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The UN, NATO, and International Law After Kosovo

From: Human Rights Quarterly
Volume 22, Number 1, February 2000
pp. 57-89 | 10.1353/hrq.2000.0012

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Human Rights Quarterly 22.1 (2000) 57-89

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The UN, NATO, and International Law After Kosovo

Mary Ellen O'Connell

NATO's decision on 13 October 1998 to use force in Yugoslavia 1 and its subsequent use of force beginning on 24 March 1999 2 were inconsistent with both the explicit terms of the United Nations Charter and Security Council practice. Most of NATO's member states have argued that the situation was exceptional and should have no bearing on the future need for Security Council authorization. Not so the United States; US officials have not spoken of an exception. Several high-ranking officials of the Clinton Administration have stated that they do not recognize the necessity for Security Council authorization when NATO takes enforcement action. 3

This article examines these contrasting positions and their implications [End Page 57] for the future. It looks first at the international law in place prior to 13 October 1998. It then considers the legally-significant events occurring between March 1998 and March 1999 and their impact on the requirement for Security Council authorization. The article concludes that NATO is still required to have Security Council authorization. At the same time, however, solutions must be found to the United States justifiable criticism of the Council.

I. The Rules Before Kosovo

Any discussion of the rules governing the use of force by any entity must start with the first principle of the law in this area, namely Chapter I, Article 2(4) of the United Nations Charter. 4 Article 2(4) generally prohibits the use of force in international relations. The general prohibition is binding not only on members of the United Nations, but on all subjects of international law as a peremptory or higher legal norm. 5 To respond to violations of this norm, however, the Charter permits uses of force in three instances. 6 In Chapter VII, Article 42, the Security Council "may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." 7 Also in Chapter VII, Article 51, the Charter permits the use of force in individual or collective self-defense. 8 Finally, Chapter VIII, Article 53, permits the Security Council to use regional arrangements as appropriate or to authorize enforcement action by such arrangements. 9

Each of these three provisions has played a role in uses of force by regional security organizations, such as NATO, since the adoption of the [End Page 58] Charter in 1945. Each will be discussed below to provide an overview of the rules governing the use of force by regional security organizations. This article also includes a brief discussion of other proposed exceptions to the basic prohibition on force, in particular, the claimed right of humanitarian intervention, the Uniting for Peace Resolution, and the defense of necessity, much discussed during the Kosovo conflict.

A. Collective Self-Defense

The right to use force in collective self-defense in face of a violation of Article 2(4) is set out in Article 51:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. 10

The right to use force in collective self-defense is clearly limited by the terms of Article 51. The right continues "until the Security Council has taken measures. . . ." 11 This limitation coordinates Article 51 with the role conferred on the Security Council in Article 24 of the Charter:

In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 12

The International Court of Justice decision in the Nicaragua Case 13 clarifies other parameters of collective self-defense. It may only be exercised when an actual armed attack is made on a victim...