A Broken UN Security Council is Changing International Law: Part 2
May 3, 2022 by Digital Editor
By Justin Malzac
To read Part I of this blog series examining the ways in which the UN Security Council has failed to meet the challenges it was founded to address, click here.
The failure of the UN Security Council has influenced the evolution of treaty interpretation and customary law, including an increasing number of states opting to use force in ways not envisioned by the drafters of the Charter. Some have recently argued that the United States’ “global war on terror has weakened and warped the multilateral system for managing international peace and security” including norms on the use of force. While it is true that interpretations on the use of force have shifted significantly since 9/11, what this view fails to recognize is that the global system for managing international peace, and the norms supporting it, was broken almost as soon as it was enacted.
International Law Affected by Council Weakness
During the ratification of the UN Charter, even the United States supported the idea that the Security Council was the only entity that could use force outside of self-defense against an armed attack. Moreover, in Chapter VI the Charter, the Council is called to respond, not only to the actual outbreak of armed conflict, but to any dispute “which is likely to endanger the maintenance of international peace and security”.
Early on in Charter history, President Truman and Secretary of State Acheson were adamant that the UN represented the correct mechanism for global security. Acheson’s much maligned “Asia defense perimeter” comments did not reflect a policy decision to refrain from defending Korea but rather a recognition of the UN’s responsibility to defend free states as opposed to the United States’ responsibility for those territories it specifically occupied (e.g., Japan). When South Korea was attacked in 1950, the United States went to the UN Security Council to get authorization prior to deploying military forces. Seeing this from the beginning as a multinational UN action, Truman even proposed sending Nationalist Chinese troops into the fray, since they were, at the time, a permanent member of the Security Council.
It is well known that the only reason Security Council Resolution 82 passed was because the Soviet delegate was absent. This reality only proved the institution was off to a rocky start, and this was arguably one of the only times when the mechanisms of the UN Charter relating to the use of force worked as designed.
Even in the late 1960s, the United States still held firm to the primacy of the UN. During the military tensions that eventually led to the 1967 Arab–Israeli War, the Johnson administration advised Israel against a preemptive strike, arguing that “any Israeli unilateral action could be justified only after all peaceful measures had been exhausted.” (Michael Oren, Six Days of War, at 87). But one could already see US opinion shifting. While recognizing the impotence of the UN, due to the Russian veto, US officials nonetheless demanded that international options be attempted.
States have since gotten around a broken Security Council by reinterpreting the rules for the use of force to enable unilateral action. Chief among them is the United States, which has, since at least 2012, offered the opinion that any “illegal use of force” allows for self-defense. This interpretation contradicts what the U.S. delegates offered during the drafting of the Charter. In discussions around the text of Article 51 and self-defense, one U.S. delegate had suggested “the original United States amendment would be limited to armed attack and would thus limit freedom of action which states could take.”
Moreover, the United States now advocates for anticipatory self-defense (often citing the Carolina Affair of 1837, which has arguably been superseded by the willful adoption of the UN Charter and its severe restrictions on the use of force). Several states now also support the “unwilling and unable” doctrine—that a state may use force in self-defense against non-state actors located in the territory of a second state, if that state is unwilling or unable to take action itself. Neither of these are supported by the original intent of the Charter. Indeed, U.S. delegates had agreed “[they] did not want exercised the right of self-defense before an armed attack had occurred.” This expansion of self-defense has also worked against the United States, with Iran threatening the use of force in response to what they claim to be threats from the United States (which would be a violation of Article 2(4) but not sufficient to trigger self-defense). What’s good for the goose, as they say…
A similar expansion of the use of force by states, outside of Charter mechanisms, has emerged in the concept of humanitarian intervention. The failure of the Council to act forcefully in response to genocide across the world, such as the deaths of over 300,000 people in Darfur, has forced the international community to seek other legal justifications for intervention. As Professor Robert Kolb of Geneva University has noted, an action by a state is only a “humanitarian intervention” if it is otherwise unlawful, i.e, not in self-defense of one’s own citizens and not rightfully authorized by the Council. The doctrine of humanitarian intervention seeks to provide legal authority where none otherwise exists.
Professor Kolb also notes that, though there is a historical basis for humanitarian intervention, this right was consciously surrendered by states when they ratified the UN Charter with its strict limits on all uses of force regardless of prior custom. However, this has created a conundrum for states who endeavor to protect human rights, or as one jurist put it (as quoted by Kolb): “must the international community stand idly by while millions of human beings are being massacred just because in the Security Council a permanent member holds its protective hand over the culprit?”
Perhaps the clearest example of this was during the NATO air campaign in Kosovo. NATO members agreed that the Security Council had not authorized the use of force, nor was there justification for invoking Article 51 for self-defense. In order to get around the lack of Council authorization, which would be highly unlikely, NATO created an ad hoc legal argument for action. The stated intent was not to create new doctrine or dilute the constraints on the use of force. Even so, one cannot ignore the evolution of humanitarian intervention doctrine flowing from this specific reference point in history, which is often cited in discussions on the topic in a positive light.
No Easy Fix
Harry Truman and Dean Acheson were true believers in the United Nations. The fact that we now commonly misunderstand Acheson’s statements, and their impact, only reveals how far our perspective of the role of the UN has shifted. It is not wrong to say that the United States has been a primary driver in shifting interpretations of the rules for the use of force, but it is an incomplete picture. One can only bridge the gap between adamant U.S. support for the restrictive interpretation of the UN Charter at ratification and the permissive view of force today by recognizing the failure of the Council to provide for global security as designed. This failure has made the breakdown of norms inevitable.
The flaws of the Security Council are rooted in its organization and structure, and they are not easily repaired. Solutions have been proposed, including increasing membership, removing the veto, and imposing a “duty to decide” on the Council. Most recently, there is momentum to enact some sort of General Assembly review whenever a veto is cast. Ultimately, a system that hampers those who seek to enforce global norms while protecting rogue states who commit criminal acts is unsustainable.
It is worth asking whether the Council, as the primary mechanism for global security, needs to be saved. States have always filled the role intended for the Council through customary international law. What was once verboten in regards to self-defense is now common. In an age of rising grey zone activity and malicious actions that fall below the threshold of armed attack, it is unreasonable to expect states to stand passively by as they are increasingly harassed and injured. But it is vital that we recognize the impact a failed Security Council has had on the evolution of international law.
It is also important to accept how recent developments are a double-edged sword. Clearly states must be able to defend themselves in light of Council failure to maintain global security, but this can quickly go from skirting the lines to simply ignoring the Council outright. Worse, the increasing divergence of state practice from the original intent of the UN Charter risks undermining, if not destroying, the sustained global order and relative peace achieved in the last century.
The best option is to fix the cracked foundation before it crumbles, but that first requires a full recognition of the damage already done and the unlikely surrender of the great powers to the whims of the rest of the world.
Justin Malzac is the Senior Paralegal at a DOD joint command and has worked in the field of National Security Law for a decade. His work has been published by the Harvard National Security Journal, the American University National Security Law Brief, and several other publications. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Department of Defense or the United States Government. The author would like to graciously thank Lieutenant Colonel Emily Roman and Major Rafiel Warfield for their feedback on this piece.