Academic journal article
By Benard, Alexander; Leaf, Paul J.
Stanford Law Review , Vol. 62, No. 5
Nuclear proliferation--Laws, regulations and rules
Weapons of mass destruction--Laws, regulations and rules
Antiterrorism measures--Laws, regulations and rules
Aggression (International law)--Laws, regulations and rules
Weiner, Allen--Criticism and interpretation
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
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. …