The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

4 Treaty Constraints: The United Nations Charter and War Powers

Jane E. Stromseth

The division of war powers between Congress and the President has never been free of ambiguity or tension. The Constitution gives Congress the power to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the regulation of the armed forces. The President, on the other hand, is the Commander in Chief of U.S. armed forces. Most scholars agree that the framers sought to strike a balance: the President alone could not commence "war," but he could use force to "repel sudden attacks" on the United States or its armed forces.1 Disagreement rages, however, over what the sparse words of the Constitution should mean today, when wars are hardly ever "declared" in advance, U.S. forces are stationed on foreign soil on a semi-permanent basis, and the country's security interests are intertwined with those of other states in an increasingly interdependent international system.

Any adequate contemporary theory of the division of war powers between Congress and the President must take account of the growing role of the United Nations Security Council in responding to threats to international peace and security. In 1945, the drafters of the U.N. Charter responded to the devastation of World War II by seeking to limit the unilateral use of force as a method for resolving international disputes, and by creating a mechanism to prevent war and resolve disputes peacefully. If threats to the peace or acts of aggression did occur, however, the U.N. Security Council could recommend or decide to take action, including imposing economic and diplomatic sanctions. If necessary, it could authorize collective military enforcement action to restore international peace and seculity. 2

To make U.N. enforcement action possible, the members of the United Nations pledged in Article 43 of the Charter "to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces . . . necessary for the purpose of maintaining international peace and security." 3 These special agreements would be negotiated "as soon as possible" and would be subject to ratification by member states "in accordance with their respective constitutional

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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