When NATO initiated a bombing campaign against Yugoslavia in 1999, the challenge to the authority of the United Nations Security Council could not have been more dramatic. The organization set up "to save succeeding generations from the scourge of war"1 was evaded, as NATO countries sent their aircraft over Yugoslavia. Moreover, when one member of the Security Council asked the Council to condemn the bombing campaign, only two other members voted with it, even though the NATO action was all but impossible to square with the U.N. Charter.2 The marginalization of the Security Council in the Kosovo conflict has led to a re-appraisal of that body's role.
An examination of recent practice of the Security Council may assist in explaining why a major military action like that in Kosovo could be initiated without the Security Council's involvement. In the scheme created after World War II to maintain world peace4 the U. N. Security Council was given a central role.3 However, during the years of the Cold War, the Security Council was largely unable to deal with threats to the peace' because of the superpower standoff.
After the demise of the Soviet Union, the Security Council began to function in new directions.5 The Council was not, however, able to act in the even-handed fashion contemplated by the U.N. Charter.6 Freed from the constraints of superpower rivalry, the Council fell under the sway of the surviving superpower: the United States. The United States came to occupy such a commanding position in the Security Council as to threaten the Council's ability to cope with its Charter-prescribed functions. The United States pressured the Council into taking actions whose conformity with Charter principles was doubtful. In instances in which the United States was unable to convince the Council to act as it desired, the United States acted unilaterally.
Four categories of situations have arisen that reflect the Security Council's inability to fulfill its functions properly as a result of United States dominance. First, in "threat to the peace"7 situations, the United States has asserted dubious facts before the Security Council, and the Council has acted as if those facts were true, without investigation. Second, the United States has at several times acted purportedly on the basis of powers granted by the Security Council, but in fact outside any powers actually granted. Third, the United States has convinced the Security Council on several occasions to authorize it to take military action unilaterally rather than under Council control. Fourth, the United States has, by use of its veto power, blocked the Security Council from dealing with the United Nations' longest standing territorial dispute, that over Israel-Palestine.
This article will examine in turn these four categories of situations in the recent practice of the Security Council. On the basis of this examination, the article questions whether the Security Council is properly fulfilling its function of preserving the peace.
II. FAILURE TO INVESTIGATE FACTS
During the Cold War, if the United States asserted facts before the Security Council, the Soviet delegate was likely to take issue and to seek proof from the United States. On more than one occasion in which the United States took military action and asserted facts before the Security Council in justification, the facts were not as it asserted. The United States' actions in Guatemala (1954), Cuba (1961), the Dominican Republic (1965), Grenada ( 1983), and Panama (1989) did not conform to its assertions about the reasons for its actions, casting doubt on the legality of the actions.8 The Security Council did not always inquire into the facts in more than a perfunctory fashion, but, at Soviet insistence, a public airing of the facts typically took place at a Security Council session.
Referring to these episodes, one recent analyst has written, "If the Cold War has indeed ended, the international legal disputes that were such an important part of that war may also have come to a close. …