Remembering Tom Franck: what he taught us about the 'Recourse to Force'.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 2:30 p.m., Friday, March 26, by Rosalyn Higgins of the International Court of Justice, who introduced the panelists: Dan Sarooshi of the University of Oxford; W. Michael Reisman of Yale Law School; Jordan Paust of the University of Houston Law Center; and Fernando Teson of Florida State University College of Law. *

* Fernando Teson did not submit remarks for the Proceedings.

THE RECOURSE TO FORCE BY THE UNITED NATIONS: THE CONTRIBUTIONS OF THOMAS M. FRANCK

I would like to thank the organizing committee, and in particular Leila Sadat, for inviting me to speak about Thomas Franck and his contribution to the use of force by the United Nations. It is a particular personal pleasure that this panel is being chaired by my mentor and friend, Dame Rosalyn Higgins.

Thomas Franck is one of those very few scholars of international law whose work will still be read in 100 years. He helped shape the content of international law, but also contributed much to our understanding of the underlying processes of international law and what normative objectives does it--and should it--strive to attain.

Before I turn to examine only a few--among the very many--contributions that Thomas Franck has made to the UN collective security system, let me first define collective security.

It can be defined in broad terms as a system where a collective measure is taken against a member of a community that has violated certain community-defined values. There are three decision-making elements: first; a determination of the values the system is directed at maintaining; second, a decision as to when a value has been breached; and third, what action should be taken to try and restore observance of the value.

In the case of the United Nations, it is the Charter which confers upon the Security Council all three of these decisions. The traditional view was that the Charter is both the source of the Council's powers to take a collective security response on behalf of all states, but also that the Charter constitutes a source of constraint on the Council.

However, as Franck taught us, this is only the beginning of the discussion. The way in which the Council exercises its Chapter VII powers has normative implications: the practice of the Council may in itself constitute a source of legitimacy and authority for future action.

Franck believed in the United Nations as an institution which has the capacity to maintain international peace and security, but he correctly emphasized that this could not be achieved by a sterile interpretation of the Charter based on the intentions of the drafters. For Franck, the key to the UN achieving its peace and security mandate was its capacity to adapt to the constantly changing circumstances which it faced.

In the first chapter of his book Recourse to Force, Franck sets out the ideal of the Charter when he says that it is directed at ushering in a new global era in which war is forbidden as an instrument of state policy, and that an effective collective security system was to operate by using an international military police force, with the actual use of force being mainly within the exclusive prerogative of the United Nations. (1) Franck then explains that almost immediately the original Charter system was faced with four seismic developments that transformed the word the Cold War; the development of covert operations and meddling by states in civil wars in other countries rather than the traditional military invasions seen in the past; the technological transformation of weaponry and delivery systems which Franck says "tended to make obsolete the Charter's Article 51 provision for ... self-defence"; (2) and a rising global public consciousness of the importance of human freedom and the link between repression of human rights and threats to the peace.

Franck has explained in some detail how the United Nations has responded to each of these developments not through formal amendment of the Charter, but by the practice of the Security Council and General Assembly, which constitutes in effect a change in the way that the Charter was being applied. There is in his work a strong emphasis on giving normative effect to the recorded debates and decisions of the Security Council and General Assembly which treated the Charter not as a static formula, but as a constitutive instrument capable of what Franck calls "organic growth," he characterized the Charter as a "living tree." (3) This approach has a firm basis in decisions of the ICJ: for example, the Reparations for Injuries case (4) where the ICJ employed a teleological approach to interpreting the Charter when it found that the powers of the United Nations are not limited to those expressly stipulated in the Charter but also include implied powers, or those powers which are necessary for the performance by the United Nations of its duties under the Charter. This doctrine of implied powers was of particular importance to the ICJ in the subsequent Certain Expenses of the United Nations case, (5) which found that the Security Council and General Assembly could lawfully establish UN peace-keeping forces despite there being no express provision for, or powers of, the United Nations in relation to UN peacekeeping. This creative approach to Charter interpretation was supported by Franck in the context of the United Nations' collective security system.

I don't need to tell this audience that the failure by the United Nations to conclude agreements under Article 43 of the Charter intended to provide the United Nations with a military force that it could utilize for military enforcement action--led to intense debate as to whether the Security Council was therefore unable to use its military enforcement powers under Article 42 of the Charter.

In Franck's pragmatic view this was certainly not the case: as he says in Recourse to Force, "[W]ere the Charter a static instrument based solely on the expressed intent of the framers, the fact that no Article 43 agreements have ever been made would have put paid to the Charter's vaunted collective military security system. Instead, the adaptive capacity of the charter has functioned dramatically and controversially to fill the vacuum created by Article 43's non-implementation. This was no small feat." (6)

The failure by the Council to conclude Article 43 Agreements with states led to the Security Council delegating its Chapter VII powers to UN member states to carry out military enforcement action on its behalf. The first such case was the Security Council's delegation in Resolutions 82 and 83 of its military enforcement powers to member states to take action against North Korea's invasion past the 38th parallel into South Korea. Subsequently the Cold War ensured this did not happen again until 1991, when in response to Iraq's invasion of Kuwait, the Council famously in Resolution 678 delegated to member states the power to use force against Iraq to achieve a number of specific objectives. Since then, the Security Council has delegated its Chapter VII powers to member states to carry out military enforcement action in a number of other cases, including in the former Yugoslavia, Somalia, Rwanda, and Haiti, to name but a few.

To Franck, this was all part of the necessary "creative adaption of the text of the Charter" that was needed to ensure an effective UN collective security system.

Franck made an important contribution here to our understanding of the limits of this new practice of delegation by the Council of its Chapter VII powers as part of the UN collective security system. He stated in 1992 in an Editorial Comment in the American Journal of International Law that "[t]he legality of actions by any UN organ must be judged by reference to the Charter as a 'constitution' of delegated powers." (7)

This understanding of the UN Charter as a constitution of delegated powers flowed from Franck's deep learning on constitutions, and, in particular, from his early book Comparative Constitutional Process, published in 1968. This approach was to prove important in viewing from a legal perspective the practice of the Council when delegating its Chapter VII powers to member states to carry out military enforcement action.

When you start by viewing the Charter as a constitution of delegated powers, then a number of consequences flow. For example, the general principle of public law, the delegatus non potest delegare maxim, or what is often called the nondelegation doctrine (that is, an entity that has been delegated powers is constrained in its competence to sub-delegate those powers to another person), has application to the exercise by the Security Council of its Chapter VII powers. (8)

I do not have time to examine in detail the application and the restrictive effect of the nondelegation doctrine to the work of the Council, but let me simply point out the consequences of its application. There are four restrictions that constrain the Council's competence to sub-delegate its Chapter VII powers to member states and indeed regional organizations. First, the Council is prohibited from sub-delegating certain of its Chapter VII powers--namely, the Article 39 determination that a threat to, or breach of, the peace has come into existence or has ceased to exist. Second, the Council can only sub-delegate broad powers of discretionary decision-making subject to certain conditions (i.e., the Council must ensure that it retains the right at all times to change the decision of the states to whom it has delegated powers so that it can exercise effective authority and control over the way in which the delegated powers are being exercised). Third, when powers are being sub-delegated, the...

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