Document Type

Article

Publication Title

Ius Gentium

Publication Date

Spring 2004

Abstract

The controversy between the United Nations Security Council and the "Coalition of the Willing" (led by the United States and the United Kingdom) over the use of force in Iraq underscores challenges to the central role of the Security Council in authorizing the use of force that have taken place since the U. N. Charter was written in 1945. That is, there has been a long and continuing tension between the words of the United Nations Charter and the practice of regional organizations and regional arrangements that test some of the fundamental notions about the collective security system known since the creation of the United Nations. Under the words of the United Nations Charter, the Security council has primary responsibility to maintain international peace and security and to make decisions about the use of force in enforcement actions. The Iraq crisis may well be the most recent and controversial challenge to the role of the Security Council; however, it has not been the only one.

The present Iraq controversy over the role of the Security Council presents an opportunity consider other occasions over the years that have challenged Security Council authority and the cumulative effect of those challenges. Over the past half century, regional organizations, not the Security Council, have been the primary users of force in enforcement actions. This dichotomy between the words and reality has led some to assert those uses of force violate the U.N. Charter and that Security Council authorization is needed for the use of force by regional organizations, and others to suggest that the Security Council has simploy become irrelevant.

This article explores whether either characterization is any longer accurate or appropriate. That is, does subsequent regional organization behavior and Security Council inaction or after-the-fact approval toward that behavior indicate that perhaps the meaning of the Charter has changed? Does the Charter no longer man that the Security Council has monopoly power over enforcement actions? May regional organizations lawfully taken enforcement actions independently of the Security Council -- except perhaps in the very narrow circumstance where the Security Council by resolution explicitly denies authorization to a regional organization prior to an enforcement action? If so, what becomes of the fundamental goal of accountability to the global collective in the use of force that lies behind the Charter words? If regional organizations may never lawfully take enforcement action without Security Council authorization, and if the Security Council does not act, then a strong incentive arises in regional organizations to find other legal grounds for the use of force, especially where a regional organization feels compelled to act. This, in turn, may unacceptably stretch other legal doctrines enlisted to justify non-enforcement-action-use-of-force to unacceptable limits, for example in robust peacekeeping, in anticipatory self-defense, and in humanitarian intervention.

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