The Magazine

To Board or Not to Board?

That is a question to be decided in Washington, not by the U.N. Security Council.

Jul 13, 2009, Vol. 14, No. 40 • By JEREMY RABKIN and MARIO LOYOLA
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

But at the conference, a poorly worded amendment to the prohibition opened the door for future generations of international law scholars to argue that any use of force not specifically sanctioned by the charter would require Security Council authorization. In the form finally adopted as Article 2(4) of the charter, member states agreed "to refrain 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" (our italics tracking the changes). If one thinks any exercise of force threatens the "political independence" of the state at which it is directed, one might read this as a complete prohibition on any and all uses of force--as some commentators have argued ever since. The charter would blur the distinction between legitimate and illegitimate uses of force.

After the new wording was accepted, certain conference delegates insisted on a new clause to make clear that states would still have a right of self-defense. Other delegates objected that this was pointless and silly, that self-defense was an inherent right which could not be impaired by treaty, and that a clarification could do more harm than good. What emerged from the confusion over Article 2(4) was the incoherent Article 51, which enshrines "the inherent right" of self-defense, but only "if an armed attack occurs." There is a lot of disagreement about the meaning of Article 51, but everyone seems to agree that it cannot mean what it actually says. Even Kofi Annan reads into Article 51 the right to preempt an "imminent" attack.

The wording of the charter has made the right of self-defense a rich subject for legal scholars. In the real world, however, the pattern of state practice since 1945 suggests that the inherent right of self-defense remains what it always was: Self-defense is justified when it is necessary and when the action taken is proportional to the need. The blockade of Cuba during the Missile Crisis, like the subsequent U.S. military interventions in Grenada, Panama, and Serbia, were all actions taken without Security Council authorization, on the basis of legal positions that boiled down to necessity and proportionality. In his 2008 AIPAC speech, even Senator Obama unequivocally endorsed Israel's 2007 strike on a nascent Syrian nuclear reactor, an act of preemptive self-defense where no attack was "imminent," but which was clearly both necessary and proportional.

Under the terms of the U.N. Charter, the Security Council can command and can prohibit, and its pronouncements must be obeyed. But the charter does not assign responsibility to the council to "authorize" states to do things. Is it really plausible that Churchill, Stalin, and Truman meant to commit their nations to passivity in the face of serious threats until they had permission from the Security Council to act against them? Is it plausible to think that Russia or China would seek permission--and subject itself to our considered or ill-considered judgment on its proposed actions--in matters it judged vital to its own security? It would be a fantasy to think so. Saddam Hussein had a similar fantasy in 2003--imagining that French actions at the United Nations could save him. It can't be good for anyone to encourage similar fantasies in Pyongyang today.

The Security Council is valuable chiefly as a tool for building political coalitions. When North Korea invaded the South in 1950, the council "recommended" that states come to its defense and that they put their forces under U.S. command. It "authorized" those forces to fly the U.N. flag. It didn't "authorize" anyone to use force because no "authorization" was needed: The defense of South Korea was indisputably legal even according to the most outlandishly restrictive interpretation of Article 51.

The first time that the council actually "authorized" the use of force was with Resolution 678--the Gulf War resolution of 1990--in which it "authorized" all necessary means to expel Saddam from Kuwait. The defense of Kuwait was every bit as legal as the defense of South Korea 40 years earlier. The George H.W. Bush administration needed the resolution not for legal reasons, but for purely political ones--it needed Congress and the Russians to be on board, and the council resolution was both cover and cudgel.