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Until What? Enforcement Action or Collective Self-Defense?

Published online by Cambridge University Press:  27 February 2017

Eugene V. Rostow
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Extract

Should the Persian Gulf war of 1990-1991 be characterized as an “international enforcement action” of the United Nations Security Council or as a campaign of collective self-defense approved, encouraged, and blessed by the Security Council?

This is not simply a nice and rather metaphysical legal issue, but an extremely practical one. The question it presents is whether the control and direction of hostilities in the gulf, their termination, and the substance of the settlement they produce were handled by the Council as the Korean War was handled, that is, as a campaign of collective self-defense, or as the United Nations’ first “international enforcement action.” According to some international lawyers, characterizing the gulf war as a Security Council “enforcement action” under the untried procedures of Articles 42-50 of the Charter would in effect eviscerate Article 51, make the exercise of each state’s “inherent” right of self-defense subject to the permission of the Security Council, threaten the veto power of the permanent members of the Security Council, and thus lead to extremely grave and perhaps insoluble political difficulty. It could even destroy the United Nations.

Type
Agora: The Gulf Crisis in International and Foreign Relations Law, Continued
Information
American Journal of International Law , Volume 85 , Issue 3 , July 1991 , pp. 506 - 516
Copyright
Copyright © American Society of International Law 1991

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References

1 SC Res. 83 (June 27, 1950). See Y. Dinstein, War, Aggression and Self-Defence 142–43 (1988).

2 R. Hiscocks, The Security Council. A Study in Adolescence 219–27 (1973).

3 Glennon, The Constitution and Chapter VII of the United Nations Charter, in Agora: The Gulf Crisis in International and Foreign Relations Law, 85 AJIL 74, 81 (1991).

4 Mullerson’s remarks were made at the Conference on International Law and the Non-Use of Force, convened jointly by the American Society of International Law and the Soviet Association of International Law, Washington, D.C. (Oct. 4–6, 1990). For the Secretary-General’s comments, see Wash. Post, Nov. 9, 1990, at A30, col. 5.

5 Franck & Patel, UN Police Action in Lieu of War: “The Old Order Changeth,” in Agora, supra note 3, 85 AJIL at 63, 64 (emphasis added).

6 Id. at 63 (emphasis added).

7 Id.

8 Wight, The Balance of Power, in Diplomatic Investigations 149, 174 (H. Butterfield & M. Wight eds. 1966).

9 D. W. Bowett, Self-Defence in International Law 195–97 (1958). The authoritative scholarly analysis of the problem appears in M. S. Mcdougal & F. Feliciano, Law and Minimum World Public Order, chs. 3, 4 (1961).

10 Waldock, The Regulation of the Use of Force by Individual States in International Law, 81 Recueil des Cours 451, 495–96 (1952 II).

11 Y. Dinstein, supra note 1, at 196–97.

12 Article 2(4) reads: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (emphasis added).

13 E. de Vattel, The Law of Nations, bk. II, ch. IV, §51, at 154 (Chitty ed. 1852) (1758).

14 The relationship between the Security Council and the UN regional organizations is analyzed in I. Claude, Jr., Swords into Plowshares, ch. 6 (4th ed. 1984). As Claude points out, the principal way in which regional groupings have sought to escape the rule of Article 53 is by acting in the name of the principle of collective self-defense, a position which confirms the argument of this paper.