Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations

I. INTRODUCTION In the wake of its intervention in Iraq, the United States is coming to terms with an international system that may leave it open to serious national security vulnerabilities. International terrorism, rogue nations, and the proliferation of weapons of mass destruction pose the threat of a direct, devastating attack on American civilians. Regardless of one's opinion on the intervention in Iraq, it is clear now that American policymakers must reevaluate their approach to the United Nations as they develop a strategy to defeat these threats. International lawyers must face the question whether the United Nations Charter, which seeks to prohibit the use of force between nations in most instances,1 too strictly constrains the behavior of the United States in responding to terrorism, weapons of mass destruction, and rogue nations. If American policymakers reach a consensus that important national security objectives are suffering because of the United Nations, it will be difficult to justify adherence to the Charter rules on the use of force. Of course, no one seeks American withdrawal from the United Nations. Even if United Nations membership ceased to accrue any significant security benefits for the United States, a complete departure from the UN would be unnecessary and unwise. The United Nations plays useful roles in encouraging and enhancing international cooperation outside of the security area.2 US withdrawal from the UN would likely trigger a spiral into collapse for the organization, as occurred with the League of Nations after World War I. Indeed, American absence from the League was one of several important factors that led to its demise.3 A similar collapse of the United Nations as an international body would not be beneficial for the United States, even compared to the real possibility that for most countries, membership in the UN may become substantially less relevant to their respective security interests.4 The fact that complete US withdrawal is unlikely, however, does not mean the United States must maintain its current relationship with the UN. Nor does it mean that the United States cannot direct the UN to play a role more consistent with its real abilities in the current security context. The US approach of leveling heavy criticism at the UN, its operations, and its members can be supplemented by active steps toward its reform. This essay explores the proper US approach to the UN with regard to the use of force. This essay criticizes the United Nations Charter's standard for the use of force, and outlines a different but still constructive role for the UN in some critical domains. In Part II, we point to serious flaws inherent in the structure of the United Nations Charter rules, particularly the ex ante requirements that nations must satisfy prior to engaging in the use of force. Parts III and IV suggest more modest types of roles that the United Nations could occupy, and how the organization can help promote international security without endangering the security interests of its respective members. II. A PRELIMINARY ANALYSIS OF THE UNITED NATIONS' GOALS AND STRUCTURE Clearly, the United Nations' goals are admirable. Its twin aims are to prevent the use of force between nations except in self-defense, and to promote peace and international security by creating a system of collective self-defense in which UN members-when authorized by the Security Council-resort to the use of force to prevent threats to the international system. The Charter was a response to World War II,5 which catalyzed the organization's development, and which was characterized by sweeping conflicts between major alliances of nation-states.6 In the United States, there was widespread sentiment after the war's end that although American interests must always take precedence, America could not afford to shun cooperation with other major global powers.7 The UN Charter passed overwhelmingly in the Senate by a vote of eighty-nine to two. …