To condone or condemn? Regional enforcement actions in the absence of Security Council authorization.

• Author: Hakimi, Monica

ABSTRACT

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second system (here referred to as the operational system), the international community may discreetly tolerate a deviation from the Charter rule depending on the substantive interests at stake, the circumstances surrounding the lack of authorization, and the characteristics of the acting regional arrangement. In the event of a tolerated deviation, however, no actor acknowledges that it is participating in or tolerating a deviation. Instead, international actors resort to a variety of techniques to maintain the integrity of the Charter rule and to suppress acknowledgement of the operational system. Alter demonstrating that the Charter system and the operational system coexist in this area, this Article examines the general parameters of the operational system. It concludes that, so long as the Security Council remains ineffective in satisfying the international community's substantive legal interests, the operational system will--and should--continue to coexist with the Charter system. The application of law in this area, therefore, cannot be fully understood without an appreciation for the role and parameters of the operational system.

TABLE OF CONTENTS I. INTRODUCTION II. THE CHARTER SYSTEM III. REGIONAL ARRANGEMENTS IN ACTION: CASE STUDIES A. Cuba 1962 1. Facts and Context 2. Legal Discussion B. Grenada 1983 1. Facts and Context 2. Legal Discussion C. Liberia 1990-1992 1. Facts and Context 2. Legal Discussion D. Kosovo 1999 1. Facts and Context 2. Legal Analysis IV. THE OPERATIONAL SYSTEM V. CONCLUSION I. INTRODUCTION

International actors have recently looked to regional arrangements to participate more actively in the maintenance of international peace and security. (1) Yet conventional wisdom is that these arrangements may not take enforcement actions unless authorized by the U.N. Security Council. (2) This wisdom is based on the framework for collective security established by the U.N. Charter. The Charter prohibits the use of force against any state, (3) except with that state's consent, (4) in self-defense, (5) or as authorized by the Security Council under Chapter VII. (6) If regional arrangements were exempted from this prohibition and thus permitted to take enforcement actions without Security Council authorization, then the Security Council would not have primacy over the maintenance of international peace and security, and the Charter's controls on the use of force would not have their intended effect. The U.N. Charter thus makes explicit that "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." (7)

This conventional wisdom, however, paints only part of the picture. On a number of occasions since adoption of the U.N. Charter, regional arrangements have taken enforcement actions without obtaining Security Council authorization, s What's more, the international community (9) has repeatedly (but discreetly) acquiesced in such actions. Most legal scholars respond to this practice simply by reiterating the Charter rule (10) and, when presented with an enforcement action that deviates from it, either denouncing the action as unlawful or developing intricate rationalizations that the Charter rule has somehow been satisfied or rendered inapplicable. (11) A few other scholars argue, either in the particular context of regional enforcement actions (12) or as a more general matter of international law, (13) that repeated, tolerated deviations mean that the Charter rule no longer constitutes law.

This Article takes a different approach. It argues that the international practice in this area--by which the international community endorses the Charter rule as if it allows no exceptions but then sometimes tolerates deviations from that rule--reveals the coexistence of two different legal systems. One legal system, set forth in the Charter, establishes that regional arrangements may not take enforcement actions unless authorized by the Security Council. This system is critical to the U.N. framework for collective security and allows no exceptions. Yet the Charter system has not always been workable, and a second, "operational system" 14 has therefore emerged. Under the operational system, major international actors may discreetly tolerate or even condone deviations from the Charter system in order to satisfy broader legal or policy interests. Whether the international community will tolerate a particular deviation ultimately depends on the substantive interests at stake, the circumstances of the procedural deviation, and the characteristics of the acting regional arrangement.

The lawyerly inclination is to ignore the existence of the operational system and to interpret international practice to mean either that all deviations from the Charter system are unlawful or that the deviations establish a new rule supplanting the Charter system. These interpretations are logical, but neither illuminates the application of law in this area. The former interpretation--that all deviations are unlawful--is at odds with the fact that some deviations are condemned by the international community (in which case the Charter system is enforced), while others are tolerated or condoned. This variance in the international response indicates that the international community has enforcement capabilities that it sometimes declines to exercise. Any study of the law in this area must at least acknowledge this discrepancy and should attempt to explain it. The first interpretation performs neither of these functions.

The latter interpretation--that the deviations establish a new rule--fails to explain the continued reliance on the Charter rule. International actors continue to proclaim that the Charter rule constitutes law in this area, and they continue to rely on it as a rule for decisionmaking. Some regional enforcement actions are authorized by the Security Council. (15) Moreover, where a regional arrangement takes an enforcement action without Security Council authorization, international actors sometimes invoke the Charter rule to condemn that action, (16) and other times endorse the Charter rule even as they acquiesce or participate in a deviation. (17) This continued reliance on the Charter rule suggests that it remains in force.

This Article explains these apparent discrepancies in the international practice by reference to the operational system. Under the operational system, international actors may acquiesce in deviations from the Charter system where the deviations satisfy broader legal and policy interests. In these instances, international actors understand the deviation to be "the right thing to do" or "legitimate under the circumstances," despite the inconsistency with the Charter text. At the same time, however, actors recognize that their acquiescence is inconsistent with, and potentially damaging to, the Charter system, which in their view continues to set forth an important legal norm. International actors, therefore, take steps to maintain the integrity of the Charter system and to suppress acknowledgement of the operational system, even in the face of a tolerated deviation.

The result is that the two legal systems coexist: On the one hand, international actors publicly endorse the Charter system and view it as setting forth the rule of decisionmaking. On the other hand, international actors may acquiesce in deviations from the Charter system to satisfy their broader legal and policy interests. Deviations thus may be tolerated or even supported by the very actors responsible for enforcing the Charter system. The critical point, which is central to the relationship between the two systems, is that in the event of a tolerated deviation, no actor acknowledges that it is acquiescing or participating in a deviation. Some of them attempt to justify the action in terms of the Charter system, others act as if the action raises no questions under that system, and still others publicly endorse the Charter system even as they decline to enforce it in the particular case before them.

This Article explains this somewhat paradoxical practice. Part II elaborates on the Charter system and, specifically, on the requirement that regional enforcement actions be authorized by the Security Council. Part II also defines certain critical terms in order to inform the discussions in Parts III and IV. Part III demonstrates that the Charter system and the operational system coexist. It does this by considering four cases in which a regional arrangement used force not in self-defense without obtaining Security Council authorization. In three of the cases, the international community discreetly tolerated or condoned the enforcement actions without acknowledging that it was, in fact, acquiescing in a deviation. Part IV then examines the operational system and argues that, although the system carries certain costs, it will continue to exist so long as the Security Council remains ineffective in satisfying critical legal and policy interests. An appreciation for the role and parameters of the operational system is therefore necessary to understanding the application of law in this area.

2. THE CHARTER SYSTEM

   As mentioned above, the U.N. Charter prohibits the...