolutions and to “secure peace and security in the area,” making further enforcement action conditional on a specific, new authorization. Furthermore, the Council’s Resolution 1441 (Nov. 8, 2002), 42 ILM 250 (2003), did not automatically revive the authorization to use force given under Resolution 678 (Nov. 29, 1990), 29 ILM 1565 (1990). It is sometimes inferred from the framing of paragraph 12 of Resolution 1441 that there was no requirement for a second resolution because the resolution merely required “consideration,” and not a “decision,” by the Council before further action was taken. See Lord, Goldsmith, Attorney General Clarifies Legal Basis for Use of Force Against Iraq (Mar. 18, 2003), available at <http://www.fco.gov.uk>>Google Scholar (statement in answer to a parliamentary question). However, this argument is not convincing. The absence of a reference to a further “decision” of the Council in Resolution 1441 does not in itself grant states a (positive) right to act unilaterally (ex silencio jus non oritur). The U .S. position that Resolution 1441 “does not constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolutions and protect world peace and security” suffers from the same deficit. UN Doc. S/PV.4644, at 3 (2002) (statement of Ambassador Negroponte). For a discussion, see Stahn, supra note 7, at 49.

12 The explicit purpose of Resolution 687 was the disarmament of Iraq. Resolution 678, supra note 11, referred more generally in paragraph 2 to the authorization of states to “restore international peace and security in the area.” It would be unreasonable to interpret these terms so as to grant UN member states a right to remove the Iraqi regime by force. It is clear from the context of Resolution 687 that the words “restore . . . security in the area” were added to facilitate the transition from the state of conflict in 1990 to peace. Similarly, it cannot be argued that the reference to “all subsequent relevant resolutions” in paragraph 1 of Resolution 678 was intended to grant states a right to enforce all resolutions relating to Iraq adopted after November 29, 1990. It must be assumed that Resolution 678 referred only to Resolution 660 and the eleven other resolutions existing at the time it was adopted. For a discussion of the problem of regime change in Afghanistan, see Carsten, Stahn, International Law at a Crossroads? The Impact of September 11, 62 Zeitschrift Für Ausländisches Öffentliches Recht und Völkerrecht [Zaörv] 184, 229–32 (2002)Google Scholar.

13 See generally Wilhelm G., Grewe, The Epochs of International Law (Michael, Byers trans. & reviser, 2000)Google Scholar. For more recent assessments, see Hurst, Hannum, Bellum Americanum, Fletcher F. World Aff., Winter/Spring 2003, at 29 Google Scholar; Henry J., Richardson III, U.S. Hegemony, Race, and Oil in Deciding United Nations Security Council Resolution 1441 on Iraq, 17 Temp. Int’l & Comp. L.J. 27 (2003)Google Scholar; Detlev F., Vagts, Hegemonic International Law, 95 AJIL 843 (2001)Google Scholar.

14 See Benedict, Kingsbury, The International Legal Order, in Oxford Handbook of Legal Studies 271, 273 (Peter, Cane & Mark, Tushnet eds., 2003)Google Scholar. For a discussion of different categories of thought in international relations, see Benedict, Kingsbury & Adam, Roberts, Introduction: Grotian Thought in International Relations, in Hugo Grotius and International Relations 1 (Hedley, Bull, Benedict, Kingsbury, & Adam, Roberts eds., 1990)Google Scholar.

15 Habermas, supra note 1, at 706; cf. Glennon, supra note 3, at 30 (“What were once working rules become paper rules.”). For discussion, see Richardson, supra note 13, at 44–45.

16 See Falk, supra note 11, at 594 (qualifying the intervention in Iraq as “a militant version of Wilsonian idealism”).

17 See Kingsbury, supra note 14, at 285.

18 See Frowein, 1st das Völkerrecht tot? supra note 10.

19 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 98, para. 186 (June 27).

20 Nico, Krisch, The Rise and Fall of Collective Security: Terrorism, US Hegemony, and the Plight of the Security Council, in Terrorism as A Challenge For National and International Law: Security Versus Liberty? (Christian, Walter, Silja, Vöneky, Volker, Röben, & Frank, Schorkopf eds., 2003)Google Scholar [hereinafter Terrorism as A Challenge], available at <http://edoc.mpil.de/conference–on–terrorism/index.cfm>.

21 The Council acted merely as a juror over the exercise of self–defense. See SC Res. 1368, pmbl. (Sept. 12, 2001), 40 ILM 1278 (2001); SC Res. 1373, pmbl. (Sept. 28, 2001), 40 ILM at 1278.

22 See George W., Bush, Address to the United Nations General Assembly in New York City, 38 Weekly Comp. Pres. Doc. 1529, 1532 (2002)Google Scholar (asking whether United Nations would serve purpose of its founding or become irrelevant). On the reported “optionality” of the collective security system, see David E., Sanger, U.S. Says U.N. Could Repeat Errors of 90’s, N.Y. Times, Mar. 11, 2003, at A1 Google Scholar.

23 See, e.g., Michael, Byers, Preemptive Self–Defense, Hegemony, Equality and Strategies of Legal Change, 11 J. Pol. Phil. 171 (2003)Google Scholar; Michael, Byers, The Shifting Foundations of International Law: A Decade of Forceful Measures Against Iraq, 13 Eur.J. Int’l L. 21, 38 (2002)Google Scholar.

24 See Amnesty International, International Criminal Court—The Unlawful Attempt by The Security Council to Give Us Citizens Permanent Immunity From International Justice (AI Index No. IOR 40/006/2003), available at <http://web.amnesty.org>; see also Carsten, Stahn, The Ambiguities of Security Council Resolution 1422 (2002), 14 Eur.J. Int’l L. 85 (2003)Google Scholar.

25 The National Security’ Strategy of The United States of America (Sept. 17, 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf> [ hereinafter National SecurityStrategy]. For discussion, see Miriam, Sapiro, Iraq: The Shifting Sands of Preemptive Self–Defense, 97 AJIL 599, 602 (2003)Google Scholar; Michael N., Schmitt, Preemptive Strategies in International Law, 24 Mich.J. Int’l L. 513, 516 (2003)Google Scholar; Carsten, Stahn, “Nicaragua Is Dead, Long Live Nicaragua”— The Right to Self–Defence Under Art. 51 UN Charter and International Terrorism, in Terrorism as a Challenge, supra note 20 Google Scholar. See generally Tom J., Farer, Beyond the Charter Frame: Unilateralism or Condominium? 96 AJIL 359 (2002)Google Scholar.

26 On U.S. attitudes toward legal constraints, see generally Nico, Krisch, Weak as Constraint, Strong as Tool: The Place of International Law in U.S. Foreign Policy, in Unilateralism and U.S. Foreign Policy: International Perspectives 41 (David M., Malone & Yuen, Foong Khong eds., 2003)Google Scholar.

27 For a similar argument in the context of Kosovo, see Johnstone, supra note 6, at 478. “Discursive,” as it is used here, refers to the function of discourse in promoting democracy and law, as developed by Habermas. .Sec note 127 infra.

28 The reaction to the use of military force was mixed overall. According to the White House, forty–nine countries, including nations from every continent, publicly supported the coalition. White House Information Sheet, Coalition Members (Mar. 27, 2003), at<http://www.whitehouse.gov/news/releases/2003/03/20030327–10.html>; see also Sean D., Murphy, Contemporary Practice of the United States, 97 AJIL 419, 428 (2003)Google Scholar. Their contributions ranged from direct military participation, logistical and intelligence support, and specialized chemical and biological response teams, to overflight rights and humanitarian reconstruction aid. Other countries, including Argentina, Austria, Belgium, France, Germany, Indonesia, Iran, Ireland, Lebanon, Mexico, Pakistan, Russia, Sweden, and Syria, spoke out publicly against the use of force without a second Council resolution. Acronym Institute for Disarmament Diplomacy, ‘Operation Iraqi Freedom’: A Compilation of Statements, at <http://www.acronym.org.uk/docs/0303/doc.25.htm> (visited Oct. 15, 2003). Other states refrained from taking a clear position in the form of open criticism or public support for the military campaign.

29 On this concept in the context of constitutional interpretation, see Peter, Häberle, Die offene Gesellschaft der Verfassungsinterpreten. Ein Beitrag zur pluralistischen und “prozessualen” Verfassungsinterpretation , 30 Juristenzeitung 297 (1975)Google Scholar.

30 Nolte, supra note 6, at 319. For the view that legal authority may in some cases be regarded as a matter of degree in the context of a legal instrument, which is open to discourse, legal interpretation, and adaptation, see Tom, Farer, A Paradigm of Legitimate Intervention, in Enforcing Restraint: Collective Intervention in Internal Conflicts 316, 317 (Lori, Fisler Damrosch ed„ 1993)Google Scholar.

31 See generally Kingsbury, supra note 14, at 283–86.

32 See Jochen Abr., Frowein, Unilateral Interpretation of Security Council Resolutions—A Threat to Collective Security? in Liber Amicorum Günther Jaenicke—Zum 85. Geburtstag 98 (Volkmar, Götz, Peter, Selmer, & Rüdiger, Wolfrum eds., 1998)Google Scholar; Nico, Krisch, Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council, 1999 MAX Pi anck Y.B. UN L. 59 Google Scholar; see also Mariano J., Aznar Gómez, A Decade of Human Rights Protection by the UN Security Council: A Sketch of Deregulation? 13 Eur. J. Int’l L. 223, 233 (2002)Google Scholar.

33 The UK Foreign Office took the view that the action was justified by the principle of humanitarian intervention. United Kingdom Materials on International Law, 1992 Brit. Y.B. Int’l L. 824 Google Scholar. It was argued that “the measures . . . were justified under international law in response to a situation where there was demonstrably overwhelming humanitarian need.” Furthermore, the action was said to be undertaken in support of UN SCR 688 which demanded that the Iraqi Government cease [] its repression of the civilian population and demanded that it cooperate with the United Nations humanitarian relief programmes.” UK FCO Spokesman, Statement (Aug. 20, 1992), reprinted in Iraq and Kuwait: The Hostilities and Their Aftermath 724 (M. Weller ed., 1993).

34 See Simon, Chesterman, Just War Or Just Peace? Humanitarian Intervention and International Law 216–18 (2001)Google ScholarPubMed; Philip, Allott, Kosovo and the Responsibility of Power, 13 Leiden J. Int’l L. 83 (2000)Google Scholar; Antonio, Cassese, Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? 10 Eur. J. Int’l L. 23 (1999)Google Scholar; Vera, Gowlland–Debbas, The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance, 11 Eur. J. Int’l L. 361 (2000)Google Scholar; Louis, Henkin, Kosovo and the Law of “Humanitarian Intervention,” 93 AJIL 824 (1999)Google Scholar; Michael Reisman, W., Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 Eur. J. Int’l L. 3 (2000)CrossRefGoogle Scholar; Bruno, Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 Eur. J. Int’l L. 1 (1999)Google Scholar.

35 SC Res. 1199 (Sept. 23, 1998), 38 ILM 249 (1999); SC Res. 1203 (Oct. 24, 1998).

36 Carsten, Statin, Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say, EJIL Forum, at <http://www.ejil.org/forum/index.html> (last modified Nov. 26, 2001)Google Scholar.

37 .See Paul C., Szasz, The Security Council Starts Legislating, 96 AJIL 90 (2002)Google Scholar. For a critical appraisal, see Gaetano, Arangio-Ruiz, On the Security Council’s “Law-Making,” 83 Rivista Di Diritto Internazionale 609 (2000)Google Scholar

38 For characterization of Resolution 687 as a surrogate peace treaty, see Fassbender, supra note 10, at 279; see also Christian, Tomuschat, How to Make Peace After War—The Potsdam Agreement of 1945 Revisited , 72 Die Friedens–Warte 11, 27 (1997)Google Scholar.

39 See Jurij, Daniel Aston, Die Bekdmpfung abstrakter Gefahren fur den Weltfrieden durch legislative Maßnahrnen des Sicherheitsrats—Resolution 1373 (2001) im Kontext, 62 ZaöRV 257 (2002)Google Scholar.

40 France pleaded for the maintenance of this principle, which was embodied in Article 15(7) of the Covenant of the League of Nations. France was joined by Australia, which argued in favor of a collective enforcement provision, stating:

Quoted in Ruth, B. Russei, L. (assisted by Jeannette E., Muther), A History of the United Nations Charter 690 (1958)Google Scholar.

41 This view was clearly expressed in a report of Committee I/1, which stated that “[t]he use of force is left possible only in the common interest. As long as we have an Organization, the Organization only is competent to see the common interest and to use force in supporting it.” Doc. 944, I/1/34, 6 U.N.C.I.O. Docs. 446, 451 (1945).

42 Article 39 states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” (emphasis added). The concept of decentralized use of force was conceived as only a provisional and exceptional mechanism, allowed in the specific cases covered by Articles 42(2), 48, and 106 of the Charter. See further Jochen Abr., Frowein & Nico, Krisch, Introduction to Chapter VII, in The Charter of the United Nations, supra note 4, at 701, 713–14 Google Scholar, para. 36.

43 See generally Thomas M., Franck, When, If Ever, May States Deploy Military Force Without Prior Security Council Authorization? 5 Wash. U.J. L. & Pol’y 51, 57 (2001)Google Scholar.

44 The assumption that member states would provide the Council with the necessary forces did not become a reality owing to political differences between them in the postwar period. Jochen Abr., Frowein & Nico, Krisch, Article 43, in The Charter of The United Nations, supra note 4, at 760, 762–63 Google Scholar, para. 9.

45 The first visible illustration of this process was the Council’s reaction to the Korea crisis in 1950. This incident was followed by the Council’s systematic practice of authorizing coalitions of the “able and willing” to exercise military force under Chapter VII. In the 1990s, such cases included those of Iraq, Somalia, Bosnia, Haiti, Rwanda, eastern Zaire, Albania, the Central African Republic, Kosovo, and East Timor. The ability of the Council to authorize military enforcement measures under Article 42 despite the absence of agreements under Article 43 was implicitly affirmed by the ICJ in the Certain Expenses case, where the Court stated that the Charter could not be read as leaving the Council “impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.” Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ Rep. 151,167 (July 20). Nevertheless, the authorization of states to implement Chapter VII measures marked a substantial shift within the UN institutional system because it reversed the rule and turned it into the exception.

46 This transformation has not escaped criticism. See the statements of Iraq, Yemen, and Cuba, respectively, on Security Council Resolution 665, UN Doc. S/PV.2938, at 8–11, 12–15, 71 (1990). See also the critical analysis by Blokker, supra note 10, at 555–60. In Resolution 665, the Council requested that states “cooperating with the Government of Kuwait” coordinate their actions by means of the Military Staff Committee envisaged in Article 43 of the Charter. However, the U.S.–led alliance left the mechanism of the committee dormant.

47 One of the most outspoken advocates of a restrictive understanding of Article 2(4) is Professor D’Amato, who defends the legality of limited interventions that do not entail changes in territorial integrity. Anthony, D’ Amato, I International Iaw: Process and Prospect 57–73 (1987)Google Scholar; Anthony, D’Amato, The Invasion of Panama Was a Lawful Response to Tyranny, 84 AJIL 516, 520 (1990)Google Scholar. For an argument in favor of an exception to Article 2(4) for forcible counterterror operations, see Gregory M., Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Int’l L.J. 145, 166 (2000)Google Scholar.

48 For a survey, see Stahn, supra note 25, pt. III.

49 See generally Christian, Walter, Vereinte Nationen Und Regionalorganisationen: Eine Untersuchung Zu Kapitel VIII Der Satzung Der Vereinten Nationen 321 (1996)Google Scholar.

50 UN Charter Art. 53 (1).

51 Thomas M., Franck, Recourse to Force: State Action Against Threats and Armed Attacks 155–62 (2002)Google Scholar.

52 The establishment of the mission would have required the approval of the Council because it involved the use of force against a rebel force supported by nearby African states.

53 For a detailed discussion of the ECOWAS action, see Georg, Nolte, Restoring Peace by Regional Action: International Legal Aspects of the Liberian Conflict, 53 ZaöRV 603 (1993)Google Scholar.

54 SC Res. 1132 (Oct. 8, 1997).

55 Christine, Gray, International Law and the Use of Force 40 (2000)Google Scholar.

56 See sources cited supra note 34.

57 Constitutive Act of the African Union, July 11, 2000, Art. 4, 2000 Afr. Y.B. Int’l L. 479, available at <http://www.au2002.gov.za/docs/key_oau/au_act.htm>.

58 See Yoram, Dinstein, War, Aggression and Self–Defence 271–72 (3d ed. 2001)Google Scholar; Gray, supra note 55, at 40; Peter, Hilpold, Humanitarian Intervention: Is There a Need for a Legal Reappraisal? 12 Eur. J. Int’l L. 437, 461 (2001)Google Scholar.

59 See Henkin, supra note 35, at 827.

60 See Craig, Scott, Interpreting Intervention, 2001 Can. Y.B. Int’l L. 333 Google Scholar.

61 SC Presidential Statement, UN Doc. S/22133 (1991).

62 SC Res. 788 (Nov. 19, 1992).

63 SC Res. 1260 (Aug. 20, 1999).

64 SC Res. 1270 (Oct. 22, 1999).

65 Scott, supra note 60, at 354–55.

66 SC Res. 1244 (June 10, 1999). See generally Carsten, Stahn, International Territorial Administration in the Former Yugoslavia: Origins, Developments and Challenges Ahead, 61 ZaöRV 107 (2001)Google Scholar; Carsten, Stahn, The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis, 2001 Max Planck Y.B. UN L. 105, 115 Google Scholar.

67 In particular, many Western countries openly stated that they regarded Operation Enduring Freedom as being “legitimate and in accordance with the terms of the Charter and Security Council resolution 1368 (2001).” UN Doc. S/PV.4414 (resumption 1), at 2 (2001) (statement of Belgium, speaking for the European Union). For a survey of reactions, see Jack M., Beard, America’s New War on Terror: The Case for Self–Defense Under International Law, 25 Harv.J. L. & Pub. Pol’y 559 (2002)Google Scholar.

68 For a full discussion, see Statin, supra note 12, at 229–32. For doubts, see Jost, Delbrück, Self–Defense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the ‘War Against Terrorism,’ 2001 Ger.Y.B. Int’l L. 9, 21 Google Scholar.

69 See Scott, supra note 60, at 355.

70 See generally Bardo, Fassbender, Un Security Council Reform and the Right of Veto: a Constitutional Perspective (1998)Google Scholar.

71 See Martti, Koskenniemi, ‘The Lady Doth Protest Too Much’: Kosovo, and the Turn to Ethics in International Law, 65 Mod. L. Rev. 159, 169 (2002)Google Scholar. In another context, see also Nolte, supra note 6, at 319. For a critique of this argument as applied to NATO’s use of force in Kosovo, see Michael, Byers & Simon, Chesterman, Changing the Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law, in Humanitarian Intervention: Ethical, Legal and Political Dilemmas 202 (Holzgrefe, J. L. & Robert O., Keohane eds., 2003)Google Scholar (“a select group of states (such as Western liberal democracies, or perhaps the United States alone) agreeing on criteria [for intervention] among themselves—would seriously undermine the current system in international law”).

72 Mohammed, Ayoob, Humanitarian Intervention and International Society, Global Governance, July–Sept. 2001, at 7 Google Scholar.

73 Daniele, Archibugi, Cosmopolitan Guidelines for Humanitarian Intervention (Oct. 2, 2002)Google Scholar (on file with author) (“It will certainly be contradictory for a totalitarian government to deliberate the need of a humanitarian intervention in another state while it is itself violating human rights domestically.”)

74 See Stromseth, supra note 8, at 632.

75 The ICJ stated in the Nicaragua case that the prohibition of the use of force “is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.” Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 100, para. 190 (June 27). For express characterization of the prohibition as jus cogens, see Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2Y.B. Int’l L. Comm’n 172, 247, UN Doc. A/CN.4/SER.A/1966/Add.1; see also Military and Paramilitary Activities in and Against Nicaragua, supra, 1986 ICJ. Rep. at 153 (Nagendra Singh, J., sep. op.).

76 See Jonathan I., Charney, Anticipatory Humanitarian Intervention in Kosovo, 93 AJIL 834, 841 (1999)Google Scholar; Simma, supra note 34, at 1–6.

77 See Mark Weisburd, A., International Law and the Problem of Evil, 34 Vand.J.Transnat’l L. 237, 238–41 (2001)Google Scholar.

78 See, e.g., Chesterman, supra note 34, at 226; Dinstein, supra note 58, at 270–71; Franck, supra note 51, at 180–81; Charney, supra note 76, at 837; Hilpold, supra note 58, at 461; Randelzhofer, supra note 4, at 130–32, para. 56.

79 See the European authors listed in note 10 supra.

80 Franck, supra note 10, at 614; see also Anne–Marie, Slaughter, Good Reasons for Going Around the U.N ., Int’l Herald Trib., Mar. 19, 2003, at 8 Google Scholar (“illegal but legitimate”).

81 Doc. 944, supra note 41, at 451.

82 See Krisch, supra note 32, at 93–94. To grant non–Charter–based entities such a power would press the Council to become more cautious in its determinations of threats to the peace under Article 39 of the Charter, which might in turn compromise the entire functioning of the collective security system. Deviation from the requirement of authorization might also invite the powerful to make questionable claims to be acting as custodians of universal values.

83 For similar considerations in the context of humanitarian intervention, see Lori, Fisler Damrosch, The Inevitability of Selective Response? Principles to Guide Urgent International Action, in Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship 405, 407 (Albrecht, Schnabel & Ramesh, Thakur eds., 2000)Google Scholar.

84 For a survey of contextual features distinguishing Kosovo, and to a lesser extent, Iraq from other types of interventions, see Tom J., Farer, The Prospect for International Law and Order in the Wake of Iraq, 97 AJIL 621, 625 (2003)Google Scholar.

85 See Farer, supra note 30, at 327.

86 UN Charter Art. 51,1st sentence; see also id., 2d sentence (“responsibility of the Security Council... to take at any time such action as it deems necessary”).

87 Chesterman, supra note 34, at 226–29.

88 For an early statement in this mode, see Oscar, Schachter, International Law in Theory and Practice 126 (1991)Google Scholar (“Even in the absence of such prior approval, a State or group of States using force to put an end to atrocities when the necessity is evident and the humanitarian intention is clear is likely to have its action pardoned.”). But see Gray, supra note 55, at 40 (“It is very doubtful whether . . . UN–authorized state action or regional peacekeeping could amount to a basis for a new right of humanitarian intervention not expressly authorized by the Security Council, such as the action over Kosovo.”).

89 The most systematic attempt to conceptualize the practice regarding the use of force was undertaken by Franck, supra note 51, at 174–91.

90 Id. at 185–86; Ian, Brownlie, Thoughts on Kind–Hearted Gunmen, in Humanitarian Intervention and the United Nations 139, 146 (Richard B., Lillich ed., 1973)Google Scholar; Farer, supra note 85, at 327.

91 As regards humanitarian intervention, see Cassese, supra note 34, at 29, who argues that the unlawful NATO intervention in Kosovo “may gradually lead to the crystallization of a general rule of international law authorizing armed countermeasures for the exclusive purpose of putting an end to large–scale atrocities amounting to crimes against humanity and constituting a threat to the peace.”

92 The Council declared its support for the “international efforts to root out terrorism” in SC Res. 1378, pmbl. (Nov. 14, 2001), 41 ILM 505 (2002).

93 See supra note 67.

94 While falling short of authorizing the occupation (“[c]alls upon,” see SC Res. 1483, para. 4 (May 22, 2003), 42 ILM 1016 (2003)), the Council entrusted the United States and the United Kingdom with a quasi mandate to carry out the administration of Iraq in cooperation with the United Nations presence. This step removed the foreign postwar presence in Iraq from the twilight of illegal occupation, and transformed “the Authority” and the United Nations into provisional trustees of the interests of the Iraqi people. But the measure does not necessarily imply a positive value judgment about the previous use of force.

95 Frederic L., Kirgis, Security Council Resolution 1483 on the Rebuilding of Iraq, ASIL Insights, May 2003, available at <http://www.asil.org>Google Scholar. According to Kirgis:

96 SC Res. 1483, supra note 94, para. 4; see also id., para. 8 (requesting that the secretary–general appoint a special representative for Iraq, charged with reconstruction assistance “in coordination with the Authority”).

97 SC Res. 1511 (Oct. 16, 2003).

98 Id., para. 13. This authorization carries special weight because it was unanimous, supported by Germany and France, the most pronounced opponents of the use of force against Iraq.

99 Id., para. 13.

100 Id., paras. 1, 4, 6, 7, 8, 10.

101 UN Press Release SG/SM/8945 (Oct. 16, 2003), available at <http://www.un.org/News/ossg/sg/pages/sg_iraq.htm> (noting that the outcome clearly demonstrated “the will of all the members of the Security Council”).

102 Both the Council’s endorsement of the U.S.-British occupation (Resolution 1483, supra note 94) and its decision to authorize the deployment of an international security presence in Iraq (Resolution 1511, supra note 97) were driven by a dual objective: the need to safeguard the security of the “liberated” Iraqi people and the determination to allow Iraq to return to full sovereignty.

103 Corfu Channel (UK v. Alb.), Merits, 1949 ICJ Rep. 4, 29, 35 (Apr. 9).

104 Byers & Chesterman, supra note 71, point 6.

105 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty–third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc> [hereinafter ILC Draft Articles] (emphasis added).

106 Preparatory Commission for the International Criminal Court, Working Group on the Crime of Aggression, Discussion Paper Proposed by the Coordinator, UN Doc. PCNICC/2002/WGCA/RT.1/Rev.1. For other similar proposals, see Giorgio, Gaja, The Long Journey Towards Repressing Aggression, in 1 The Rome Statute of the International Criminal Court 427, 436 (Antonio, Cassese, Paola, Gaeta, & John R. W. D., Jones eds., 2002)Google Scholar.

107 Several theories may be advanced in order to explain this result. The most radical claim is that the abovementioned interventions simply do not violate jus cogens because they safeguard fundamental international interests, which are cogent as well. As regards humanitarian intervention, see Aznar Gómez, supra note 32, at 239 n.101; Antonio, Cassese, A Follow–up: Forcible Humanitarian Countermeasures and Opinio Necessitatis, 10 Eur. J. Int’l L. 791, 797 (1999)Google Scholar. Alternatively, it may be argued that the jus cogens status of the prohibition of the use of force does not comprise an obligation to impose sanctions for every violation, or that customary law has developed so that such actions can be pardoned.

108 ILC Draft Articles, supra note 105, Art. 41 (1), (2).

109 See generally Bin, Cheng, United Nations Resolutions on Outer Space: “Instant” Customary Law? 5 Indian J. Int’L L. 23 (1965)Google Scholar.

110 See Franck, supra note 51, at 187.

111 See ILC Draft Articles, supra note 105, Art. 20 (Consent), Art. 21 (Self–defence), Art. 23 (Force majeure), Art. 24 (Distress), Art. 25 (Necessity).

112 See Thomas M., Franck, Lessons of Kosovo, 93 AJIL 859 (1999)Google Scholar; Franck, supra note 43, at 65.

113 See Jörg, Paul Müller & Thomas, Cottier, Acquiescence, 1 Encyclopedia of Public International Law 14 (Rudolf, Bernhardt ed., 1992)Google Scholar.

114 See under the heading of “Mitigation,” FRANCK, supra note 51, at 185.

115 See Independent International Commission on Kosovo, The Kosovo Report: Conflict, International, Response, Lessons Learned 163–98 (2000)Google Scholar.

116 See generally Jochen Abr., Frowein, Der Terrorismus als Herausforderung für das Völkerrechl, 62 ZaöRV 879, 885 (2002)Google Scholar; Richard N., Gardner, Neither Bush nor the “Junsprudes, “97 AJIL 585, 589 (2003)Google Scholar; Michael Reisnian, W., Assessing Claims to Revise the Laws of War, 97 AJIL 82 (2003)Google Scholar.

117 Anthony, Clark Arend, International Law and the Preemptive Use of Military Force, Wash. Q., Spring 2003, at 89 Google Scholar: see also John, Yoo, International Law and the War in Iraq, 97 AJIL 563, 574 (2003)Google Scholar.

118 See National Security Strategy and sources cited supra note 25.

119 The Report in Connection with Presidential Determination Under Public Law 107–243, reprinted in 149 Cong. Rec. H1958, H1959 (daily ed. Mar. 19, 2003), which cites Charter Article 51 as a possible base of action, states that

The report adds that “based on existing facts, including the nature and type of the threat posed by Iraq, the United States may always proceed in the exercise of its inherent right of self–defense, recognized in Article 51 of the UN Charter.” Id. at H1960. Joint Resolution 114 of October 2, 2002, authorizing the use of the United States Armed Forces against Iraq, to which the report refers and which became Public Law 107–243, uses the concept of the threat to national security as the decisive parameter. It states:

H.J. Res. 114, 107th Cong. (2002). See also William H., Taft IV & Todd F., Buchwald, Preemption, Iraq, and International Law, 97 AJIL 557 (2003)Google Scholar.

120 See Falk, supra note 8, at 598; Franck, supra note 10, at 619; Sapiro, supra note 25, at 605.

121 Article 39 of the Charter charges t h e Council explicitly with countering “threats” to international peace and security. This duty includes, in particular, the right to take preventive action, whereas unilateral action under Article 51 is generally limited to the use of force as a response to, rather than in anticipation of, an armed attack.

122 See Patrick, McLain, Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of force Against Iraq, 13 Duke J. Comp. & Int’l L. 233, 286–90 (2003)Google Scholar.

123 Such an approach was obviously not directly foreseen by the drafters of the Charter, because Article 51 grants the Council the right to take “at any time” only the measures “necessary in order to maintain or restore international peace and security,” without mentioning the possibility of authorizing or validating measures of self–defense. However, the Council’s practice has clearly developed in this direction. On various occasions it has broken with the strict separation of self–defense and collective security under the Charter. The cases of Korea, see SC Res. 83 (June 25, 1950), Bosnia and Herzegovina, .see SC Res. 816 (Mar. 31,1993), and Iraq, see SC Res. 678 (Nov. 29, 1990), have shown that collective security action and measures taken in self–defense may become intertwined in the same effort. Ii also seems reasonable to grant the Council the power to pass judgment on the limits of self–defense. Since Article 51 authorizes the Council to take measures to maintain or restore international peace and security in situations of self–defense, it is hard to see why the Council should not enjoy the narrower right to determine the scope and content, of the right of self–defense in a declaratory resolution. .See Jochen Abr., Frowein & Nico, Krisch, Article 42 , in The Charter of The United Nations, supra note 4, at 749, 757–58 Google Scholar, paras. 22–24.

124 An important precedent was set by Security Council Resolution 661 (Aug, 6, 1990), 29 ILM 1325 (1990)Google Scholar, in which the Council recognized the existence of a right to self–defense immediately after Iraq’s invasion of Kuwait. Although the right to self–defense was mentioned only in the preamble to the resolution, the early reaction of the Council carried considerable weight. It thereby recognized the right of third states to use force against the Iraqi aggressor, independently of any special links with Kuwait. Collective self–defense was immediately placed in the overall context of the maintenance of international peace and security. Furthermore, by invoking the right to self-defense, the Council reaffirmed that the collective use of force against Iraq did not conflict with the economic sanctions imposed under Resolution 661. The early invocation of the right to self–defense was also one of the most striking features of the Council’s legal reaction to the September 11 attacks. Although the Council did not specifically mention the holder or the addressee of measures of self–defense in Resolutions 1368 and 1373, supra note 21, its reaction should not be underestimated. The Council is by no means required to affirm the existence of a case of self–defense. If it nevertheless invokes that right, this finding may provide important evidence for the legality of acts of force, which would normally not fall within the framework of self–defense. One may in fact argue that the Council exercises a preventive droit de regard concerning self–defense when mentioning this right even before its exercise, such as in the case of Afghanistan. In particular, such an approach may help to distinguish the permissible use of force from abusive claims of self–defense under the heading of an expanding concept of armed attack.

125 Obviously, the use of force against Iraq cannot be explained on the basis of the classic concept of self–defense. The military operation was not even covered by the broadest possible interpretation of self–defense under Article 51 of the Charter, which recognizes that the entry into force of the Charter preserved the right of states to respond to “imminent armed attacks” by referring to the “inherent right of individual or collective self-defence.” See, e.g., McLain, supra note 122, at 290; Sapiro, supra note 25, at 603; Wolfrum, supra note 10.

126 Article 51 is formally part of Chapter VII of the Charter.

127 Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), quoted in 2 John Bassett Moore, A Digest of International Law 412 (1906).

128 See Martin, Woollacott, The UN Has at Last Become the Forum of Global Opinion: The Iraq Crisis Has Strengthened the Organisation, Guardian, Mar. 14, 2003, at 22 Google Scholar, available in LEXIS, News Library, Non–US File.

129 For a detailed discussion of Habermas’s discursive theory and concept of deliberative democracy, see Jürgen, Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 118 (William, Rehg trans., 1996)Google Scholar; Jürgen, Habermas, Moral Consciousness and Communicative Action (Christian, Lenhardt & Shierry, Weber Nicholsen trans., 1990)Google Scholar; see also Johnstone, supra note 6, at 455.

130 This notion goes back to Leo, Gross, Autointerpretation in International Law, in 1 Essays on International. Law and Organization 382 (1984)Google Scholar.

131 For a similar argument, see Wolfrum, supra note 10.

132 See SC Res. 1511, supra note 97, para. 13.

133 See SC Res. 1483, supra note 94, para. 8.

134 For a survey of the UN practice, see Jarat, Chopra, Peace-Maintenance 37–53 (1999)Google Scholar; Outi, Korhonen & Jutta, Gras, International Governance in Post–Conflict Situations 48–142 (2001)Google Scholar; Steven R., Ratner, The New Un Peacekeeping 90 (1995)Google Scholar; see also Ralph, Wilde, From Danzig to East Timor and Beyond: The Role of International Territorial Administration, 95 AJIL 583 (2001)Google Scholar.

135 SC Res. 687, supra note 11, paras. 8–34.

136 SC Res. 1441, supra note 11, paras. 2–8 .

137 SC Res. 1483, supra note 94, paras. 4, 8.

138 SC Res. 1500, para. 2 (Aug. 14, 2003).

139 SC Res. 1511, supra note 97, para. 13.