The UN, NATO, and international law after Kosovo

Human Rights Quarterly

Volumn 22, Issue 1, 2000, Pages 57-89

  O'Connell, Mary Ellen ^a,b,c,d,e,f  

^a OHIO STATE UNIVERSITY   (United States)

^b LONDON SCHOOL OF ECONOMICS   (United Kingdom)

^c UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^d The Earth Institute at Columbia University   (United States)

^e UNIVERSITY OF CINCINNATI   (United States)

^f INDIANA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 7444268028     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2000.0012     Document Type: Article

References (206)

1. See Roger Cohen, NATO Opens Way to Start Bombing in Serb Province, N.Y. TIMES, 13 Oct. 1998, at Al.
2. See Carlotta Gall, NATO Opens Broad Barrage Against Serbs as Clinton Denounces Yugoslav President, N.Y. TIMES, 25 Mar. 1999, at A1. See also Contemporary Practice of the United States (Sean D. Murphy ed.), 93 AM. J. INT'L L. 628 (1999).
3. See Carlotta Gall, NATO Opens Broad Barrage Against Serbs as Clinton Denounces Yugoslav President, N.Y. TIMES, 25 Mar. 1999, at A1. See also Contemporary Practice of the United States (Sean D. Murphy ed.), 93 AM. J. INT'L L. 628 (1999).
4. See infra text accompanying notes 155-56.
5. UN CHARTER, art. 2, ¶ 4, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945).
6. For a discussion of jus cogens in general and Article 2(4) as a particular example, see YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENSE 98-103 (1988).
7. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (27 June) [hereinafter The Nicaragua Case]. For perhaps the best one-volume treatment of the international law governing the use of force, see DINSTEIN, supra note 5, at 102.
8. UN CHARTER, supra note 4, art. 42.
9. Id. art. 51.
10. Article 53 refers to "regional arrangements" and "regional agencies," not "regional security organizations," the term used in this paper. Id. art. 53. No definitions of the Article 53 terms appear in the Charter, nor has either the Security Council or the General Assembly developed a definition. See John F. Murphy, Force and Arms, in UNITED NATIONS LEGAL ORDER 247, 297 (Oscar Schachter & Christopher C. Joyner eds., 1995). As will be reviewed below, some organizations declare themselves Chapter VIII organizations, while others seek to avoid such designation. Yet, there is no sound reason based on textual interpretation and drafting history to leave any organization with an interest in security out of Chapter VIII.
11. UN CHARTER, supra note 4, art. 51.
12. Id.
13. Id. art. 24.
14. The Nicaragua Case, supra note 6.
15. See id. at 103, 195.
16. See id. at 105, 199.
17. See id. at 103, 195.
18. See North Atlantic Treaty, 4 Apr. 1949, 63 Stat. 2241, 34 U.N.T.S. 243 (entered into force 24 Aug. 1949), reprinted in 43 AM. J. INT'L L. 159 (Supp. 1949).
19. The Warsaw Treaty Organization was created by the Treaty of Friendship, Co-operation and Mutual Assistance ("Warsaw Pact"), 14 May 1955, 219 U.N.T.S. 3, 24 (entered into force 6 June 1955).
20. North Atlantic Treaty, supra note 17, art. 5. See also WILLEM VAN EEKELEN, THE SECURITY AGENDA FOR 1996: BACKGROUND AND PROPOSALS 9 (Center for European Policy Studies Paper No. 64, 1995).
21. UN CHARTER, supra note 4, art. 54.
22. Treaty Establishing the Organisation of Eastern Caribbean States, 18 June 1981, art. 8(4), 1338 U.N.T.S. 97, 20 I.L.M. 1166. Article 8(4) of its constituent instrument states: The Defence and Security Committee shall have responsibility for coordinating the efforts of Member States for collective defence and the preservation of peace and security against external aggression and for the development of close ties among the Member States of the Organisation in matters of external defence and security, including measures to combat the activities of mercenaries, operating with or without the support of internal or national elements, in the exercise of the inherent right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations. Id.
23. See JOHN NORTON MOORE, LAW AND THE GRENADA MISSION 47 (1984).
24. Instead, the State Department justified its actions on three different grounds: rescue of nationals, a request from the Organization of Eastern Carribean States, and a request from Grenada's government. See John Quigley, The United States Invasion of Grenada: Stranger than Fiction, 18 U. MIAMI INTER-AM. L. REV. 271 (1987).
25. See The Situation in Grenada, G.A. Res. 3817, U.N. GAOR, 38th Sess., Supp. No. 47, at 19, U.N. Doc. A/38/47 (1983); U.N. Assembly Adopts Measure, "Deeply Deploring" Invasion of Isle, N.Y. TIMES, 3 Nov. 1983, at A21.
26. See The Situation in Grenada, G.A. Res. 3817, U.N. GAOR, 38th Sess., Supp. No. 47, at 19, U.N. Doc. A/38/47 (1983); U.N. Assembly Adopts Measure, "Deeply Deploring" Invasion of Isle, N.Y. TIMES, 3 Nov. 1983, at A21.
27. Treaty on Collective Security ("Tashkent Agreement"), 15 May 1992, printed in Ross. Gazeta, 23 May 1992, available on 〈http://www.acda.gov/factshee/conwpn/ tashkent.htm〉 (visited 22 Nov. 1999). The Tashkent Agreement is described in Vasili Kononenko, Heads of Government Grapple Over CIS Charter in Attempt to Salvage Commonwealth, Russ. PRESS DIG., 13 Nov. 1992. See also Pavel Baev, Peacekeeping and Conflict Management in the CIS, in SECURITY DILEMMAS IN RUSSIA AND EURASIA 209 (Roy Allison & Christopher Bluth eds., 1997).
28. Treaty on Collective Security ("Tashkent Agreement"), 15 May 1992, printed in Ross. Gazeta, 23 May 1992, available on 〈http://www.acda.gov/factshee/conwpn/ tashkent.htm〉 (visited 22 Nov. 1999). The Tashkent Agreement is described in Vasili Kononenko, Heads of Government Grapple Over CIS Charter in Attempt to Salvage Commonwealth, Russ. PRESS DIG., 13 Nov. 1992. See also Pavel Baev, Peacekeeping and Conflict Management in the CIS, in SECURITY DILEMMAS IN RUSSIA AND EURASIA 209 (Roy Allison & Christopher Bluth eds., 1997).
29. Treaty on Collective Security ("Tashkent Agreement"), 15 May 1992, printed in Ross. Gazeta, 23 May 1992, available on 〈http://www.acda.gov/factshee/conwpn/ tashkent.htm〉 (visited 22 Nov. 1999). The Tashkent Agreement is described in Vasili Kononenko, Heads of Government Grapple Over CIS Charter in Attempt to Salvage Commonwealth, Russ. PRESS DIG., 13 Nov. 1992. See also Pavel Baev, Peacekeeping and Conflict Management in the CIS, in SECURITY DILEMMAS IN RUSSIA AND EURASIA 209 (Roy Allison & Christopher Bluth eds., 1997).
30. See Report of the Secretary General on the Situation in Tajikistan, U.N. SCOR, ¶ 26, U.N. Doc. S/1999/514 (1999); Sherman W. Garnett, Russia and Its Borderlands: A Geography of Violence, 27 PARAMETERS 4, 9-11 (1997).
31. See Report of the Secretary General on the Situation in Tajikistan, U.N. SCOR, ¶ 26, U.N. Doc. S/1999/514 (1999); Sherman W. Garnett, Russia and Its Borderlands: A Geography of Violence, 27 PARAMETERS 4, 9-11 (1997).
32. See S.C. Res. 1240, U.N. SCOR, 4004th mtg., U.N. Doc. S/RES/1240 (1999); S.C. Res. 1099, U.N. SCOR, 3752d mtg., U.N. Doc. S/RES/1099 (1997); S.C. Res. 1113, U.N. SCOR, 3788th mtg., U.N. Doc. S/RES/1113 (1997); S.C. Res. 1128, U.N. SCOR, 3816th mtg., U.N. Doc. S/RES/1128 (1997); S.C. Res. 1138, U.N. SCOR, 3833d mtg., U.N. Doc. S/RES/1138 (1997).
33. See Former Soviet Republics: Ethnic Conflicts, Turmoil Persist; Observer Status Granted to CIS, UN MONTHLY CHRON., June 1994, at 36 [hereinafter Former Soviet Republics].
34. See generally UN CHARTER, supra note 4, Ch. VIII).
35. See HILAIRE MCCOURBREY & NIGEL D. WHITE, INTERNATIONAL ORGANIZATIONS AND CIVIL WARS 45 (1995); THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 685 (Bruno Simma ed., 1994) [hereinafter A COMMENTARY]; Michael Akehurst, Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States, 42 BRIT. Y.B. INT'L L. 175 (1967).
36. See HILAIRE MCCOURBREY & NIGEL D. WHITE, INTERNATIONAL ORGANIZATIONS AND CIVIL WARS 45 (1995); THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 685 (Bruno Simma ed., 1994) [hereinafter A COMMENTARY]; Michael Akehurst, Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States, 42 BRIT. Y.B. INT'L L. 175 (1967).
37. See HILAIRE MCCOURBREY & NIGEL D. WHITE, INTERNATIONAL ORGANIZATIONS AND CIVIL WARS 45 (1995); THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 685 (Bruno Simma ed., 1994) [hereinafter A COMMENTARY]; Michael Akehurst, Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States, 42 BRIT. Y.B. INT'L L. 175 (1967).
38. A COMMENTARY, supra note 30, at 686.
39. See Charter of the Organization of American States, 30 Apr. 1948, 2 U.S.T. 2394, 119 U.N.T.S. 3 (entered into force 13 Dec. 1951), reprinted in 33 I.L.M. 981 (1994) [hereinafter OAS Charter).
40. See Inter-American Treaty of Reciprocal Assistance ("Rio Treaty"), 2 Sept. 1947, 62 Stat. 1681, 2 U.N.T.S. 77 (entered into force 3 Dec. 1948), reprinted in 14 I.L.M. 1122 (1975).
41. UN CHARTER, supra note 4, art. 53, ¶ 1.
42. See OAS Charter, supra note 32, art. 1; Former Soviet Republics, supra note 28, at 36; Conference on Security and Co-operation in Europe: Declarations and Decisions from Helsinki Summit, 10 July 1992, printed in 31 I.L.M. 1385 (1992) [hereinafter CSCE Declarations]. See also Englebert Theuermann, Regionale Friedenssicherung im Lichter von Kapitel VIII der Satzung der Vereinten Nationen: Juristische und Politisiche Probleme, in BLAUHELME IN EINER TURBULENTEN WELT 231, 245 (Winrich Kühne ed., 1993);
43. Organization for Security and Co-operation in Europe, Charter for European Security, 18 Nov. 1999, at Part II, ¶ ¶ 7, 11, available on 〈http;//osce.istanbul-summit.org/ charter_for_european_security.htm〉 (visited 22 Nov. 1999) [hereinafter Charter for European Security].
44. OAS Charter, supra note 32, art. 1.
45. See ABRAM CHAYES, THE CUBAN MISSILE CRISIS: INTERNATIONAL CRISES AND THE ROLE OF LAW 66-85 (1974).
46. See Leonard C. Meeker, Defensive Quarantine and the Law, 57 AM. J. INT'L L. 515-24 (1963). Meeker also argued that article 53 was not violated because, in his view, the "enforcement action" referred to in article 53 and which required Security Council authorization was only that action which states would be obligated to take. The OAS authorized the quarantine, but OAS members were not obligated to carry it out. See Id. at 519-22. Meeker's argument did not gain many adherents nor is it supported by the practice of organizations reviewed in this article. Regardless of the voluntary nature of the action, it is agreed that, unless the force is in individual or collective self-defense or with the consent of the relevant parties, only the Security Council may authorize force for other purposes. See infra text accompanying notes 81-84.
47. See Quincy Wright, The Cuban Quarantine, 57 AM. J. INT'L L. 546, 556-59 (1963).
48. According to Murphy, the drafting history of the Charter clearly supports the conclusion that all of the measures cited in Articles 41 and 42 of the Charter, which include economic sanctions, were intended to be the "enforcement action" of Article 53. See Murphy, supra note 9, at 298. See also his discussion of the dispute between the United States and the Soviet Union over the meaning of "enforcement" during the Dominican crisis of 1965. Id. at 299-300. See also PROC. AM. BRANCH INT'L L., ECONOMIC SANCTIONS AND INTERNAL ARMED CONFLICT: SOME SALIENT PROBLEMS 45, 50 (1993-1994).
49. See Peter Malanczuk, Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility, in UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY 197, 236 (Marina Spinedi & Bruno Simma eds., 1987). Examples of economic sanctions prior to Security Council authorization include the European Union, Russian, and US economic sanctions on Yugoslavia before the Security Council ordered such sanctions. See EU Agrees to Arms, Embargo, Sanctions, Against Yugoslavia, STARS AND STRIPES, 22 Mar. 1998. The Organization of American States imposed economic sanctions on Haiti before Security Council authorization. See John M. Goshko, OAS Votes Tough Sanctions on Haiti, Seeks to Send Observer Mission; Junta is Pressured to Resume Talks, WASH. POST, 10 Sept. 1991, at A1. The United States imposed economic sanctions on Iraq immediately in the aftermath of Iraq's invasion of Kuwait, before the UN mandated such sanctions. See Exec. Order No. 12,723, 55 Fed. Reg. 31,805 (1990); Exec. Order No. 12,725, 55 Fed. Reg. 33,091 (1990).
50. See Peter Malanczuk, Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility, in UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY 197, 236 (Marina Spinedi & Bruno Simma eds., 1987). Examples of economic sanctions prior to Security Council authorization include the European Union, Russian, and US economic sanctions on Yugoslavia before the Security Council ordered such sanctions. See EU Agrees to Arms, Embargo, Sanctions, Against Yugoslavia, STARS AND STRIPES, 22 Mar. 1998. The Organization of American States imposed economic sanctions on Haiti before Security Council authorization. See John M. Goshko, OAS Votes Tough Sanctions on Haiti, Seeks to Send Observer Mission; Junta is Pressured to Resume Talks, WASH. POST, 10 Sept. 1991, at A1. The United States imposed economic sanctions on Iraq immediately in the aftermath of Iraq's invasion of Kuwait, before the UN mandated such sanctions. See Exec. Order No. 12,723, 55 Fed. Reg. 31,805 (1990); Exec. Order No. 12,725, 55 Fed. Reg. 33,091 (1990).
51. See Peter Malanczuk, Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility, in UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY 197, 236 (Marina Spinedi & Bruno Simma eds., 1987). Examples of economic sanctions prior to Security Council authorization include the European Union, Russian, and US economic sanctions on Yugoslavia before the Security Council ordered such sanctions. See EU Agrees to Arms, Embargo, Sanctions, Against Yugoslavia, STARS AND STRIPES, 22 Mar. 1998. The Organization of American States imposed economic sanctions on Haiti before Security Council authorization. See John M. Goshko, OAS Votes Tough Sanctions on Haiti, Seeks to Send Observer Mission; Junta is Pressured to Resume Talks, WASH. POST, 10 Sept. 1991, at A1. The United States imposed economic sanctions on Iraq immediately in the aftermath of Iraq's invasion of Kuwait, before the UN mandated such sanctions. See Exec. Order No. 12,723, 55 Fed. Reg. 31,805 (1990); Exec. Order No. 12,725, 55 Fed. Reg. 33,091 (1990).
52. S.C. Res. 841, U.N. SCOR, 3238th mtg., U.N. Doc. S/RES/841 (1993).
53. Id.
54. See CSCE Declarations, supra note 35, at 1392, 1400; Charter for European Security, supra note 35.
55. See Andrea Gioia, The United Nations and Regional Organizations in the Maintenance of Peace and Security, in THE OSCE IN THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY, CONFLICT PREVENTION, CRISIS MANAGEMENT AND PEACEFUL SETTLEMENT OF DISPUTES 191, 204 (Michael Bothe et al. eds., 1997).
56. "Under a U.N. mandate, and with the support of the OSCE, troops from eight European nations this year participated in Operation 'Alba,' the Italian-led humanitarian protection operation in Albania." A European Amphibious Dimension?, JANE'S NAVY INT'L, 3 Sept. 1997, available in 1997 WL 10230269. See also Mike O'Connor, Foreign Troops Protect Albania, But From What?, N.Y. TIMES, 21 Apr. 1997, at A8; Jane Perlez, Italy's Troops in Albania Are Treading on Thin Ice, N.Y. TIMES, 25 Apr. 1997, at A3.
57. "Under a U.N. mandate, and with the support of the OSCE, troops from eight European nations this year participated in Operation 'Alba,' the Italian-led humanitarian protection operation in Albania." A European Amphibious Dimension?, JANE'S NAVY INT'L, 3 Sept. 1997, available in 1997 WL 10230269. See also Mike O'Connor, Foreign Troops Protect Albania, But From What?, N.Y. TIMES, 21 Apr. 1997, at A8; Jane Perlez, Italy's Troops in Albania Are Treading on Thin Ice, N.Y. TIMES, 25 Apr. 1997, at A3.
58. "Under a U.N. mandate, and with the support of the OSCE, troops from eight European nations this year participated in Operation 'Alba,' the Italian-led humanitarian protection operation in Albania." A European Amphibious Dimension?, JANE'S NAVY INT'L, 3 Sept. 1997, available in 1997 WL 10230269. See also Mike O'Connor, Foreign Troops Protect Albania, But From What?, N.Y. TIMES, 21 Apr. 1997, at A8; Jane Perlez, Italy's Troops in Albania Are Treading on Thin Ice, N.Y. TIMES, 25 Apr. 1997, at A3.
59. S.C. Res. 1101, U.N. SCOR, 3758th mtg., U.N. Doc. S/RES/1101 (1997).
60. COMMONWEALTH OF INDEPENDENT STATES, CONCEPT ON PREVENTING AND SETTLING CONFLICTS ON THE TERRITORY OF COMMONWEALTH MEMBER-NATIONS (1996) (on file with the author). See also Bakhityar Tuzmukhamedov, Peacekeeping/Peacemaking Russia/CIS, SEGODNYA (Moscow), 23 Feb. 1996, at 9.
61. COMMONWEALTH OF INDEPENDENT STATES, CONCEPT ON PREVENTING AND SETTLING CONFLICTS ON THE TERRITORY OF COMMONWEALTH MEMBER-NATIONS (1996) (on file with the author). See also Bakhityar Tuzmukhamedov, Peacekeeping/Peacemaking Russia/CIS, SEGODNYA (Moscow), 23 Feb. 1996, at 9.
62. For the distinction between "peacekeeping" and "peace enforcement," see Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992: An Agenda For Peace, U.N. GAOR, 47th Sess., Item 10, U.N. Doc. S/24111-A/47/277 (1992) [hereinafter An Agenda For Peace]; A COMMENTARY, supra note 30, at 565-603; N.D. WHITE, THE UNITED NATIONS AND THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY 50-51 (1990).
63. For the distinction between "peacekeeping" and "peace enforcement," see Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992: An Agenda For Peace, U.N. GAOR, 47th Sess., Item 10, U.N. Doc. S/24111-A/47/277 (1992) [hereinafter An Agenda For Peace]; A COMMENTARY, supra note 30, at 565-603; N.D. WHITE, THE UNITED NATIONS AND THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY 50-51 (1990).
64. See, e.g., S.C. Res. 1036, U.N. SCOR, 3618th mtg., U.N. Doc. S/RES/1036 (1996). The Security Council expressed "its satisfaction with the close cooperation and coordination between UNOMIG [the United Nations Observer Mission in Georgia] and the CIS peace-keeping force . . . commending the contribution both have made to stabilize the situation in the zone of conflict. . . ." Id. (Emphasis added). Cf. S.C. Res. 1089, U.N. SCOR, 3724th mtg., U.N. Doc. S/RES/1089 (1996). The OSCE, rather than the UN, has been active in Moldova. Apparently, the Security Council has not commented on CIS peacekeeping there.
65. See A COMMENTARY, supra note 30, at 699-700.
66. See id. at 701.
67. See David Wippman, Enforcing the Peace: ECOWAS and the Liberian Civil War, in ENFORCING RESTRAINT: COLLECTIVE INTERVENTION IN INTERNAL CONFLICTS 157, 184 (Lori F. Damrosch ed., 1993).
68. "Approval" is used here advisedly. "Authorization" is not intended because in both ECOWAS cases the Security Council did not issue resolutions until after the operations were underway. See generally KARL P. MAGYAR & EARL CONTEH-MORGAN, PEACEKEEPING IN AFRICA, ECOMOG IN LIBERIA (1998); Wippman, supra note 53, at 184-86;
69. Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AM. U. INT'L L. REV. 321, 357 (1998).
70. S.C. Res. 781, U.N. SCOR, 3122d mtg., U.N. Doc. S/RES/781 (1992).
71. See, e.g., Resumption of Aid Convoys to East Bosnian Town Vowed, WASH. POST, 2 Apr. 1993, at A18.
72. S.C. Res. 787, U.N. SCOR, 3137th mtg., U.N. Doc. S/RES/787 (1992).
73. See S.C. Res. 1031, U.N. SCOR, 3607th mtg., U.N. Doc. S/RES/1031 (1995).
74. UN CHARTER, supra note 4, art. 39.
75. Id.
76. See id. arts. 43-49.
77. S.C. Res. 678, U.N. SCOR, 2963d mtg., U.N. Doc. S/RES/678 (1990).
78. See Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AM. J. INT'L L 452, 459 (1991).
79. Article 43(1) provides that "All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities." U.N. CHARTER, supra note 4, art. 43(1).
80. See Carl-August Fleischhauer, Remarks, 85 AM. SOC'Y INT'L L. PROC. 429-31 (1991).
81. For a comprehensive discussion of peacekeeping under international law, see WHITE, supra note 49; A COMMENTARY, supra note 30, at 565-603.
82. See, e.g., Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Ceasefires and the Iraqi Inspection Regime, 93 AM. J. INT'L L. 142 (1999) (explaining that Security Council authorizing practice does not mention shift from Chapter VIII to VII).
83. See Vienna Convention on the Law of Treaties, 23 May 1969, art. 31(3)(b), U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered into force 27 Jan. 1980), reprinted in 8 I.LM. 679 (1969). See also Ian Brownlie, The Decisions of Political Organs of the United Nations and the Rule of Law, in ESSAYS IN HONOUR OF WANG TIEYA 91, 100-02 (Ronald St. John Macdonald ed., 1994); Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM. J. INT'L L. 83, 96 (1993).
84. See Vienna Convention on the Law of Treaties, 23 May 1969, art. 31(3)(b), U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered into force 27 Jan. 1980), reprinted in 8 I.LM. 679 (1969). See also Ian Brownlie, The Decisions of Political Organs of the United Nations and the Rule of Law, in ESSAYS IN HONOUR OF WANG TIEYA 91, 100-02 (Ronald St. John Macdonald ed., 1994); Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM. J. INT'L L. 83, 96 (1993).
85. The extent of support for broad Chapter VII authority is seen when one examines another example: the authorization of force by the Security Council regardless of whether it is acting to restore international peace and security per Chapter VII, Article 39 of the Charter. Many say the Security Council may now authorize force for any humane end, whether it implicates international peace or not. To date, however, this author finds only one example where Article 39 was ignored and force was authorized in a predominately non-international conflict, without the consent of the parties to the conflict. That was the case of Haiti, and even then there was protest. It is difficult to argue, therefore, that the Charter has been modified on this point. See Mary Ellen O'Connell, Regulating the Use of Force in the 21st Century: The Continuing Importance of State Autonomy, 36 COLUM. J. TRANSNAT'L. L. 473 (1997). This problem is not implicated in the Kosovo Conflict given the significant threats to international peace, especially by the cross-border action of the Kosovo Liberation Army. See Section II, infra.
86. See NATO, BI-MNC DIRECTIVE FOR NATO DOCTRINE FOR PEACE SUPPORT OPERATIONS 15(16 Oct. 1998) (on file with author). It is unclear why NATO includes an OSCE authorization possibility in addition to the United Nations. As discussed previously, the OSCE is a Chapter VIII organization and will in all cases seek Security Council authorization before using or authorizing enforcement action. See CSCE Declarations, supra note 35; Charter for European Security, supra note 35. The author suspects it may have something to do with US disenchantment with the United Nations and a wish to remove NATO from under the United Nations sole authority. See infra text accompanying notes 155-57.
87. An Agenda for Peace, supra note 49.
88. See id.
89. See generally, e.g., FERNANDO R. TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY 151 (2d ed. 1997); ANTHONY CLARK AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE: BEYOND THE UN CHARTER PARADIGM (1993).
90. See generally, e.g., FERNANDO R. TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY 151 (2d ed. 1997); ANTHONY CLARK AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE: BEYOND THE UN CHARTER PARADIGM (1993).
91. See John Diamond, On Shaky Ground/No Diplomatic Charter Justifies NATO Air Assaults, Scholars Say, Hous. CHRON., 28 Mar. 1999, at 1.
92. For an argument that there is no right of unauthorized humanitarian intervention, see Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INT'L L. 2 (1999). See also O'Connell, supra note 69, at 477; A COMMENTARY, supra note 30, at 123-24; Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT v. MIGHT: INTERNATIONAL LAW AND THE USE or FORCE 37 (Louis Henkin et al. eds., 1991); Tom Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185 (Lori F. Damrosch & D.J. Scheffer eds., 1991); DINSTEIN, supra note 5, at 89; Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1624-27 (1984).
93. For an argument that there is no right of unauthorized humanitarian intervention, see Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INT'L L. 2 (1999). See also O'Connell, supra note 69, at 477; A COMMENTARY, supra note 30, at 123-24; Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT v. MIGHT: INTERNATIONAL LAW AND THE USE or FORCE 37 (Louis Henkin et al. eds., 1991); Tom Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185 (Lori F. Damrosch & D.J. Scheffer eds., 1991); DINSTEIN, supra note 5, at 89; Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1624-27 (1984).
94. For an argument that there is no right of unauthorized humanitarian intervention, see Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INT'L L. 2 (1999). See also O'Connell, supra note 69, at 477; A COMMENTARY, supra note 30, at 123-24; Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT v. MIGHT: INTERNATIONAL LAW AND THE USE or FORCE 37 (Louis Henkin et al. eds., 1991); Tom Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185 (Lori F. Damrosch & D.J. Scheffer eds., 1991); DINSTEIN, supra note 5, at 89; Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1624-27 (1984).
95. For an argument that there is no right of unauthorized humanitarian intervention, see Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INT'L L. 2 (1999). See also O'Connell, supra note 69, at 477; A COMMENTARY, supra note 30, at 123-24; Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT v. MIGHT: INTERNATIONAL LAW AND THE USE or FORCE 37 (Louis Henkin et al. eds., 1991); Tom Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185 (Lori F. Damrosch & D.J. Scheffer eds., 1991); DINSTEIN, supra note 5, at 89; Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1624-27 (1984).
96. For an argument that there is no right of unauthorized humanitarian intervention, see Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INT'L L. 2 (1999). See also O'Connell, supra note 69, at 477; A COMMENTARY, supra note 30, at 123-24; Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT v. MIGHT: INTERNATIONAL LAW AND THE USE or FORCE 37 (Louis Henkin et al. eds., 1991); Tom Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185 (Lori F. Damrosch & D.J. Scheffer eds., 1991); DINSTEIN, supra note 5, at 89; Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1624-27 (1984).
97. See The Nicaragua Case, supra note 6, at 124-25 & 268.
98. Richard B. Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in LAW AND CIVIL WAR IN THE MODERN WORLD 229, 244-51 (John Norton Moore ed., 1974).
99. See Mary Ellen O'Connell, Continuing Limits on UN Intervention in Civil War, 67 IND. L.J. 903, 904-09 (1992).
100. Id. at 906-07.
101. See id. at 909.
102. See A COMMENTARY, supra note 30, at 257-59.
103. Uniting for Peace, adopted 3 Nov. 1950, G.A. Res. 377 (V), U.N. GAOR, 5th Sess., 302d plen. mtg., ¶ 1, U.N. Doc. A/RES/377 (1950), reprinted in 3 UNITED NATIONS RESOLUTIONS 84 (Dusan J. Djonovich ed., Series I 1973).
104. See DINISTEIN, supra note 5, at 271.
105. Recommending other types of action, such as economic sanctions, has occurred. See Louis B. Sohn, Global Attitudes on the Role of the United Nations in the Maintenance and Restoration of Peace, 26 GA. J. INT'L & COMP. L. 77 (1996).
106. See Report of the International Law Commission on the Work Of Its Forty-Eighth Session, U.N. GAOR, 51st Sess., Supp. No. 10, at 125, 135-38, U.N. Doc. A/51/10 (1996) [hereinafter Draft Articles on State Responsibility]; International Law Commission, Draft Articles on State Responsibility, 37 I.L.M. 440, 450-52 (1998).
107. See Report of the International Law Commission on the Work Of Its Forty-Eighth Session, U.N. GAOR, 51st Sess., Supp. No. 10, at 125, 135-38, U.N. Doc. A/51/10 (1996) [hereinafter Draft Articles on State Responsibility]; International Law Commission, Draft Articles on State Responsibility, 37 I.L.M. 440, 450-52 (1998).
108. See infra text accompanying notes 122-25.
109. Draft Articles on State Responsibility, supra note 85, art. 33(1).
110. Id art. 33(2).
111. Id. art. 32.
112. Lobel & Ratner, supra note 67, at 136 (emphasis added).
113. See David L. Phillips, Comprehensive Peace in the Balkans: The Kosovo Question, 18 HUM. RTS. Q. 821, 822, 826 (1996). See also JULIE A. MERTUS, Kosovo: How MYTHS AND TRUTHS STARTED A WAR (1999); The Balkans, ECONOMIST, 24 Jan. 1998, at 3, 15.
114. See David L. Phillips, Comprehensive Peace in the Balkans: The Kosovo Question, 18 HUM. RTS. Q. 821, 822, 826 (1996). See also JULIE A. MERTUS, Kosovo: How MYTHS AND TRUTHS STARTED A WAR (1999); The Balkans, ECONOMIST, 24 Jan. 1998, at 3, 15.
115. See David L. Phillips, Comprehensive Peace in the Balkans: The Kosovo Question, 18 HUM. RTS. Q. 821, 822, 826 (1996). See also JULIE A. MERTUS, Kosovo: How MYTHS AND TRUTHS STARTED A WAR (1999); The Balkans, ECONOMIST, 24 Jan. 1998, at 3, 15.
116. See Phillips, supra note 91, at 822.
117. Macedonia alone was able to negotiate a completely peaceful separation. See Ian Hunt, Kosovo and Its Borders, GUARDIAN, 13 Apr. 1999, at 10; Justin Brown, Macedonia, CHRISTIAN SCI. MONITOR, 29 May 1998, at 7.
118. Macedonia alone was able to negotiate a completely peaceful separation. See Ian Hunt, Kosovo and Its Borders, GUARDIAN, 13 Apr. 1999, at 10; Justin Brown, Macedonia, CHRISTIAN SCI. MONITOR, 29 May 1998, at 7.
119. See Phillips, supra note 91, at 824.
120. Kosovo is considered holy because it is where the Serbs were defeated by the Turks in 1389. See id. at 822 (citing an Interview with Slobodan Milosevic, President of the Republic of Serbia, in Belgrade, Serbia (7 Dec. 1995)).
121. See Justin Brown, "Rich" Kosovo Costly for Serbs, CHRISTIAN Sci. MONITOR, 28 July 1998, at 8.
122. The author confirmed this first hand as part of NATO's Partnership for Peace outreach program for Albania. See George Katsirdaki, Albania: A Case Study in the Practical Implementation of Partnership for Peace, 46 NATO REV., Summer 1998, at 22. During a visit in January 1998, it was revealed that the Albanian army was practically immobile - it simply had no working vehicles. LTC Robert Applegate, the US defense attaché, remarked that he had personally counted over 100 vehicles donated by the United States which had been wrecked and were no longer usable by the Albanian military. Robert Applegate, Remarks to the NATO/EAPC 12th Expert Team to Albania (including the author), 26 Jan. 1998.
123. The author confirmed this first hand as part of NATO's Partnership for Peace outreach program for Albania. See George Katsirdaki, Albania: A Case Study in the Practical Implementation of Partnership for Peace, 46 NATO REV., Summer 1998, at 22. During a visit in January 1998, it was revealed that the Albanian army was practically immobile - it simply had no working vehicles. LTC Robert Applegate, the US defense attaché, remarked that he had personally counted over 100 vehicles donated by the United States which had been wrecked and were no longer usable by the Albanian military. Robert Applegate, Remarks to the NATO/EAPC 12th Expert Team to Albania (including the author), 26 Jan. 1998.
124. Mark Danner, Endgame in Kosovo, 46 N.Y. REV. BOOKS, 6 May 1999, at 8, 10 ("International leaders respect [Rugova's] reasonableness and steady hand. Furthermore, Rugova's moderation and message of peace are appreciated in western capitals where he is received at high levels." (citing Letter from Senator Bob Dole to Secretary of State Warren Christopher (20 Dec. 1995)).
125. See id.
126. See id. at 11.
127. Id. (quoting NOEL MALCOLM, Kosovo: A SHORT HISTORY 353 (1998)).
128. See Jonathan S. Landay, KOSOVO: Next Balkan Boilover?, CHRISTIAN SCI. MONITOR, 6 Mar. 1998, at 1.
129. See MERTUS, supra note 91, at 308.
130. See Id.
131. Barton Gellman, The Path to Crisis: How the United States and Its Allies Went to War, INT'L HERALD TRIB., 19 April 1999 ,at 2.
132. See Albright und Kinkel für Eingreifen im Kosovo, SÜDDEUTSCHE ZEITUNG, 9 Mar. 1998, at 8. The "Contact Group" consists of the United States, Russia, Germany, Italy, the United Kingdom, and France. See Gellman, supra note 105, at 2.
133. See Landay, supra note 102.
134. S.C. Res. 1160, U.N. SCOR, 3868th mtg, ¶ ¶ 1-2, 8, U.N. Doc. S/RES/1160 (1998).
135. Danner, supra note 98, at 11.
136. See id.; Joseph Fitchett, NATO Approves Kosovo Action Plan But U.S. Officials Complain That Russia is Undermining Them, INT'L HERALD TRIB., 14 Aug. 1998, 1998 WL 4793500.
137. See Secretary of Defense William S. Cohen, Remarks at the Meeting of the World Affairs Council, Los Angeles, 29 June 1998, cited in Lobel & Ratner, supra note 67, at 153 n.119.
138. Simma, supra note 75, at 15.
139. See JANE'S INFORMATION GROUP LTD., FOREIGN REPORT, 9 July 1998. See also Kohl will UN-Mandat für Einsatz im Kosovo, SÜDDEUTSCHE ZEITUNG, 19 June 1998, at 1.
140. See JANE'S INFORMATION GROUP LTD., FOREIGN REPORT, 9 July 1998. See also Kohl will UN-Mandat für Einsatz im Kosovo, SÜDDEUTSCHE ZEITUNG, 19 June 1998, at 1.
141. See John Reed, Holbrooke Meets with NATO Officials in Effort to End Stalemate with Milosevic, WALL ST. J. EUR., 13 Oct. 1998, at 2.
142. MERTUS, supra note 91, at 309.
143. S.C. Res. 1199, U.N. SCOR, 3930th mtg., U.N. Doc. S/RES/1199 (1998).
144. Id. 1 16.
145. See Lobel & Ratner, supra note 67, at 129.
146. See THE NATO HANDBOOK 148 (1998).
147. Cohen, supra note 1.
148. Winrich Kühne, NATO Humanitarian Intervention without a Mandate? Discussing Options for Developing the UN Charter, STIFTUNG WISSENSCHAFT UND POLITIK (SWP) FORSCHUNGSINSTITUT FÜR INTERNATIONALE POLITIK UND SICHERHEIT, Mar. 1999 (English Summary). The political pressures on Fischer were clear - he wanted to show that neither he nor his party would be obstructionist and, therefore, unfit to govern, as was feared by some. See Germany, Fear of Greenery ECONOMIST, 10 Oct. 1998, at 55.
149. Winrich Kühne, NATO Humanitarian Intervention without a Mandate? Discussing Options for Developing the UN Charter, STIFTUNG WISSENSCHAFT UND POLITIK (SWP) FORSCHUNGSINSTITUT FÜR INTERNATIONALE POLITIK UND SICHERHEIT, Mar. 1999 (English Summary). The political pressures on Fischer were clear - he wanted to show that neither he nor his party would be obstructionist and, therefore, unfit to govern, as was feared by some. See Germany, Fear of Greenery ECONOMIST, 10 Oct. 1998, at 55.
150. An indication of this is that NATO placed an unusually long "hold" on the ACTORD-96 hours. See Cohen, supra note 1.
151. See Douglas Waller, Holbrooke's Next Mission, TIME, 26 Oct. 1998, at 59 (photo caption).
152. NATO Secretary General Dr. Javier Solana, Speech at Belgrade, 15 Oct. 1998, available on 〈http://www.nato.int/docu/speecn/1998/s981015a.htm〉 (visited 22 Nov. 1999).
153. See United States Information Service, Transcript: Ambassador Pickering on Kosovo, NATO Threat of Force, available on 〈http://pdq2.usia.gov/scripts/cqcgi.exe/@pdqtest1 .env?CQ_SESSION_KEY=SIWYMOAIPKGE&CQ_QUERY_HANDLE=124111 &CQ_CUR_ DOCUMENT=1&CQ_PDQ_DOCUMENT_VIEW=1&CQSUBMIT=View&CQRETURN=& CQPAGE=1〉 (visited 22 Nov. 1999).
154. See Agreement on the OSCE Kosovo Verification Mission, 16 Oct. 1998, FRY-OSCE, 38 I.L.M. 24, 26 (1999).
155. See Susan Milligan, 1400 Rights Monitors Ordered Out of Kosovo, Group's Exit Raises Likelihood of NATO Air Strikes, Bos. GLOBE, 20 Mar. 1999, at A2.
156. See Gellman, supra note 105.
157. See Is NATO Crossing the Line?: Chat With International Law Professor Hurst Hannum, available on 〈http://www.abcnews.go.com/sections/world/DailyNews/chat_hannurn99 0514.html〉 (visited 22 Nov. 1999).
158. Secretary Albright, NATO: Preparing for the Washington Summit, Prepared Statement for the North Atlantic Council, Brussels, Belgium, in 9 U.S. DEPT. ST. DISPATCH, Dec. 1998, at 1, 3. Presumably she was referring to Security Council authorization by using the term "mandate."
159. Craig R. Whitney, Europe Looks Quizzically at U.S. Proposal for NATO Strategy, N.Y. TIMES, 9 Dec. 1998, at A7.
160. For a discussion of the legality of bombing in Iraq, see Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of Force Against Iraq's Weapons of Mass Destruction, 92 AM. J. INT'L L. 724 (1998); Lobel & Ratner, supra note 67.
161. Guy Dinmore, Villagers Slaughtered in Kosovo Atrocity, WASH. POST, 17 Jan. 1999, at A1. For a detailed account of the numbers killed in the conflict during 1998, see HUMAN RIGHTS WATCH, WORLD REPORT 1999, at 309-15 (1999) (mentioning several hundred fatalities).
162. Guy Dinmore, Villagers Slaughtered in Kosovo Atrocity, WASH. POST, 17 Jan. 1999, at A1. For a detailed account of the numbers killed in the conflict during 1998, see HUMAN RIGHTS WATCH, WORLD REPORT 1999, at 309-15 (1999) (mentioning several hundred fatalities).
163. Jane Perlez, Trickiest Divides Are Among Big Powers at Kosovo Talks, N.Y. TIMES, 11 Feb. 1999, at A8.
164. Rambouillet Accords: Interim Agreement for Peace and Self-Governing in Kosovo, U.N. SCOR, Annex, U.N. Doc. S/1999/648 (1999), available on 〈http://jurist.law.pitt.edu/ ramb.htm〉 (visited 22 Nov. 1999).
165. A full treatment of the conflict in Kosovo would analyze the course of these talks as a study in failed diplomacy. This paper aims only at assessing the legality of use of force by regional security organizations and cannot go into this level of detail.
166. John Donnelly, War in the Balkans, Russia Brings Ray of Hope to Darkened Skies, Hous. CHRON., 30 Mar. 1999, at A12.
167. See Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 AM. J. INT'L L., 470, 474 n.19 (1999).
168. Is NATO Crossing the Line?, supra note 129.
169. See US Department of State Briefing, M2 PRESSWIRE, 24 Mar. 1999, available in 1999 WL 14066148; Contemporary Practice of the United States, supra note 2, at 631.
170. See US Department of State Briefing, M2 PRESSWIRE, 24 Mar. 1999, available in 1999 WL 14066148; Contemporary Practice of the United States, supra note 2, at 631.
171. See Peter Finn, Refugees Want Kosovo Free of Serbs; Prospect of Revenge Complicates Return, WASH. POST, 6 June 1999, at A1.
172. Legality of Use of Force (Yugo. v. U.S.), 1999 I.C.J. Pleadings (Verbatim Record: Request for the indication of provisional measures), ¶ 1.7 (11 May 1999), available on 〈http:// www.icj-cij.org/icjwww/idocket/iyall/iyall_cr/iyall_iyus_icr9924_19990511. html〉 (visited 22 Nov. 1999).
173. This approach is reminiscent of the State Department justification of the US intervention in Panama by "looking at all the circumstances" when none was sufficient on its own to justify the intervention. The Panamanian Revolution: Diplomacy, War and SelfDetermination in Panama (I&II) Self-Determination and Intervention in Panama (I), 84 AM. SOC'Y INT'L L. PROC. 182 (1990).
174. Mais il faut aller plus loin et développer l'idée de l'intervention humanitaire armée. L'OTAN, le Royaume de Belgique en particulier, était tenu d'une véritable obligation d'intervenir pour prévenir une catastrophe humanitaire qui était en course et qui avait été constatée par les résolutions du Conseil de sécurité pour sauvegarder quoi, mais pour sauvegarder des valeurs essentielles qui sont elles aussi érigées au rang de jus cogens. [But we need to go further and develop the idea of armed humanitarian intervention. NATO, and the Kingdom of Belgium in particular, felt obliged to intervene to forestall an ongoing humanitarian catastrophe, acknowledged in Security Council resolutions. To safeguard what? To safeguard, Mr. President, essential values which also rank as jus cogens.) Legality of Use of Force (Yugo. v. Belg.), 1999 I.C.J. Pleadings (Verbatim Record: Request for the indication of provisional measures), at 10 (10 May 1999), available on 〈http://www.icj-cij.org/cijwww/cdocket/cyall/cyall_cr/ cyall_cybe_ccr9915_19990510 .html〉 (visited 22 Nov. 1999).
175. A number of states made brief references to the "exceptional" situation and the need for exceptional measures in Yugoslavia's case against ten NATO members. Germany referred to the NATO operation being a "last resort." See Legality of Use of Force (Yugo. v. F.R.G.), 1999 I.C.J. Pleadings (Verbatim Record: Request for the indication of provisional measures), ¶ 1.3.1 (11 May 1999), available on 〈http://www.icj-cij.org/icj/ idocket/iyall/iyall_cr/iyal_iyge_icr9918_19990511.html〉 (visited 22 Nov. 1999). Counsel for Yugoslavia anticipated that NATO members would claim the defense of necessity. They argued the conditions for its application did not exist. "Moreover a state of necessity may not be invoked by a State as a ground for precluding wrongfulness, if, amongst other things, the international obligation with which the act of the State is not in conformity arises out of a peremptory norm of international law or if the State in question has contributed to the occurrence of the state of necessity."
176. Legality of Use of Force (Yugo. v. U.S. et al.), 1999 I.C.J. Pleadings (Verbatim Record: Request for the indication of provisional measures), at 31 (10 May 1999), available on 〈http:// www.icj-cij.org/icj/idocket/iyall/iyall_cr/iyall_icr9914_19990510.html〉 (visited 22 Nov. 1999) (citation omitted).
177. Belgium argued in the case before the ICJ brought by Yugoslavia, "le Royaume de Belgique est d'avis que l'intervention armée trouve un fondement sans conteste dans les résolutions du Conseil de sécurité. . . . Ces résolutions du Conseil de sécurité sont claires, elles sont basées sur le chapitre VII de la Charte, constate une menace contre la paix et la sécurité internationales. [[T]he Kingdom of Belgium takes the view that the Security Council's resolutions . . . provide an unchallengeable basis for the armed intervention. They are clear, and they are based on Chapter VII of the Charter, under which the Security Council may determine the existence of any threat to international peace and security.]" Legality of Use of Force (Yugo. v. Belg.), supra note 142, at 10.
178. See U.N. SCOR, 54th Sess., 3989th mtg., at 5, U.N. Doc. S/PV.3989 (1999). But, Austria refused to allow NATO to cross its territory or traverse its airspace because of the lack of Security Council authorization. See Charles Trueheart, Europe's Governments Largely Favor Action, WASH. POST, 25 Mar. 1999, at A31.
179. A COMMENTARY, supra note 30, at n.16.
180. Many of these views are expressed in Special Supplement: Opinions on the Legality of NATO's Attack Against the FRY, 33 U.N.L. REP. 112 (1999).
181. Examples of "instant" custom are rare. See MALCOLM SHAW, INTERNATIONAL LAW 62 (1997).
182. See id. at 68.
183. On the compliance inducing power of rules based on the perceived legitimacy of rules, which depends on the clarity of and support for rules, see THOMAS FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990); ROGER FISHER, IMPROVING COMPLIANCE WITH INTERNATIONAL LAW (1981).
184. On the compliance inducing power of rules based on the perceived legitimacy of rules, which depends on the clarity of and support for rules, see THOMAS FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990); ROGER FISHER, IMPROVING COMPLIANCE WITH INTERNATIONAL LAW (1981).
185. The nature of legal obligation is a major topic in international law. For a classic treatment on the role of community support versus sanction in the creation of a legal system, see LOUIS HENKIN, How NATIONS BEHAVE (1979).
186. See Rome Statute of the International Criminal Court, U.N. Diplomatic Conf. of Plenipotentiaries on the Establishment of an Int'l Crim. Ct., Annex II, U.N. Doc. A/ CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998).
187. In addition to the positions of Albright, Cohen, and Talbot cited in the previous section, see Robert E. Hunter, Maximizing NATO, A Relevant Alliance Knows How to Reach, 78 FOR. AFF. 190, 200 (1999) ("The United States has hoped that NATO's first-ever agreement, last October, to use force without a formal UN request will set a precedent, but most Europeans disagree."). Hunter was the US Ambassador to NATO from 1993-1998. See also John Bolton, The Next President and NATO, WASH. TIMES, 21 Jul. 1999, at 17 ("It should be a first priority of a new president to make unmistakenly clear - to NATO and the rest of the world - that we reject Secretary General Kofi Annan's view that the UN is the 'sole legitimate source' in the world for the authorization of force.").
188. In addition to the positions of Albright, Cohen, and Talbot cited in the previous section, see Robert E. Hunter, Maximizing NATO, A Relevant Alliance Knows How to Reach, 78 FOR. AFF. 190, 200 (1999) ("The United States has hoped that NATO's first-ever agreement, last October, to use force without a formal UN request will set a precedent, but most Europeans disagree."). Hunter was the US Ambassador to NATO from 1993-1998. See also John Bolton, The Next President and NATO, WASH. TIMES, 21 Jul. 1999, at 17 ("It should be a first priority of a new president to make unmistakenly clear - to NATO and the rest of the world - that we reject Secretary General Kofi Annan's view that the UN is the 'sole legitimate source' in the world for the authorization of force.").
189. A UN Security Council resolution requires an affirmative vote of nine and no negative vote of a permanent member. If nine of the ten non-permanent members all vote against a resolution, it will not be adopted even with all permanent members voting in favor. See UN CHARTER, supra note 4, art. 27(2).
190. Kühne, supra note 121.
191. See Simma, supra note 75.
192. See id. at 20 (citing in part Jeffrey Laurenti, NATO, the UN, and the Use of Force (background paper prepared for the United Nations Association of U.S.A.(1999)).
193. See S.C. Res. 1264, U.N. SCOR, 4045th mtg., U.N. Doc. S/RES/1264 (1999). In addition, the OSCE has renewed its commitment to UN Charter rules. See Charter for European Security, supra note 35.
194. See IAN BROWNLIE, THE RULE OF LAW IN INTERNATIONAL AFFAIRS: INTERNATIONAL LAW AT THE FIFTIETH ANNIVERSARY OF THE UNITED NATIONS 217-18 (1998).
195. Lobel & Ratner, supra note 67, at 152 (quoting the Russian delegate to the Security Council).
196. See Gary Wills, Bully of the Free World, 78 FOR. AFF. 50, 57 (1999); Judith Miller, As U.S. Relations with U.N. Languish at a Low Point, Is Clinton or Congress to Blame?, N.Y. TIMES, 5 Aug. 1999, at A6.
197. See Gary Wills, Bully of the Free World, 78 FOR. AFF. 50, 57 (1999); Judith Miller, As U.S. Relations with U.N. Languish at a Low Point, Is Clinton or Congress to Blame?, N.Y. TIMES, 5 Aug. 1999, at A6.
198. See Michael J. Glennon, The New Interventionism: The Search for a Just International Law, 78 FOR. AFF. 2 (1999).
199. See Joschka Fischer, Minister of Foreign Affairs of the Federal Republic of Germany, Address at the Fifty-fourth Session of the United Nations General Assembly, Permanent Mission of Germany to the United Nations, 22 Sept. 1999, available on 〈http:// www.germany-info.org/UN/un_state_09_22_99.htm〉 (visited 22 Nov. 1999).
200. See also BARDO FASSBINDER, UN SECURITY COUNCIL REFORM AND THE RIGHT OF VETO: A CONSTITUTIONAL PERSPECTIVE (1998).
201. If NATO or any other regional security organization received authorization to use force, that use of force would still have to meet humanitarian law requirements. In particular the use of force would have to be proportionate and effective for its purpose. Given the ineffectiveness of NATO's use of bombing in Yugoslavia and the apparent knowledge that this would be the case, a separate ground for questioning the legality of NATO's action arises. On the ineffectiveness of bombing, see Tim Butcher & Patrick Bishop, NATO Admits Air Campaign Failed, LONDON DAILY TEL., 22 July 1999, at 20; Gwynne Dyer, The Future of Air Wars - and Just Wars, MINN. STAR TRIB., 4 July 1999, at 17A. On indications that the Clinton administration had prior knowledge that bombing would be ineffective, see Gellman, supra note 105; Rowan Scarborough & Andrew Cain, GAO Cites "Confusion" in Kosovo Policy, WASH. TIMES, 8 April 1999, at A1.
202. If NATO or any other regional security organization received authorization to use force, that use of force would still have to meet humanitarian law requirements. In particular the use of force would have to be proportionate and effective for its purpose. Given the ineffectiveness of NATO's use of bombing in Yugoslavia and the apparent knowledge that this would be the case, a separate ground for questioning the legality of NATO's action arises. On the ineffectiveness of bombing, see Tim Butcher & Patrick Bishop, NATO Admits Air Campaign Failed, LONDON DAILY TEL., 22 July 1999, at 20; Gwynne Dyer, The Future of Air Wars - and Just Wars, MINN. STAR TRIB., 4 July 1999, at 17A. On indications that the Clinton administration had prior knowledge that bombing would be ineffective, see Gellman, supra note 105; Rowan Scarborough & Andrew Cain, GAO Cites "Confusion" in Kosovo Policy, WASH. TIMES, 8 April 1999, at A1.
203. If NATO or any other regional security organization received authorization to use force, that use of force would still have to meet humanitarian law requirements. In particular the use of force would have to be proportionate and effective for its purpose. Given the ineffectiveness of NATO's use of bombing in Yugoslavia and the apparent knowledge that this would be the case, a separate ground for questioning the legality of NATO's action arises. On the ineffectiveness of bombing, see Tim Butcher & Patrick Bishop, NATO Admits Air Campaign Failed, LONDON DAILY TEL., 22 July 1999, at 20; Gwynne Dyer, The Future of Air Wars - and Just Wars, MINN. STAR TRIB., 4 July 1999, at 17A. On indications that the Clinton administration had prior knowledge that bombing would be ineffective, see Gellman, supra note 105; Rowan Scarborough & Andrew Cain, GAO Cites "Confusion" in Kosovo Policy, WASH. TIMES, 8 April 1999, at A1.
204. See Razali Ismail, The United Nations in the Twenty-First Century: Prospects for Reform, 14 MED., CONFLICT & SURVIVAL 97 (1998).
205. See John H. Spencer, The Italian-Ethiopian Dispute and the League of Nations, 31 AM. J. INT'L L 614 (1937).
206. See Lobel & Ratner, supra note 67, at 2. See also Philip Allott, The True Function of Law in the International Community, 5 IND. J. GLOB. L. STUD. 391, 413 (1998).