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The Return of Article 42: Enemy of the Good for Collective Security

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The Return of Article 42: Enemy of the Good for Collective Security Pace International Law Review Volume 5 Issue 1 Article 7 January 1993 The Return of Article 42: Enemy of the Good for Collective Security Sarah Rumage Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Sarah Rumage, The Return of Article 42: Enemy of the Good for Collective Security, 5 Pace Int'l L. Rev. 211 (1993) Available at: https://digitalcommons.pace.edu/pilr/vol5/iss1/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. ARTICLE THE RETURN OF ARTICLE 42: ENEMY OF THE GOOD FOR COLLECTIVE SECURITY Sarah Rumaget "The best is the enemy of the good."' "Human beings do not ever make laws; it is the accidents and catastrophes of all kinds happening in every conceivable way, that make laws for us."' t Sarah Rumage, J.D. New York Law School 1982; M.A. History, New York Univer- sity 1993; LL.M. New York University 1993; Member of the Committee on Military Af- fairs and Justice of the Association of the Bar of the City of New York. I am deeply grateful to Professor Thomas M. Franck, not only for his helpful com- ments but for his unparalleled teaching and his many kindnesses to me. I would also like to thank the other "Great Minds" - Anthony D'Amato, Richard Falk, Michael Reis- man, Louis Henkin, Eugene Rostow, Al Rubin, Oscar Schachter, and Burns Weston - who made this article possible, all of whom graciously answered my numerous (and often impertinent) questions at various ASIL meetings - a busy time when they had people far more famous than myself to talk to. I will do my best to emulate their wisdom and great generosity of spirit. Special thanks is also owed to Janet Fong, without whom this article would have disappeared into unsaved computer oblivion long ago, as well as to the library staff at the Hague Academy of International Law, all of whom worked very hard to indulge my outrageous book requests. This article, my first, is dedicated to Professor Myres S. McDougal, my first profes- sor of international law and the most immortal of all the great minds. It is also dedicated to all the men and women who fought in the conflicts discussed herein, especially my late grandfather Dr. William T. Rumage (World War I), and his sons Bill (World War II) my uncle, and Joe (Korea) my father. May all who serve, serve as well, and in causes in which they can believe. Finally, this article is also dedicated to my mother, Nancy S. Rumage, and her late parents, the Most Rev. and Mrs. William A. Simms, who first told me the story of the League of Nations, and of their precious dream for a warless world. 1. VOLTAIRE, Dramatic Arts, in PHILOSOPHICAL DICTIONARY (H.I. Woolf trans., 1945). 2. Plato, Laws IV 709. 1 PACE INT'L LAW REVIEW [Vol. 5:211 INTRODUCTION Should the Persian Gulf Crisis of 1990-91 (hereafter Second Gulf Crisis)' be characterized as a United Nations Security Council "international enforcement action" under Articles 42 through 50, or as an Article 51 "collective self-defense action" subsequently sanctioned by the Security Council? The founding fathers of modern international law, preoccupied with the "just- ness" of war, would not have been unduly concerned with the answer.4 However, in our age, the name of the rule has assumed a fundamental importance, for at least some of its perceived au- 3. Although some scholars refer to it as a "war," it is called a "crisis" here to differ- entiate it from traditional, pre-Charter warfare concepts. The word "crisis" also helps to distinguish it from the recent Iran-Iraq War, which was a formally declared war not conducted under Security Council auspices or under the recognized parameters of self- defense. The "First Gulf Crisis" refers to the 1987-88 involvement of the United States in vessel escort operations in the Persian Gulf during the Iran-Iraq War, including the September 21, 1987 attack on an Iranian Navy ship laying mines. 4. See Theodor Meron, Common Rights of Mankind in Gentili, Grotiusand Suarez, 85 AM. J. INT'L L. 110 (1991); David Kennedy, Primitive Legal Scholarship, 27 HARV. INT'L L.J. 1 (1986). Kennedy explains this issue differentiation: Traditional scholars begin with the sovereign act, assess its status as public or private, and come to some conclusion about the legal sphere which it structures. They might suggest, for example, that all wars publicly declared by a sovereign are just. In contrast, the primitive scholars begin with an idea of justice, grounded in a moral/legal order which defined sovereignty and the capacities of sovereigns. Justice entrusts sovereigns with certain prerogatives, among them the capacity to engage in wars. Private wars, not expressive of sovereign capacity, are unjust. Id. at 9. However, the "primitives" would have had a more critical interest in the issue than nineteenth century jurists, for whom war was "value-neutral and ultimately power- based." Michael Reisman, Criteriafor the Lawful Use of Force in InternationalLaw, 10 YALE J. INT'L L. 279, 281 (1985). See HIDEMI SUGANAMI, THE DoMESTIc ANALOGY AND WORLD ORDER PROPOSALS (1989). In the nineteenth century, "states were free to employ force and go to war for any reason or no reason." Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, para. 200 (June 27) (dissenting opinion of Judge Schwe- bel). A decision to use force was regarded as simply a method of conducting international relations-one choice among many, and it "enjoyed close to a full measure of legitimacy under international law." Edward Gordon, Article 2(4) in Historical Context, 10 YALE J. INT'L L. 271 (1985). Even into World War I, war was not only "legal", but had the effect of suspending the operation of law. Philip Marshall Brown, War and Law, 12 AM. J. INT'L L. 162, 163 (1918). ("Once war has arrived, however, the maxim inter arma silent leges must prevail. War is the abandonment of litigation and argument. It is the negation of law.") It was "[o]nly when the universal liberty to go to war was eliminated," that issues of self-de- fense and collective security could emerge and gain claimants right-holders' status. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 166 (1988). https://digitalcommons.pace.edu/pilr/vol5/iss1/7 2 1993] ARTICLE 42 AND COLLECTIVE SECURITY thority lies in its lineage.' Even the most fondly treasured max- ims can lose their legitimacy once their dubious parentage is laid bare.' Moreover, the choice of characterizing the Second Gulf Cri- sis and its definitive work product, Security Council Resolution 678,1 inevitably gives rise to other issues. Rejecting an Article 42 interpretation, and forcing the Second Gulf Crisis into the clas- sification of an Article 51 action, effectively steers away from any pretense of Security Council oversight, never mind control. Article 51 proponents will tolerate some Security Council med- dling but arduously insist that Article 51 is little more than a license to wage a war of self-defense without de facto Security Council authorization; anything less would be an impermissible surrender of sovereignty.8 5. "To be sure, the source of every rule-its pedigree... is one determinant of how strong its pull to compliance is likely to be. Pedigree, however, is far from being the only indicator of how seriously the rule will be taken, particularly if the rule conflicts with a state's perceived self-interest." Thomas M. Franck, Legitimacy in the InternationalSys- tem, 82 AM. J. INT'L L. 705 (1988). For a more comprehensive and provocative explora- tion of the roles of authority and legitimacy in international law, see THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990). 6. See A. Vaughn Lowe, Do General Rules of InternationalLaw Exist? 9 REV. INT'L STUD. 207, 211 (1983), which questions the legitimacy of, if not "the logical necessity" for, the most basic international norms, such as pacta sunt servanda. See also N. Czaplinski & G. Danilenko, Conflicts of Norms in International Law, 21 NETHERLANDS YB. OF INT'L L. 1, 7 (1990). For an able defense of general rules of international law as encompassed in pacta sunt servanda (and a persuasive argument for their existence), see Hidemi Suganami, A Normative Enquiry in International Relations: The Case of "Pacta Sunt Servanda", 9 REV. INT'L STUD. 35 (1983), as well as Suganami's thoughtful criticisms of Professor Lowe's position, Hidemi Suganami, A. V. Lowe on General Rules of International Law, 10 REV. INT'L STUD. 175 (1984); but see A. Vaughn Lowe, A Reply, 10 REV. INT'L STUD. 183 (1984), for what surely looks like, but cannot be, the last word. 7. See infra notes 194-203 and accompanying text. 8. Thomas M. Franck & Faiza Patel, U.N. Police Action in Lieu of War: "The Old Order Changeth," 85 AM. J. INT'L L. 63, 63-70 (1991). But Schachter's view balances these concerns: There are some who challenge the basic idea that the security of a state-its self- preservation-can and should be subjected to international law. The relation- ship of national security and international law is inevitably complicated and fluid. .but I have accepted a basic premise-namely, that the right of self-de- fense, 'inherent' though it may be, can not be autonomous. To consider it as above or outside the law renders it more probable that force will be used unilaterally and abusively.
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