Modern threats and the United Nations Security Council: no time for complacency (a response to Professor Allen Weiner).

• Author: Benard, Alexander
• Position: Stanford Law Review, vol. 59, p. 415, 2006

INTRODUCTION I. INTERNATIONAL LAW GOVERNING THE USE OF FORCE A. General Prohibition on the Use of Force B. Exceptions to the General Prohibition on the Use of Force 1. Use of force in self-defense 2. Use of force collectively authorized by the Security Council II. PROFESSOR WEINER'S ARGUMENT III. AMERICA CANNOT RELY ON THE SECURITY COUNCIL TO AUTHORIZE THE USE OF FORCE A. International Relations Theory 1. States make collective use-of-force decisions informed by balance of power calculations 2. Targeted states assess the severity of threats differently than non-targeted states 3. Powerful states react to threats differently than weak states 4. Russia and China view sovereignty differently than the United States and its democratic allies B. Recent Examples of Security Council Gridlock 1. North Korea a. UNSCR 1695 b. UNSCR 1718 c. North Korea violates UNSCR 1718 2. Iran a. IAEA and Security Council resolutions b. Russian support for an Iranian nuclear reactor at Bushehr 3. Missile defense in Eastern Europe and East Asia IV. ALTERNATIVES TO COLLECTIVE AUTHORIZATION A. Article 51 Reform B. Security Council Reform 1. Security Council expansion 2. Veto reform C. Making Use-of-Force Decisions Outside of the U.N. CONCLUSION INTRODUCTION

In a recent Article, Stanford Law School Professor Allen Weiner argues that the existing United Nations (U.N.) framework for authorizing the use of force adequately empowers the United States to deal with challenges presented by international terrorism and the proliferation of weapons of mass destruction (WMD). (1) According to Professor Weiner, "the interests of the Permanent Members [of the Security Council (P5)] do not clash with respect to the goals of countering terrorism and WMD proliferation...." (2) Consequently, when the United States needs to use force to respond to either of these threats, it can rely on the U.N. Security Council to provide collective authorization. (3) Professor Weiner thus concludes that there is no need to reform how the use of force is authorized under the U.N. Charter (Charter). (4)

Professor Weiner's argument, if correct, would have important consequences. A world in which the P5 see eye to eye on terrorism and WMD nonproliferation would provide powerful opportunities for the United States to effectively deal with threats emanating from countries like Iran and North Korea, and would also allow for a more integrated approach to non-state actors like Al Qaeda and Hezbollah. Furthermore, the idea that the U.N. is capable of dealing with modern threats without reforming its process for authorizing the use of force has inherent appeal because there is still widespread disagreement on exactly what shape such reform would take and whether executing an agreed upon plan would be politically viable. Any meaningful reform is therefore still a long way from implementation.

Unfortunately, however, Professor Weiner's argument is overly optimistic about the prospects of agreement in the Security Council. China and Russia, both P5 members with veto power in the Security Council, maintain strong economic and security ties with regimes that sponsor terrorism and engage in illegal WMD proliferation. Indeed, one recent bipartisan report on this issue concluded that among the P5, no consensus exists "on what constitutes a threat to international peace and security and [there is] no agreement on how to respond even to those threats on which it does agree." (5) This Note therefore argues that, contrary to Professor Weiner's thesis, the risk of gridlock remains unacceptably high, with today's Security Council almost as divided on critical foreign policy issues as it was during the Cold War. Any argument to the contrary conflicts with both international relations theory and recent Security Council debates surrounding Iran and North Korea, among others. As a result, this Note concludes that scholars and policymakers must continue to think of ways to reform the international law that governs the use of force and proposes a few ideas on what shape such reform could take.

Part II of this Note describes the U.N.'s legal regime that governs the use of force. Part III presents a more detailed review of Professor Weiner's thesis, focusing on his arguments for why the P5 members' views towards "new security threats are essentially in alignment." (6) Part IV establishes that America cannot rely on the Security Council to provide collective authorization, even in the face of terrorist and WMD threats. We counter Professor Weiner's thesis with international relations theory and then offer recent examples of Security Council gridlock, including North Korea, Iran, and missile defense shields in Eastern Europe and East Asia. Part V discusses the merits of several alternatives to collective authorization: Article 51 reform, Security Council reform, and making use-of-force decisions outside the U.N. framework. Finally, Part VI offers a brief conclusion.

1. INTERNATIONAL LAW GOVERNING THE USE OF FORCE

   Determining whether the current international legal regime adequately addresses the threats posed by terrorism and WMD requires an understanding of the existing system. In essence, the Charter prohibits the use of force except in two circumstances: self-defense or collective authorization by the Security Council.

   1. General Prohibition on the Use of Force

      Article 2(4) of the Charter establishes a general prohibition on the use of force: "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." (7)

   2. Exceptions to the General Prohibition on the Use of Force

      1. Use of force in self-defense

         The right to use force in self-defense is articulated in Article 51 of the Charter. (8) Professor Weiner points out several important features of Article 51. (9) Most importantly, "it is a unilateral right," (10) meaning a state requires no approval from the U.N. before making use of its "inherent right" (11) to defend itself. Second, Article 51 permits a member to join other members in collectively responding to a threat. Third, states are entitled to use force only until the Security Council responds to the armed attack. (12) Finally, the right of self-defense arises only if an "armed attack" has occurred. (13) These limitations on the use of force apply only to actions taken outside the Charter's collective security system, which is discussed below.

      2. Use of force collectively authorized by the Security Council

         The second exception to Article 2(4) arises when the Security Council collectively authorizes the use of force. The Security Council has fifteen members: the five permanent members (the P5)--the United States, the United Kingdom, France, Russia, and China--and ten non-permanent members elected for two-year terms. (14) Authorizing the use of force requires the supporting vote of at least nine Security Council members, "including the concurring votes of the [P5] members...." (15) This latter requirement arms each P5 member with a veto that allows it to single-handedly block the Security Council from collectively authorizing other states to use force.

         The Security Council has the "primary responsibility for the maintenance of international peace and security." (16) Pursuant to this authority, it may "determine the existence of any threat to the peace, breach of the peace, or act of aggression" (17) and then "decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." (18) Article 41 permits measures "not involving the use of armed force." (19) If the Security Council considers these non-forcible measures inadequate, it may "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security" under Article 42, including "demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations." (20)

         U.N. members have "agree[d] to accept and carry out the decisions of the Security Council in accordance with the present Charter." (21) If a conflict arises between members' Charter obligations "and their obligations under any other international agreement, their obligations under the present Charter shall prevail." (22)

         Professor Weiner highlights several differences between collective authorization and self-defense. (23) Most important, collective authorization is "not a unilateral right." (24) Since all P5 members may single-handedly block the Security Council from authorizing the use of force, "collective security measures are available only when there is unanimity among the [P5] in favor of such measures." (25) Second, the collective use of force may be exercised without an "armed attack" having occurred in advance. The Security Council, then, can authorize the use of force "merely in the face of 'threats' to international peace and security, including threats that may not yet be imminent. The Security Council, moreover, has largely unfettered power to determine what events and developments constitute such a threat." (26)

2. PROFESSOR WEINER'S ARGUMENT

   Some scholars have argued that Article 51, the Charter's self-defense rule, needs to be updated to reflect the realities of modern warfare. (27) Their rationale is that the threat posed to civilian populations by WMD and terrorism warrants a broadened self-defense rule that permits the use of force even before a threat is imminent. Implicit in this argument is the belief that the Charter's alternative to use of force in self-defense--collective authorization from the Security Council--does not work because competing states are armed with Security Council veto powers.

   Professor Weiner argues that Article 51 reform can be avoided because collective authorization from the Security Council will in most...