Remembering Tom Franck: What He Taught Us about the 'Recourse to Force'
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. …