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The Two Outstanding Examples Where the Security Council Was Bypassed

Kosovo in 1999 and Iraq in 2003 are the two outstanding examples where the Security Council was bypassed, but they are not the only ones. The United States, under the Clinton administration, sent troops to Haiti in 1994, and in 1998 it bombarded Iraq in Operation Desert Fox. Interventions in Panama and in Grenada also took place without a recourse to the Security Council. This reflects the permanent attitude of the United States, under whatever administration and at whatever epoch, to act with the Security Council where and when possible, but to bypass the Council when necessary i.e. when American interests are involved. President George W. Bush recently even went a step further when, in his State of the Union speech of 20 January 2004 he stated: “America will never seek a permission slip to defend the security of our country.”

This brings us to the core of the question concerning the validity and the relevance of public international law in this new era after the end of the cold war and in the aftermath of 9/11. It is my firm conviction that public international law, as codified during the last sixty years, still reflects the practice and the opinio iuris of the international community. Recent events, how dramatic and shocking they may be, do not affect the traditional rules of international cooperation. The provisions of the Declaration of Principles of International Law concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations remain valid, although this document reflects, to a large extent, international law as it existed during the cold war. The same holds good for the principles enshrined in the 1975 Helsinki Declaration.These documents may perhaps reflect soft international law, although the 1970 Declaration is to be considered as an authentic interpretation of the Principles of the United Nations Charter. The Helsinki Declaration and the documents adopted at the subsequent follow-up conferences still reflect the basic principles and values as between the extended memberschip of the Organization on Security and Cooperation in Europe. Likewise, the international law concerning fundamental interstate relations such as: the law on diplomatic and consular relations, the law of the sea, the law of treaties, etc. do not seem to be affected by the recent events. One could, however, imagine situations where those rules may be violated, denunciated, suspended or otherwise terminated. But existing international law is perfectly capable of dealing with those situations on the basis of existing principles of treaty law, the law of state responsibility, or other general principles. It seems, therefore, that the ongoing debate on the changing nature of the international legal order can be summarized under two major items i.e. the role of the Security Council and the international law on the use of force.

In subscribing to the Charter of the United Nations, Member States recognized, acts on behalf of all of them. The Member States also agreed to carry out decisions of the Security Council. Both the action by the Council and its decisions imply that these have been validly taken in accordance with the Charter. The Charter contains a few clear provisions on procedural requirements that must be fulfilled in order for the action and the decisions to be valid. One of these requirements is that actions and decisions on substantive issues require the cooperation of at least nine members of the Council, including the five permanent members. The possibility of a veto by a permanent member is, therefore, a constitutionally guaranteed right. The immediate effect of the absence of the required votes is that there is no decision of or no action by the Council: the condition for their obligatory character is not fulfilled.

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