Is there Still a Chance of Revitalizing the United Nations Security Council? By Dr. Micaela Frulli Suggested Citation: Dr. Micaela Frulli, Is there Still a Chance of Revitalizing the United Nations Security Council?, 2 German Law Journal (2001), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=92 [1] As professor Antonio Cassese rightly said in a public speech on September 26, the terrorist attacks on the US not only caused an unbearable number of innocent victims, but they are also disrupting some of the most important international legal categories that seemed to be consolidated until September 11, 2001.(1) [2] The collective security system put into place after World War II was based on the principle of banning the use of force in international relations, as article 2, para.4 of the UN Charter clearly establishes.(2) The prohibition to use (or even to threaten the use of) armed force has also become part of the jus cogens, which means that – or at least it meant until a few days ago – a derogation from this principle is considered impossible. According to the UN Charter and to customary international law, the only exceptions provided to the principle enshrined in Article 2, para. 4 are: a) the use of force made by the Security Council (hereinafter SC) under Article 42, (3) and b) the use of force in individual or collective self-defence under Art. 51 of the Charter. (4) As it is well known, the United Nations system never worked as it was meant to be. Nevertheless, its underlying principles – in particular the prohibition to use force - were never in such danger of being undermined as it is presently the case. [3] Many States often claimed in the past to have used force in self-defence, even when the preconditions for the exercise of the right of self-defence were not present. These States were repeatedly condemned by the international community and their armed actions deemed unlawful.(5) Indeed, since 1990, there has been a general agreement among States regarding the so called "authorization system", according to which the SC, in case of a threat to the peace, breach of the peace or act of aggression, may delegate to member States, acting nationally or through regional organizations or arrangements, the task of using armed force in order to reach a set of different purposes, obviously linked to the maintenance of peace and security.(6) The authorization regime, albeit selective, allowed the SC to maintain a certain degree of control over the operations conducted by the "coalitions of the willing", in light of the fact that authorizations were generally given within a limited time-frame and member States were to report to the SC. Unfortunately, at present, the authorization regime seems to have collapsed. [4] In recent years, after the authorization system already emerged as a concrete option, there were already many more or less evident breaks in the system itself. To give just one example, there was actually little opposition when the US bombed Afghanistan and Sudan in 1998 - clearly as a retaliatory action for the killing of civilians in the bombing of United States embassies in Nairobi and Dar-es-Salaam in 1998 - without any prior SC authorization. Then, in 1999, a deep hole in the system opened with the NATO bombing of Serbia for "humanitarian purposes", once again without any prior authorization by the SC. On that occasion the SC was not able to authorize member States because of the lack of agreement among its permanent members. The SC adopted a few resolutions that some considered an implicit authorization, but that would rather have to be seen as an admission of weakness. Nonetheless, it was widely held that - in light of the allegedly overriding humanitarian motivations – this had been an exceptional case, while it surely should not set a precedent for unauthorized humanitarian – or of any other kind - armed interventions.(7) Now the authorization system seems to have totally cracked down, leaving room for the US to take the lead in the new ‘war' against terrorism under the cover of self-defence. The question now is whether it is still possible to give it a new lease of life. There are compelling reasons why the international community should agree on decisive action into this direction. [5] SC resolution 1368, adopted on 12 September, 2001, recognizes the right of self-defence, but it does not recommend any concrete measure nor does it - implicitly or explicitly - authorize the use of force. What it does is to characterize the acts of terrorism as a threat to international peace and security. It has been observed that this resolution is contradictory because its text acknowledges the right of self-defence (which States may exercise if they are victims of an armed attack) while determining the existence of a threat to the peace and not of an armed attack or act of aggression.(8) While there is certainly truth to this, it is important to keep in mind that comparable inconsistencies are not unprecedented in SC resolutions and that in the past they did not impair action by the Security Council. In the wake of the Iraqi invasion of Kuwait in 1990, the SC immediately adopted measures not involving the use of force (i.e. economic and other sanctions) under Chapter VII, at the same time as affirming the inherent right of individual and collective self-defence.(9) A few months later, the SC authorized member States to use all necessary means, including the use of armed force, to assist Kuwait in repelling Iraqi attack.(10) This is surely not to be taken as a late praise of "Operation Desert Storm" (and even less a praise of the events in its aftermath). On the contrary, that particular operation can be seen as precisely an example to stay away from, as it was conducted on the basis of a blank authorization setting no time-limit and no clear-cut objectives. A recollection of these resolutions was rather intended to remind that it is hopefully not too late for the SC to step in and take control of the situation, even if, on 12 September, it mentioned the inherent right to self-defense of all member States. [6] A prompt return to the authority of the SC would, indeed, be the only way to stick to the general legal framework that has governed international relations in the past fifty years. One must fear that, if the US unilaterally come to the decision to use armed force on a large scale without a SC authorization, this would clearly mean a step backwards, a move back towards the times when the use of force was allowed as a lawful means for protecting States' interests. We should make an effort (not only as lawyers, but as European citizens by exercising pressure on our governments) to say out loud and clearly, that the unilateral use of force against Afghanistan or against any other states supposedly supporting terrorist organizations (but not directly involved in or responsible for https://doi.org/10.1017/S2071832200004004 Published online by Cambridge University Press