The Jus ad Bellum in the age of weapons of mass destruction

• Author: Thomas M. Franck
• Position: Professor Emeritus, New York University School of Law
• Pages: 248-254

Page 248

Article 2(4) of the United Nations Charter says that "Ail members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any way inconsistent with the Purposes of the United Nations."

To this there are two exceptions. First, Article 51 permits states an armed response "if an armed attack occurs against: a Member of the United Nations" and, second, under the terms of Article 39, states may use force if the Security Council determines "the existence of any threat to the peace, breach of the peace, or act of aggression."

That's it. No recourse to force is allowed, unless there has been an armed attack or the Security Council has agreed to respond to a threat to the peace. How responsive is that law to contemporary realities?

That depends on the way we see "the real" To scofflaws, the reality is simple. In an era of weapons of mass destruction it is unrealistic to expect any nation to abdicate its sovereign prerogative to act to preempt any threat from anyone.

But that isn't the reality of the vast majority of the world's population. Their reality is that the abandonment of international law and institutions, and the return to unbridled sovereignty, spells a looming human rights catastrophe.

In Word War I, ten million people died. In World War II, with advances in both fanaticism and technology, sixty million died.² In an age of weapons of mass destruction, the threat of war can now be seen in terms of fatal casualties potentially measurable in the hundreds of millions.

In an effort to fulfill its central mission, the UN. Charter establishes as the Organization's first Purpose (Art, 1(1)) "To maintain international peace and security, and to that end: to take effective collective measures...." In 1945, the design of this new system for the prevention of war was clear: nations were to renounce the "threat or use of force" except when actually attacked. But—and it's a big but--in return, the members of the U.N., upon a determination of "the existence ofPage 249a threat to the peace, breach of the peace, or act of aggression" were to take the collective measures necessary "to maintain or restore international peace and security". These measures were to be real, and could include "action by air, sea, or land forces" if less draconian measures fail to maintain or restore peace (Art. 42),

This, then, was the design of a radical new regime for collective measures that would make unilateral state recourse to force unnecessary, unjustifiable, immoral and illegal. Right from its inception, however, the design evinced serious flaws. In recent years, these flaws have become life-threatening: not just to the new system itself, but to millions of persons who have seen the promise of a pacific life become a chimera.

These failures of the system have been exaggerated by critics, and the successes have been excessively discounted. In the words of Canada's longtime Ambassador to the U.N., Paul Heinbecker:

The UN gave birth to a body of international law that stigmatized aggression and created a strong norm against it. Although the Cold War saw international law breached by both sides, the norm against aggression was much more respected than not, as was the legal force of the Charter. There were fewer interstate wars in the second half of the twentieth century than in the first half, despite a nearly four-fold increase in the number of states. While the Cold War destroyed the postwar consensus, hobbling the security vocation of the UN for many years, and the prevention of World War III owed at least as much to nuclear deterrence and collective defence through NATO, there is no doubt that the world would have been a much bloodier place in the last fifty years without the world body³

Still, the flaws can no longer be ignored. So let us examine them.

Collective security under U,N. auspices has been exposed as a weak reed upon which to rely in return for states' renunciation of the right to use force unilaterally to protect their security and advance their national interest. It is a particularly weak reed upon which to base a human right to be protected from abuses, whether from others or from one's own rulers.

Weaknesses of U N. Collective Security

The first flaw to appear in the Charter's design was the failure of member states to give effect to Article 43, by which they had undertaken "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."

That the members failed in their obligation to give the Security Council stand-Page 250by military forces was partly obscured by the Cold War, which, anyway, would have made it virtually impossible to deploy any such forces, among other things by reason of the frequent recourse to the veto by the Soviet Union. Such recurrent use of the veto by one or more of the permanent members of the Council, then and now, illustrates the second flaw in the Charter's design which, understandably, makes nations very...