The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter

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I. INTRODUCTION

On a hot afternoon in July 2001, one of those rare, revealing scenes played out in Washington that seemed to convey, in one memorable moment, more than volumes of explanatory commentary and analysis. Testifying before the Senate Foreign Relations Committee was William J. Perry, Secretary of Defense during the Clinton Administration. His topic was the ABM Treaty. Toward the end of his testimony, almost as an aside, Perry presented a brief proposal. As a backstop to a missile defense system, he suggested the United States should establish a policy "that we will attack the launch sites of any nation that threatens to attack the U.S. with nuclear or biological weapons." (1)

While Perry did not elaborate on the idea, its logic is compelling. An adversary considering the development of such weapons will have less incentive if it is aware that its effort ultimately will come to naught. But implementing the policy would present a slight problem, noted neither by Perry nor by any Senator: it would plainly violate Article 51 of the United Nations Charter, (2) which permits defensive use of force only in response to an armed attack.

Why would senior American officials openly consider such a proposal in complete indifference to its violation of the Charter? Because, I have suggested, international "rules" concerning use of force are no longer regarded as obligatory by states. (3) Between 1945 and 1999, two-thirds of the members of the United Nations--126 states out of 189--fought 291 interstate conflicts in which over 22 million people were killed. (4) This series of conflicts was capped by the Kosovo campaign in which nineteen NATO democracies representing 780 million people flagrantly violated the Charter. The international system has come to subsist in a parallel universe of two systems, one de jure, the other de facto. The de jure system consists of illusory rules that would govern the use of force among states in a platonic world of forms, a world that does not exist. The de facto system consists of actual state practice in the real world, a world in which states weigh costs against benefits in regular disregard of the rules solemnly proclaimed in the all-but-ignored de jure system. The decaying de jure catechism is overly schematized and scholastic, disconnected from state behavior, and unrealistic in its aspirations for state conduct.

The upshot is that the Charter's use-of-force regime has all but collapsed. This includes, most prominently, the restraints of the general rule banning use of force among states, set out in Article 2(4). (5) The same must be said, I argue here, with respect to the supposed restraints of Article 51 limiting the use of force in self-defense. Therefore, I suggest that Article 51, as authoritatively interpreted by the International Court of Justice, cannot guide responsible U.S. policy-makers in the U.S. war against terrorism in Afghanistan or elsewhere. (6)

II. THE ILLOGIC OF ARTICLE 51: AN ANLAYSIS OF THREE COROLLARIES

In one sense, the conclusion that Article 51 has no practical force follows a fortiori from my earlier argument: If there is no authoritative general prohibition of use of force, it makes no sense to consider the breadth of a possible exception. Yet an examination of Article 51 reveals a measure of inconsistency, illogic, and, indeed, incoherence that provides independent grounds for questioning its importuned restraints in decisions concerning use of force. The received interpretation of Article 51 consists in hopelessly unrealistic prescriptions as to how states should behave. Its more concrete sub-rules illustrate why policymakers have come to ignore the Charter's use-of-force regime in fashioning how states behave. In this Part, I discuss three of those subrules.

A. Corollary #I--Providing Weapons and Logistical Support to Terrorists Does Not Constitute an "Armed Attack"

The meaning of the term "armed attack" as used in Article 51 was authoritatively determined by the International Court of Justice in Nicaragua v. …