13 Mich JIntl L336

DATE DOWNLOADED: Thu Apr 22 21:26:32 2021
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 21st ed.

Thomas K. Plofchan Jr., Article 51: Limits on Self-Defense, 13 MICH. J. INT'l L. 336
(1992).
ALWD 6th ed.

Plofchan, T. ., Article 51: Limits on self-defense, 13(2) Mich. J. Int'l L. 336
(1992).
APA 7th ed.

Plofchan, T. (1992). Article 51: Limits on self-defense. Michigan Journal of
International Law, 13(2), 336-373.
Chicago 17th ed.

Thomas K. Plofchan Jr., "Article 51: Limits on Self-Defense," Michigan Journal of
International Law 13, no. 2 (Winter 1992): 336-373
McGill Guide 9th ed.

Thomas K Plofchan Jr, "Article 51: Limits on Self-Defense" (1992) 13:2 Mich J Int'l L
336.
AGLC 4th ed.

Thomas K Plofchan Jr, 'Article 51: Limits on Self-Defense' (1992) 13(2) Michigan
Journal of International Law 336.
MLA 8th ed.

Plofchan, Thomas K. Jr. "Article 51: Limits on Self-Defense." Michigan Journal of
International Law, vol. 13, no. 2, Winter 1992, p. 336-373. HeinOnline.
OSCOLA 4th ed.

Thomas K Plofchan Jr, 'Article 51: Limits on Self-Defense' (1992) 13 Mich J Int'l L
336
Provided by:
University of Groningen
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
ARTICLE 51: LIMITS ON SELF-DEFENSE?
Thomas K. Plofchan, Jr.*
INTRODUCTION
On August 2, 1990, Iraqi Forces crossed into Kuwait and pro-

ceeded to occupy the country. Kuwait was left with no control of its
territory, and subsequently requested assistance from the United
States and other nations.' International reaction was both swift and
unanimous, with the United Nations immediately voting to condemn
the Iraqi action. 2 Throughout the Crisis, which culminated in a
ground war between Iraq and U.S.-led coalition forces, 3 the U.N. Se-
curity Council was involved and utilized as a means for legitimizing
responses to the Iraqi aggression. All told, twelve resolutions relating
to the Crisis were passed prior to the outbreak of hostilities. 4
* U.S. Naval Academy, B.S.; Georgetown University, M.A. Mr. Plofchan is currently com-
pleting a Ph.D. in International Law at the Woodrow Wilson School of Government and Foreign
Affairs at the University of Virginia, and is a research associate at the Center for National Secur-
ity Law at the University of Virginia School of Law. He was a rapporteur for the session on
Constitutional Development in Southern Africa during the 1991 meeting of the American Soci-
ety of International Law. The author wishes to thank the following for their comments, manu-
scripts, and help with this article: Anthony Clark Arend, Robert Beck, Abram Chayes, Thomas
M. Frank, Richard Gardner, Richard Lillich, John Norton Moore, Shabtai Rosenne, Robert
Turner, and Robert Vander Lugt.
1. Kuwait requested the assistance of the United States, pursuant to Article 51 of the U.N.
Charter, in a letter from the Amir of the State of Kuwait to the President of the United States,
which stated, in part:
I therefore request on behalf of my government and in the exercise of the inherent right of
individual and collective self defense as recognized in Article 51 of the UN Charter that the
United States Government take such military or other steps as are necessary to ensure that
economic measures designed to fully restore our rights are effectively implemented.
Letter from the Amir of the State of Kuwait to President George Bush (Aug. 12, 1990) (photo-
copy of letter on file with author).
2. S.C. Res. 660, U.N. Doc. S/RES/660 (1990).
3. The Member States of the United Nations that comprised the International Coalition that
authorized action against Iraq in the Gulf Crisis were Argentina, Australia, Bahrain, Bangla-
desh, Belgium, Canada, Czechoslovakia, Denmark, Egypt, France, the Federal Republic of Ger-
many, Greece, Italy, Kuwait, Morocco, the Netherlands, Niger, Norway, Oman, Pakistan,
Qatar, Saudi Arabia, Senegal, Spain, Syria, the United Arab Emirates, the United Kingdom of
Great Britain and Northern Ireland, and the United States of America. Japan sent medical
teams to Saudi Arabia, Turkey allowed Coalition air force missions to take off from Turkish air
bases, and Germany provided extensive quantities of spare parts. JOHN NORTON MOORE, CRISIS
INTHE GULF: ENFORCING THE RULE OF LAW (manuscript at 174) (Mar. 11, 1991 draft) (forth-
coming 1992).
4. S.C. Res. 678, U.N. Doc. S/RES/678 (1990); S.C. Res. 677, U.N. Doc. S/RES/677
(1990); S.C. Res. 674, U.N. Doc. S/RES/674 (1990); S.C. Res. 670, U.N. Doc. S/RES/670
Winter 19921 Limits on Self-Defense?
Initially, the Security Council authorized only economic sanctions

as a response to the Iraqi invasion. 5 This authorization of limited ac-
tion, pursuant to Article 41 of the U.N. Charter, 6 caused speculation
on the legality of the use of force by Kuwait and its allies in the ab-
sence of further Iraqi aggression, especially after Iraq assumed control
7
over the entire territory of Kuwait.
Because the Security Council eventually authorized the use of
force in its resolution of November 29, 1990,8 the question of the legal-
(1990); S.C. Res. 661, U.N. Doc. S/RES/661 (1990); S.C. Res. 660, supra note 2.
5. S.C. Res. 661, supra note 4. In order to enforce economic sanctions against Iraq, the
Security Council passed Resolution 665 on August 25, 1990, which states in part that the Secur-
ity Council
Calls upon those Member States co-operating with the Government of Kuwait which are
deploying maritime forces to the area to use such measures commensurate to the specific
circumstances as may be necessary under the authority of the Security Council to halt all
inward and outward maritime shipping in order to inspect and verify their cargoes and
destinations and to ensure strict implementation of the provisions related to such shipping
laid down in resolution 661 (1990).
S.C. Res. 665, supra note 4.
6. Article 41 of the U.N. Charter states:
The Security Council may decide what measures not involving the use of armed force are to
be employed to give effect to its decisions, and it may call upon Members of the United
Nations to apply such measures. These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of com-
munication, and the severance of diplomatic relations.
U.N. CHARTER art. 41.
7. See infra notes 16-34 and accompanying text.
8. The resolution states in full:
The Security Council,
Recalling, and reaffirming its resolutions 660 (1990) of 2 August 1990, 661 (1990) of 6
August 1990, 662 (1990) of 9 August 1990, 664 (1990) of 18 August 1990, 665 (1990) of 25
August 1990, 666 (1990) of 13 September 1990, 667 (1990) of 16 September 1990, 669
(1990) of 24 September 1990, 670 (1990) of 25 September 1990, 674 (1990) of 29 October
1990 and 677 (1990) of 28 November 1990,
Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its
obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant
resolutions, in flagrant contempt of the Security Council,
Mindful of its duties and responsibilities under the Charter of the United Nations for the
maintenance and preservation of international peace and security,
Determined to secure full compliance with its decisions,
Acting under Chapter VII of the Charter,
1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent rele-
vant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final
opportunity, as a pause of goodwill, to do so;
2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq
on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the forego-
ing resolutions, to use all necessary means to uphold and implement resolution 660 (1990)
and all subsequent relevant resolutions and to restore international peace and security in the
area;
3. Requests all States to provide appropriate support for the actions undertaken in pur-
suance of paragraph 2 of the present resolution;
4. Requests the States concerned to keep the Security Council regularly informed on
the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;
5. Decides to remain seized of the matter.
S.C. Res. 678, supra note 4.
Michigan Journal of InternationalLaw [Vol. 13:336
ity of the Coalition's use of force without Security Council approval

never compelled an answer. 9 However, this question needs to be re-
solved or else States may in the future unwittingly use illegal force in
the mistaken belief that they are acting in self-defense, or refrain from
using desirable, lawful force to expel an invader.10 A stable world
community under the rule of law requires an understanding of the
right of self-defense.
To ascertain the true meaning of "self-defense" under Article 51 of
the U.N. Charter, this article uses a two-pronged analysis. First, the
article analyzes the U.N. Charter's meaning of self-defense." Second,
it examines the relatively few instances in which Article 51 has been
applied to determine whether State practice has been concordant with
the Article's underlying theory 12 or whether a new practical definition
3
of an Article 51 right has been developed.'
9. See Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AM. J. INT'L L. 452, 459
(1991). Schachter states that
[t]he controversy over preemption ended when the Security Council adopted Resolution 678
on November 29, 1990, authorizing the states cooperating with Kuwait to use "all necessary
means to uphold and implement" the Council's resolutions if Iraq did not unconditionally
withdraw on or before January 15, 1991. It was amply clear that necessary means included
the use of armed force to bring about Iraq's withdrawal and compliance with other provi-
sions of the twelve resolutions adopted between August 2 and November 29.
Id.
10. See infra note 31 and accompanying text.
11. Most interpreters of international law recognize that obligations under the Charter must
be understood in the context of treaty interpretation for those States that have ratified the Char-
ter and not merely as obligations under customary international law. See Anthony C. Arend,
InternationalLaw and the Recourse to Force:A Shift in Paradigms,27 STAN. J. INT'L L. 1, 20
(1990).
12. Professor Arend has identified three basic interpretive philosophies with respect to inter-
national law. These are (1) the legalist philosophy, which holds that the norm of the non-use of
force outlined in Article 2(4) is still good law as it has not been repudiated; (2) the core interpre-
tivist philosophy, which holds that the narrow, legalistic interpretation of Article 2(4) does not
represent existing law but that the "core" meaning of the Article is still authoritative and con-
trolling; and (3) the rejectionist philosophy, which holds that Article 2(4) does not constitute
existing law because authoritative state practice does not support such an assertion. Id. at 19, 25,
& 27. Arend concludes that the rejectionist philosophy is the most useful for determining the
legality of modern uses of force:
The legalist approach seems too removed from the realities of the international system and
the core interpretivist approach seems to do little more than perpetuate a legal fiction.
Based on what states have been saying and what they have been doing, there simply does not
seem to be a legal prohibition on the use of force against the political independence and
territorial integrity of states as provided in even a modified version of article 2(4). The rule-
creating process-authoritative state practice-has rejected that norm.
Id. at 28. Thus, if it reflects a norm different from that expressed in a treaty, an examination of
subsequent State practice may permit a different opinion on the legality of modem use of force
dependent on the philosophy the opinion-maker espouses. Nevertheless, it may be concluded
that if subsequent State practice is consistent with a determination of legality made with respect
to a legalist perspective, the use of force norm remains valid regardless of which philosophical
perspective one uses to evaluate it.
13. Although this piece focuses on the post-Charter interpretation of self-defense as defined
by international agreement and interpretation of the U.N. Charter, it is recognized that self-
defense also is considered a right of States under customary international law and that the right
Winter 1992] Limits on Self-Defense?
This article's two-pronged analysis has three distinct parts. Part I

lays out the controversy of Article 51 interpretation as applied to the
recent Gulf Crisis. Part II examines the legal guidance for interpret-
ing the U.N. Charter, the Charter's travaux preparatoires,and specifi-
cally the work of the committees and subcommittees responsible for
drafting and amending articles that fully incorporate the right of self-
defense into the Charter. This Part develops conclusions on Article 51
that may be applied to the context of the recent Gulf Crisis. This Part
also contrasts the Article 51 right of collective self-defense with the
right of regional organizations to take action. Finally, Part III looks
at the application of Article 51 in the first decade after its passage.
The analysis concludes that an appropriate interpretation of Article 51
that comports with major policy concerns can be derived from history,
and can be relied on by the world community.
I. THE DEBATE IN ISSUE
In order to understand completely the complexity and importance

of the debate surrounding the correct interpretation of Article 51, the
Article itself must first be examined. Article 51 states:
Nothing in the present Charter shall impair the inherent right of individ-
ual or collective self-defence 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. Measures taken
by Members in the exercise of this right of self-defence shall be immedi-
ately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security. 14
The statutory language is not a model of clarity. Specifically, the
phrase "until the Security Council has taken measures necessary to
existed in the pre-Charter era. For a brief discussion of the right of self-defense under customary
international law, see MOORE, supra note 3, at 96 n. It:
For a sampling of scholars not limiting the right of defense to Article 51 of the Charter, see,
e.g., D. W. BOWETr, SELF-DEFENSE IN INTERNATIONAL LAW 194-93 (1958); MYRES MC-
DOUGAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 233-41 n.I
(1961); and JULIUS STONE, AGGRESSION AND WORLD ORDER 92-101 (1958). This is cer-
tainly the better view given that, among other evidence, the language of "inherent" or "nat-
ural" is used to describe the right of defense in the English and French language version[s]
of article 51 and that the negotiating history of the Charter suggests that Article 51 was not
intended to impair the pre-Charter customary right of defense. In this connection, it should
be noted that at the San Francisco Conference leading to the United Nations, Committee 1/
I stressed in its report, which was approved at a full Plenary level, th[at] "[t]he use of arms
in legitimate self defense remains admitted and unimpaired." See McDOUGAL & FELICI-
ANO, supra, at 231-42 (1961), quoted in NATIONAL SECURITY LAW 105-11, 108 (John Nor-
ton Moore et al. eds., 1990).
Id.
14. U.N. CHARTER art. 51.
maintain international peace and security" '1 5 is open to numerous in-

terpretations. These interpretations form the basis of the present
controversy.
Prior to the Security Council resolution of November 29, 1990,
authorizing the use of force against Iraq, a debate arose among inter-
national legal scholars concerning the correct interpretation of Article
51 and its provisions on collective and individual self-defense. 16 On
November 9, 1990, the U.N. Secretary General, Javier P6rez de Cu6l-
lar, told reporters that Article 51 may not be available to justify the
use of force by other nations attempting to assist Kuwait because three
months had elapsed since the original invasion. P6rez de Cu6llar
"suggested that Article 5 I's validity had expired and that Iraq would
17
have to launch another military attack before it could again apply."'
A similar argument was also presented earlier by, among others,18
Professor Abram Chayes of the Harvard Law School. In a paper
presented to a U.S.-Soviet conference in early October 1990, Professor
Chayes suggested that Kuwait had lost the right of self-defense under
Article 51 because the Security Council had debated and passed sev-
eral resolutions concerning the Crisis.19 Professor Chayes argued that
absent further provocation by Iraq or authorization by the Security
Council, the notion that the United States would be free to use force
against Iraq by virtue of a continuing right of collective self-defense
emanating from the original attack on Kuwait was at best controver-
21
sial, 20 and at worst textually baseless:
The textual argument against this position, it seems to me, is very strong.
Article 51 is, as we all know, not an affirmative grant of a right of self-
defense but a statement of the situations in which the exercise of an "in-
herent right" is not precluded by the Charter. But those situations are
subject to a limit of time. They endure only "until the Security Council
has taken the measures necessary to maintain international peace and
15. Id.
16. See infra notes 17-35 and accompanying text. The Chairman of the American Bar Asso-
ciation Section on International Law, Homer E. Moyer, Jr., recognized the existence of the con-
troversy in a recent column. Homer E. Moyer, Jr., Legal Issues Of The Gulf War, 20 INT'L L.
NEWS 2 (1991) ("A legal issue overtaken by events is whether U.N. action to impose an embargo
under article 41 preempts a member's right subsequently to act in self-defense under article 51.").
17. UN. Article 51 May Not Permit Strike at Iraq, WASH. POST, Nov. 9, 1990, at A30.
18. Professor Schachter notes that the position that the right of self-defense no longer applied
when the Security Council adopted measures it considered necessary to repel the attack was
taken in Paul Lewis, US. PreparingU.N. Draft on Claims Against Baghdad, N.Y. TiMEs, Nov. 1,
1990, at A12. Schachter, supra note 9, at 458.
19. Abram Chayes, The Use of Force in the Persian Gulf (Oct 4-6, 1990) (paper prepared for
the U.S.-Soviet Conference on the Non-Use of Force, on file with author).
20. Id. at 8.
21. Id. at 9.
security." '22
Apparently the rationale for both the Secretary General's and Pro-
fessor Chayes's argument lies in their interpretation of Article 51. As
was pointed out above, Article 51 allows for self-defense action until
the Security Council takes action. Consequently, one plausible inter-
pretation of the Article is that "the Council already has taken such
measures - namely economic sanctions against Iraq and the dispatch
of naval forces to regional waters to enforce them."' 23 Because the Se-
curity Council passed several resolutions on the Crisis, action was
taken and the Kuwaiti right to resist no longer existed. Accordingly,
Kuwait would be forced to wait and see if the sanctions worked, 24 or if
the Security Council decided to take additional action as authorized
under Article 42.25
22. Id. Professor Chayes also supports his thesis by reference to the Security Council's abil-
ity to function according to its design. He argues that
[i]n those instances [during the Cold War when the Council was immobilized by vetoes] it
would be a plausible argument that the Council was simply not exercising its functions, so
that the preemption contemplated by Article 51 when the Council was truly addressing the
situation, does not come into operation. [However, i]nthe present situation, as has been
widely acknowledged, the Security Council is working "as it was supposed to work" accord-
ing to the design of the Framers.
Id. at 11. Thus, one might infer from Professor Chayes's argument that because the Security
Council is functioning as "it is supposed to function," any State practice subsequent to the ratifi-
cation of the U.N. Charter but prior to the Gulf Crisis may be ignored.
23. UN. Article 51 May Not Permit Strike at Iraq, supra note 17, at A30.
24. 106 States reported compliance with the Security Council Resolution 661 on Economic
Sanctions against Iraq: Afghanistan, Albania, Algeria, Antigua and Barbuda, Argentina, Austra-
lia, Austria, the Bahamas, Bahrain, Bangladesh, Belgium, Belize, Bolivia, Brazil, Brunei Darus-
salam, Bulgaria, Burundi, Canada, Chile, China, Colombia, Costa Rica, COte d'Ivoire, Cuba,
Cyprus, Czechoslovakia, the Democratic People's Republic of Korea, Denmark, the Dominican
Republic, Egypt, El Salvador, Ethiopia, Fiji, Finland, France, the German Democratic Republic,
the Federal Republic of Germany, Greece, Guatemala, Honduras, Hungary, Iceland, India, In-
donesia, the Islamic Republic of Iran, Ireland, Israel, Italy, Japan, Kuwait, Jordan, Lao People's
Democratic Republic, Lebanon, Lesotho, Liechtenstein, Luxembourg, Malaysia, Maldives, Mali,
Malta, Mauritius, Mexico, Mongolia, Morocco, Myanmar, Nepal, the Netherlands, New Zea-
land, Nicaragua, Norway, Oman, Panama, Paraguay, Peru, the Philippines, Poland, Portugal,
Qatar, the Republic of Korea, Romania, Saudi Arabia, Senegal, Singapore, Solomon Islands,
South Africa, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, the Syrian Arab Repub-
lic, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukranian Soviet Socialist Republic,
the United Arab Emirates, the United Kingdom of Great Britain and Northern Ireland, the
United States of America, Uruguay, Viet Nam, Yemen, Yugoslavia, and Zimbabwe. Citizens for
a Free Kuwait Fact Sheet, List of 106 States Reporting Compliance With United Nations Secur-
ity Council Resolution 661 on Economic Sanctions (Sept. 6, 1990) (on file with author). Unfor-
tunately, the sheer number of States participating in economic sanctions provides no indication
of the likelihood of their success because 53 nations did not comply with the Security Council's
call for sanctions.
25. Article 42 authorizes the Security Council to take additional action if it deems unproduc-
tive non-forceful action taken under Article 41. Article 42 states:
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.
U.N. CHARTER art. 42. Note that this Article was written with the understanding that the
Indeed, in a textual analysis, Professor Chayes argues that judg-

ment of whether measures authorized by the Security Council are suf-
ficient to maintain international peace and security resides with the
Security Council. He further implies that any action taken by the Se-
curity Council, whether authorizing the use of force or action short of
the use of force, is indicative of the Security Council's judgment. This
textual analysis is based on an examination of Articles 39, 41, and 42
and their juxtaposition to Article 51. Chayes states:
Article 39 says the Council "shall . . . decide what measures shall be
taken in accordance with Article 41 and 42 to maintain or restore inter-
national peace and security." The same phrase, "measures necessary to
maintain international peace and security" is the key to the temporal
limitation on the inherent right of self-defense in Article 51. Even more
telling is Article 42, the article that empowers the Security Council to
adopt measures involving the use of force, which begins: "Should the
Security Council consider that measures provided for in article 41 [i.e.,
diplomatic and economic sanctions] would be inadequate or have proved
to be inadequate .... ." It seems clear that all these provisions of Chapter
VII - which is entitled "Action with Respect to Threats to the Peace,
Breaches of the Peace, and Acts of Aggression" - are interlocking and
that the critical phrase, "measures necessary to maintain international
26
peace and security," carries the same meaning in all of them.
Thus, because the Security Council passed resolutions on the issue,
thereby effectively "taking action," by definition, "measures necessary
for the maintenance of international peace and security" were taken.
However, another equally plausible interpretation of Article 51 re-
lies on the full meaning and intention of the sentence in question and
not merely on the word "until." According to this interpretation, the
Article should be read so that self-defensive action is permitted until
the Security Council takes action that definitely restoresand maintains
internationalpeace and security. Consequently, because economic
sanctions showed no signs of forcing Iraq out of Kuwait, 27 and be-
Military Staff Committee as provided for in Article 47, and U.N. forces as provided for in Article
45, would be available to the Security Council. Given the nonexistence of these elements, it is
still logical to assume that the Security Council has the ability to authorize collective defensive
action after assessing as inadequate measures taken pursuant to Article 41. This is the legal basis
for the Security Council's authorization of the use of force in Resolution 678. What is at issue in
the present paper is whether Kuwait and its allies can take self-defensive action without Security
Council approval.
26. Chayes, supra note 19, at 9-10.
27. For an excellent discussion of the limitations of economic sanctions and the unlikelihood
that their implementation would force action by a resisting State, see MARGARET P. DOXEY,
ECONOMIC SANCTIONS AND INTERNATIONAL ENFORCEMENT (2d ed. 1980). But see Moyer,
supra note 16, at 2 ("In terms of the ultimate effectiveness of economic sanctions in achieving
specified political objectives, however, the results of the foreshortened embargo are not conclu-
sive. One aspect of the policy debate sure to follow will be that this crisis presented a nearly
optimal test case for economic sanctions.").
cause Kuwait and its allies continually protested the illegal aggression
of Iraq, 28 economic sanctions cannot be construed as resulting in the
maintenance of international peace. 29 Therefore, continued self-defen-
sive action by Kuwait and its allies is permitted despite the Security
Council's adoption of economic sanctions.
This second interpretation of Article 51 - that defensive action is
permissible until peace is established - is supported in Security Coun-
cil resolutions made in response to the Iraqi invasion. In the context
of the Gulf Crisis, Resolution 661 explicitly affirms "the inherent right
' 30
of individual or collective self-defense."
Additionally, proponents of the concept of continuing self-defense
make an argument that runs to the future of the United Nations.
Abraham Sofaer, the legal advisor to the State Department from 1985
to June 1990, argues that interpreting the Article as the Secretary
General and Professor Chayes do would provide no incentive for
States to come to the United Nations or the Security Council when
their interests are threatened. 3 1 Sofaer writes:
[The Secretary General's] argument is textually baseless and wholly in-
consistent with the Charter's purposes. Article 51 affirms that right to
defend against an attack until the Security Council has taken measures
that are "necessary" to restore peace and security, therefore making any
resort to further measures unnecessary. Otherwise, a state would be re-
quired to lay down its arms as soon as the Council takes any measure,
however ineffectual. Needless
32
to say, this would not encourage asking
the Council for assistance.
The fundamental tenet of Sofaer's remarks is echoed by Professor
Schachter, who states that "[i]f these words are taken literally, the
right of self-defense would be overridden whenever the Security Coun-
cil adopted measures considered necessary in case of an armed attack
28. This is an important point because logic demands giving credit to a nation's claim of
legitimate control over a territory taken by force if no resistance or protest was made over the
action. For a broad collection of statements by world leaders condemning Iraq's aggression
against Kuwait, see Review, 7 SAUDI ARABIA 6-11, 16-25 (EIU Country Report No. 1, 1991).
29. See Schachter, supra note 9, at 458. Schachter states:
It was obvious that such economic sanctions were adopted in the hope that they would be
effective in bringing about the withdrawal of Iraqi forces. While this was the hope, the
resolutions contained no indication that self-defense rights were meant to be terminated by
the adoption of sanctions. Indeed, the very resolution, No. 661, that first adopted the eco-
nomic sanctions included the preambular paragraph, referred to above, affirming rights of
individual and collective self-defense. The adoption of sanctions and the simultaneous affir-
mation of self-defense are surely inconsistent with an intention to bring an end to self-de-
fense measures.
Id.
30. S.C. Res. 661, supra note 4; see Abraham D. Sofaer, Asking the UN. Is Asking For
Trouble, WALL ST. J., Nov. 5, 1990, at A14.
31. Sofaer, supra note 30, at A14.
32. Id.
on a state. This would be an implausible - indeed, absurd -

33
interpretation."
The arguments of both sides are logical and are easily derived from
a plain reading of the U.N. Charter. Unfortunately, because the Char-
ter is the essential paradigm for determining the legality of actions
taken by international actors, 34 its lack of precision and multiple inter-
pretations cannot be tolerated. Consequently, an examination of the
Charter's foundational documents is required to reveal the intent of
the Charter's framers, and thus the proper interpretation of the
Article.
II. THE FRAMERS' INTENT
A. The Interpretive Dilemma

As a multilateral treaty, 35 the U.N. Charter's interpretation is gov-
erned by the Vienna Convention on the Law of Treaties. 36 In Article
31, entitled "General Rule of Interpretation," the Vienna Convention
states: "A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose."'37 Thus, to resolve
the dispute concerning the proper interpretation of the phrase "until
the Security Council has taken the measures necessary to maintain in-
ternational peace and security," those involved in the debate need only
look to the ordinary meaning of words in their context and with re-
spect to their purpose.
Despite the application of the Vienna Convention suggested above,
disagreement remains over the "ordinary meaning" of the phrase
''measures necessary to maintain" within a specific context and for a
specific purpose. The argument of the Secretary General and Profes-
sor Chayes implies a context of Idealist interpretation that considers
the Charter as a whole. Thus, Professor Chayes compares the provi-
sions of Article 51 to similar phrasing in Articles 39, 41, and 42. On
the other side of the debate, the arguments of Judge Sofaer and Profes-
33. Schachter, supra note 9, at 458.

34. For an argument suggesting that this paradigm should be replaced, see Arend, supra note
11, at 7.
35. See id.; Abram Chayes, The Security Council and Self Defense: Speculations on the Per-
sian Gulf War (manuscript at 6) (unpublished manuscript, on file with author) ("Moreover, the
UN Charter, although in the main a constitutive document, is also a treaty among independent
states.").
36. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679 (1969), U.N. Doc. A/Conf. 39/27 (1969) (entered into force Jan. 27,
1980) [hereinafter Vienna Convention].
37. Id. art. 31, 1155 U.N.T.S. at 340, 8 I.L.M. at 691-92 (emphasis added).
sor Schachter imply a context of Realist 38 dispute resolution. They

refuse to recognize Security Council action as limiting self-defensive
action unless the Security Council specifically states that it is doing
so.39 In support of the latter position is the Security Council recogni-
tion of the right of collective self-defense in the same resolution 4° in
which it adopted economic sanctions. As Professor Schachter states,
"[p]resumably, the members did not consider at the time that meas-
ures of self-defense were inconsistent with, or terminated by, the
Council's nonforcible sanctions."' 4 1 Consequently, the existence of the
debate shows that, unfortunately, the text of Article 51 on its face ap-
pears to have no clear meaning. However, since the signing and ratifi-
cation of the Vienna Convention, it has been recognized that sole
reliance on a treaty's text for its meaning is often a discredited
42
practice.
In fact, the Vienna Convention recognizes the limitations of tex-
tual interpretation. Article 32, entitled "Supplementary Means of In-
terpretation," states:
Recourse may be had to supplementary means of interpretation, includ-
ing the preparatory work of the treaty and the circumstances of its con-
clusion, in order to confirm the meaning resulting from the application
of article 31, or to determine the meaning when the interpretation ac-
cording to article 31:
(a) leaves the meaning ambiguous or obscure; or 43
(b) leads to a result which is manifestly absurd or unreasonable.
There can be no doubt that the current debate over Article 51 results
38. For a good synopsis of the different schools of international relations theory, see Ian
Johnstone, Treaty Interpretation: The Authority of Interpretive Communities, 12 MICH. J. INT'L
LAW 371, 373 n.6 (1991). Johnstone writes, "Political realism is a theory of international rela-
tions that sees world politics as determined entirely by the power relations of sovereign States.
The creation and decline of international rules and institutions, and the degree to which States
respect them, depend solely on existing power alignments." Id. For the classic modern articula-
tion of political realism, see HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUG-
GLE FOR POWER AND PEACE (6th ed. 1985).
39. Schachter, supra note 9, at 459 ("Significantly, no government contested the ultimate
right of the Council to prohibit all military action by a state, even if defensive. Article 51 is
entirely clear that self-defense claims are subject to the Council's authority."); see id. at 471
("The states claiming the right to use of force in collective self-defense cannot be the final arbiters
of its legality."); Oscar Schachter, Self-Defense and the Rule of Law, 83 AM. J. INT'L L. 259
(1989).
40. S.C. Res. 661, supra note 4. Recognition of a right of collective self-defense under Article
51 of the Charter should not be confused with an authorization of the use of force under Article
42 of the Charter.
42. Johnstone, supra note 38, at 374 ("In the notoriously heterogeneous international system,
treaties are typically concluded by States with different cultures and, often, different languages.
Thus, the notion that the interpreter's task is merely to construe the words of the instrument,
with little recourse to context or extrinsic evidence, has been largely discredited.").
43. Vienna Convention, supra note 36, art. 32, 1155 U.N.T.S. at 340, 8 I.L.M. at 692.
from the Article's ambiguous and obscure meaning. Thus, Article 32

of the Vienna Convention should be applicable and Article 51's inter-
pretation may be derived in part by an examination of Article 51's
travaux priparatoires."
International legal theorists also support this suggested recourse to
the preparatory documents of the U.N. Charter in order to discern the
meaning of Article 51.4 5 Ian Johnstone has recently explained that
law "structures the relations among States by providing a common
frame of reference" 4 6 and that "to present one's claims in legal terms
means to signal which norms one considers relevant and to indicate
which procedures one intends to follow and would like others to fol-
low." '47 Thus, interpretive activity becomes enterprise-specific because
each treaty is a separate communicative act. Although certain gener-
alizations can be applied to all international agreements, treaties and
treaty terms may be unique, and require one to recognize that "inter-
pretive practices vary with the subject matter, the number of con-
tracting parties and the context in which the treaty is made and
implemented. '48 In those instances where the ordinary meaning of
44. This conclusion may also be reached by examining the sources of international law, as
defined in the Statute of the International Court of Justice Article 38(1) lists these sources as:
a: international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b: international custom, as evidence of general practice accepted as law;
c: the general principles of law recognized by civilized nations;
d: .. .judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.
STAT. OF THE INT'L CT. OF JUSTICE art. 38(1). It can be argued fairly that the preparatory
documents for any multilateral treaty, especially one that involves as many States as the U.N.
Charter, may indicate general principles of law recognized by civilized nations. Such documents
may also contain articulations of international customs.
45. See sources in notes 46-48, infra.
46. Johnstone, supra note 38, at 376.
47. Id.; see HEDLEY BULL, THE ANARCHICAL SOCIETY 142 (1977). He states:
[I]nternational law provides a means by which states can advertise their intentions with
regard to the matter in question; provide one another with reassurance about their future
policies in relation to it; specify precisely what the nature of the agreements is, including its
boundaries and limiting conditions; and solemnize the agreement in such a way as to create
an expectation of permanence.
Id.
48. Johnstone, supra note 38, at 380. Johnstone refers to Stanley Fish in concluding that
"interpretation is constrained not by the language of the text, nor its context, but by the 'cultural
assumptions within which both texts and contexts take shape for situated agents'." Id. at 378
(citing STANLEY FISH, DOING WHAT CoMEs NATURALLY 300 (1989)). Fish states his view of
the interpretive dilemma thus:
What was required was an explanation that could account for both agreement and disagree-
ment, and that explanation was found in the idea of an interpretive community, not so much
a group of individuals who shared a point of view, but a point of view or way of organizing
experience that shared individuals in the sense that its assumed distinctions, categories of
understanding, and stipulations of relevance and irrelevance were the content of the con-
sciousness of community members who were therefore no longer individuals, but, in so far
as they were embedded in the community's enterprise, community property.
treaty terms cannot be ascertained with certainty, resort to supplemen-

tary means of interpretation, including the preparatory work of the
treaty, becomes necessary.4 9 Thus, according to this theoretical view
also, in order to ascertain the correct interpretation of Article 51, it
becomes necessary to examine the travauxpriparatoiresand to deter-
mine the intent of the framers of the U.N. Charter.
B. The Framers'Intent
When they offered the Dumbarton Oaks Proposals for a General
International Organization, 50 the sponsoring powers of the Proposals
recognized that international disputes are likely and that some may
result in a breach of peace. Thinking it easier to control the resort to
the use of force than to eliminate disputes entirely, the original Dum-
barton Oaks Proposals emphasized dispute resolution through peace-
ful means. 5 ' In fact, the first responsibility of the Security Council was
to encourage the parties to a dispute to settle their differences without
resorting to the use of force. 52 The Proposals read, in part:
The parties to any dispute the continuance of which is likely to endanger
the maintenance of international peace and security should obligate
themselves, first of all, to seek a solution by negotiation, mediation, con-
ciliation, arbitration or judicial settlement, or other peaceful means of
their own choice. The Security Council53
should call upon the parties to
settle their dispute by such means.
Nevertheless, despite the best of intentions, the sponsoring powers
recognized that an obligation to use peaceful means for dispute resolu-
tion would create perverse incentives for some nations to free ride on
the willingness of other nations to use diplomacy instead of force. The
obligation to use diplomacy advantages those States that mobilize rap-
idly and strike without recourse to attempts at peaceful resolution.
54
Such was the case in the recent Gulf Crisis.
FISH, supra, at 141.
49. See Johnstone, supra note 38, at 374.
50. Doc. 1, G/l, 3 U.N.C.I.O. Docs. 1 (1945) [hereinafter Doc. 1].
51. Id. at 13.
52. Id.
53. Id.
54. The international obligation to seek peaceful resolution of conflicts predates the Charter.
Indeed, Iraq's invasion of Kuwait violated, among other international agreements, the Third
Hague Convention of 1907, which provides: "The contracting Powers recognize that hostilities
between themselves must not commence without previous and explicit warning, in the form
either of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of
war." Convention No. III Relative to the Opening of Hostilities, Oct. 18, 1907, art. 1, 36 Stat.
2259. Prior to the invasion, Saddam Hussein denied to Arab leaders and others that an invasion
of Kuwait was planned. Youssef M. Ibrahim, Iraq Said to Prevail in Oil Dispute with Kuwait and
Arab Emirates, N.Y. TIMES, July 26, 1990, at Al, A7; Tom Matthews, The Road to War, NEWS-
WEEK, Jan. 28, 1991, at 56.
Michigan Journal of International Law [Vol. 13:336
Consequently, the sponsoring powers proposed means in the Dum-

barton Oaks Proposals designed to eliminate any incentive to use
force. Notably, the proposed measures did not include reliance on any
right of self-defense.
Instead, the Proposals read:
In order to enable urgent military measures to be taken by the Organiza-
tion there should be help immediately available by the members of the
Organization's national air force contingents for combined international
enforcement action. The strength and degree of readiness of these con-
tingents and plans for their combined action should be determined by
the Security Council with the assistance of the Military Staff Committee
within the55 limits laid down in the special agreement or agreements re-
ferred to.
Crisis response was to be left to the purview of the Security Council,
which was to rely on the Military Staff Committee and designated
forces. Indeed, this procedure remained the intent of the framers as
one means of crisis response, as evidenced by Article 47.56
Secondly, the sponsoring powers envisioned that regional arrange-
ments would provide the means for dealing with most conflicts and
that the Security Council would concern itself only with the most seri-
ous. 57 The Security Council's role, in those cases where a regional
arrangement had jurisdiction, appears to have been limited to the ap-
58
proval of enforcement action.
However, the complete reliance on the Security Council and the
Military Staff Committee for the preservation of international peace
and the maintenance of the security of all nations was deemed inade-
quate. Mr. Serrato of Uruguay succinctly stated a common sentiment:
"In the event that any state should make an attempt, or prepare for an
attempt against such rights and such peaceful relations, collective in-
55. Doc. 1,supra note 50, at 16.

56. Article 47(1) states:
There shall be established a Military Staff Committee to advise and assist the Security Coun-
cil on all questions relating to the Security Council's military requirements for the mainte-
nance of international peace and security, the employment and command of forces placed at
its disposal, the regulations of armaments, and possible disarmament.
U.N. CHARTER art. 47(1).
57. Doc. 1,supra note 50, at 18. The proposal read:
SECTION C. REGIONAL ARRANGEMENTS.
1. Nothing in the Charter should preclude the existence of regional arrangements or agen-
cies for dealing with such matters relating to the maintenance of international peace and
security as are appropriate for regional action, provided such arrangements or agencies and
their activities are consistent with the purposes and principles of the Organization.
Id.
58. Id. at 18-19 ("2. The Security Council should, where appropriate, utilize such arrange-
ments or agencies for enforcement action under its authority, but no enforcement action should
be taken under regional arrangements or by regional agencies without the authorization of the
Security Council.").
Winter 1992) Limits on Self-Defense?
tervention by all nations in order to reestablish peace would be proper

and justified."' 59 Uruguay clearly advocated some recognition of a
right to collective self-defense.
Uruguay was not alone. The Turkish Government also made a
similar statement, though addressing collective action in the context of
regional arrangements:
The Turkish Government believes that in cases of emergency the imme-
diate action which may be initiated through the application of regional
arrangements should not be deferred pending the decision of the Security
Council, since, in such cases, any delay due to procedure would be detri-
mental to the country being attacked. 6°
Turkey recognized that the provisions of the proposed Charter for
handling urgent matters might prove inadequate. Consequently,
Commission III of the United Nations Conference on International
Organization 6 unanimously approved the decision to insert a new
paragraph in the text of the Dumbarton Oaks Proposals 62 - a para-
graph designed to ensure a State's right to take defensive action in
response to aggression.
C. Remarks of the CoordinatingCommittee

The Commission's approval came after a similar unanimous ap-
proval by Committee III/4,63 which heard the initial debate on the
59. Doc. 24, P/8, I U.N.C.I.O. Docs. 305 (1945) (Verbatim Minutes of the Fourth Plenary
Session, April 28, 1945).
60. Doc. 2, G/14(e), 3 U.N.C.I.O. Docs. 483 (1945).
61. According to the Report of the Rapporteur of Commission III:
The task assigned to Commission III by the Conference consisted of the preparation of draft
provisions on four principal topics relating to the maintenance of international peace and
security. These were: the structure and functioning of the Security Council; the determina-
tion of procedures for the pacific settlement of international disputes; the methods to be used
by the United Nations for the enforcement of peace and security; and, finally, consideration
of the regional arrangements which might serve as a useful complement to the central Or-
ganization. Each of these topics was assigned to a technical committee, the documentation
consisting of the original Dumbarton Oaks Proposals, together with the amendments of the
sponsoring governments and those submitted by the various national delegations.
Doc. 1170, 111/13, 11 U.N.C.I.O. Docs. 232 (1945).
62. Doc. 510, G/62, 3 U.N.C.I.O. Docs. 635 (1945) (Proposal for the Amalgamation of
Amendments Offered to Chapter VIII, Section C Prepared by the Delegation of the United
States in Consultation with the Other Sponsoring Governments and France of May 21, 1945,
Restricted) [hereinafter Doc. 510]; RUTH B. RUSSELL & JEANNETTE E. MUTHER, A HISTORY
OF THE UNITED NATIONS CHARTER, THE ROLE OF THE UNITED STATES 1940-1945, at 704
(1958).
63. Doc. 576, 111/4/9, 12 U.N.C.I.O. Docs. 679 (1945) (Summary Report of the Fourth
Meeting of Committee 111/4, Restricted) [hereinafter Doc. 576]; Doc. 904, 111/4/13(1), 12
U.N.C.I.O. Docs. 739, 741 (1945) (Report of Dr. V. K. Wellington Koo, Rapporteur of Commit-
tee 111/4, to Commission III (Approved by Committee 111/4 on June 11, 1945), Restricted);
Doc. 891, 111/4/13, 12 U.N.C.I.O. Docs. 723, 726 (1945) (Draft Report of Dr. V. K. Wellington
Koo, Rapporteur of Committee 111/4, To Commission III). This proposal was also approved
unanimously at the Subcommittee level. Doc. 533, III/4/A/9, 12 U.N.C.I.O. Docs. 848, 849
(1945) (Interim Report to Committee 111/4 by Subcommittee 111/4/A on the Amalgamation of
need for a new paragraph. Upon the unanimous approval of the text
of what was to become Article 51, numerous countries offered remarks
designed to place interpretive statement in the record.64 Such inter-
pretive reservations are recognized as legally binding under the Vienna
Convention. 65 The most noteworthy remarks were those of the Com-
mittee Chairman, Colombian Foreign Minister Lleras-Camargo.
Speaking for the Latin American countries, he stated that "the origin
of the term 'collective self-defense' is identified with the necessity of
'
preserving regional systems like the Inter-American one. "66
The Colombian Foreign Minister's remarks were designed to show
that collective defense and self-defense, even if undertaken by a re-
gional organization, were in line with the principles and intentions of
the Charter. He further stated:
The Charter, in general terms, is a constitution, and it legitimizes the
right of collective self-defense to be carriedout in accord with the regional
pacts so long as they are not opposed to the purposes and principlesof the
Organization.... If a group of countries with regional ties declare their
solidarity for their mutual defense, as in the case of the American states,
they will undertake such defense jointly if and when one of them is at-
tacked. And the right of defense is not limited to the country which is
the direct victim of aggression but extends to those countries which have
established solidarity, through regional arrangements, with the country
directly attacked. This is the typical case of the American system....
From this, it may be deduced that the approval of this article implies 67
that the Act of Chapultepec is not in contravention of the Charter.
The interpretive wording is critical. The right of collective defense
exists as long as the purposes andprinciples of the Organizationare not
undermined. The framers of Article 51 did not intend for defensive
Amendments, Submitted by the Rapporteur, Dr. V. K. Wellington Koo (China), Restricted).

The Subcommittee report reads, in part:
[T]he Subcommittee makes the following recommendations to the Committee by unanimous
vote, with the single exception as to a procedural matter indicated below under item 2:...
2. That a new paragraph be inserted into the language of the Dumbarton Oaks Proposals,
in accordance with a further suggestion in the United States proposal.... The Subcommit-
tee was unanimous in approving the recommendation of this text to the Committee.
Id.
64. RUSSELL & MUTHER, supra note 62, at 704.
65. Article 20 of the Vienna Convention states in part:
[U]nless the treaty otherwise provides, a reservation is considered to have been accepted by
a state if it shall have raised no objection to the reservation by the end of a period of twelve
months after it was notified of the reservation or by the date on which its consent to be
bound by the treaty, whichever is later.
Vienna Convention, supra note 36, art. 20, 1155 U.N.T.S. at 331, 8 I.L.M. at 679.
66. Doc. 576, supra note 63, at 680.
67. Id. at 680, 681 (emhasis added). The Act of Chapultepec was created in 1945 as a decla-
ration of reciprocal assistance and solidarity among American countries. Among other sugges-
tions, the Act recommends that the American countries consider establishing common
mechanisms to prevent or repel aggression against any of them through the use of armed force.
action to become illegitimate upon action by the Security Council, but

only if defensive action contradicted Security Council action. Accept-
ance of this interpretation was nearly unanimous among those nations
68
providing interpretive remarks.
The other Latin American delegations accepted the Colombian in-
terpretation. 69 Egypt observed that the new text "should certainly ex-
tend to the League of Arab States,"1 0 and France, wishing "to give
utterance to the Voice of Europe,"'7' asserted that the formula "ex-
'72
tended in general to cases of mutual assistance against aggression.
The only discordant voice was that of New Zealand, which feared that
regional arrangements would prove to be instruments of aggression,
73
not peace, and consequently produce inter-area conflict.
Furthermore, the intent of the framers becomes clearer given the
rejection of proposed wording for the Article that would have better
reflected the meaning later ascribed to the Article by Secretary Gen-
eral P6rez de Cu6llar and Professor Chayes. Mr. Robertson of Can-
ada, on June 8, 1945, proposed a revision of the text of the Article
such that it would read: "Nothing in this Charter shall impair the
inherent right of individual or collective self-defense against armed at-
tack pending the taking by the Security Council of the measures neces-
sary to maintain or restore internationalpeace and security.' ' 74 This
proposal clearly limited defensive action to that time period between
the initiation of aggression and the initiation of the Security Council's
response. Applying the proposal to the recent Gulf Crisis, Coalition
forces would have been impotent to take any action after the August 6,
1990, imposition of economic sanctions against Iraq by the Security
Council 7 without prior approval of the Security Council.
However, this proposal was not even considered by the Commit-
68. See supra notes 44-51 and accompanying text.

69. Doc. 576, supra note 63, at 681 ("The Delegates of Mexico, Costa Rica, Paraguay, Vene-
zuela, Chile, Ecuador, Bolivia, Uruguay, Peru, Guatemala, El Salvador, Brazil, Honduras, and
Cuba associated themselves with this statement."). The delegate of Uruguay observed that "he
understood the right of collective self-defense to refer not only to the Act of Chapultepec, but
also to any regional arrangement which might be established in the future." The Peruvian dele-
gate concurred. Id. at 681.
70. Id. at 682.
71. Id. at 681.
72. Id.; RUSSELL & MUTHER, supra note 62, at 704.
73. Doc. 576, supra note 63, at 682 ("The Delegate of New Zealand expressed apprehension
lest regional arrangements tend to produce conflict between regional groups. His delegation at-
tached primary importance to the supremacy of the world Organization.").
74. Doc. WD 224, CO/62 (2), 18 U.N.C.I.O. Docs. 273 (1945) (emphasis added) (proposal
by Mr. Robertson of Canada for a revision of the Text).
75. S.C. Res. 661, supra note 4.
tee. Instead it was referred to the Jurists Committee, 76 where it was

eventually rejected. 77 Consequently, the rejection of the proposed
changes supports the argument that defensive rights are ongoing and
do not cease upon simply any action of the Security Council, but only
upon those actions of the Security Council that explicitly terminate a
State's self-defense rights or several States' collective-security defense
78
rights.
D. The Influence of Regionalism

Thus, the determination of whether the U.S.-led Coalition forces
could have legally engaged in hostilities against Iraq after the Security
Council's imposition of economic sanctions, and absent any specific
Security Council authorization to do so, can be interpreted in accord-
ance with the meaning of Article 51 as delineated above. However,
future defensive use of force in other scenarios might not be taken by a
coalition of States or an individual State, but by other international
non-State actors - especially regional organizations. Thus, in order
to fully understand the self-defense rights granted in the Charter, these
rights with respect to regional organizations must be examined.
Moreover, an appreciation for the emphasis placed on regionalism
in the Charter also helps to understand more fully the Charter's in-
tended meaning of self-defense by distinguishing between regional de-
fensive action under articles in Chapter VIII and individual or
collective self-defensive action under Article 51. 79 Indeed, much of
76. Doc. WD 49, CO/21, 17 U.N.C.I.O. Docs. 25, 26 (1945) (Summary Report of Sixth
Meeting of Coordination Committee, Drafting Paper 25) ("A suggestion by Mr. Robertson [of
Canada] that paragraph 1 of Article 51 be amended... was referred to the Jurists Committee.").
77. Doc. WD 65, CO/31, 17 U.N.C.I.O. Docs. 393, 396 (1945) (Summary Report of Second
Meeting of Advisory Committee of Jurists, 1945) ("Messrs. Golunsky [of the U.S.S.R.] and
Hackworth [Chairman, of the U.S.] emphasized that this article had been agreed on with much
difficulty, and should be left so far as possible unchanged."). However, Mr. Robertson persisted
by submitting the resolution without identification as an article on June 16 (Doc. WD 353, CO/
140, 18 U.N.C.I.O. Docs. 365 (1945)) to the Coordination Committee. The Committee accepted
the following changes: "shall impair" for "impair"; "member of the Organization" for "member
state"; and the insertion of "by members" after "Measures taken." Doc. WD 435, CO/199, 17
U.N.C.I.O. Docs. 286, 287 (1945) (Summary Report of Thirty-Fifth Meeting of Coordination
Committee, 1945).
78. The framers' interpretation of Article 51 did not obviate the Security Council's right to
explicitly terminate a State's right of self-defense. See MOORE, supra note 3, at 88. Moore states:
But the passing of resolutions in a crisis, as in the Gulf crisis, is not automatically identical
either with having "taken measures necessary to maintain international peace and security"
in the first sentence of Article 51, or with a decision by the Council to take action prohibit-
ing further exercise of the right of individual or collective self-defense pursuant to the final
sentence of Article 51.
Id.
79. Indeed, Article 51 was drafted and approved before its placement in the Charter was
ascertained. The Committee debated whether to put the Article after Article 50 or to put it at
the end of Chapter VIII on Regional Arrangements. Although it was decided to place the Arti-
the original debate on the issue of collective or individual self-defense

incorporates reference to some form of regional entity.80 From a theo-
retical perspective, since regional action "is less likely to reflect special
interests than unilateral action, it would seem that regional action
should have broader latitude than unilateral action."8 1
Professor John Norton Moore elaborates the customary distinction
between the three types of regional organizations.8 2 The first type in-
clude the so-called functional organizations which focus "on regional
economic integration or transnational community-building, '8 3 such as
the European Economic Community; the second type include the
"postwar multilateral defense organizations created pursuant to Arti-
cle 51 of the Charter and focused on extraregional threats such as the
North Atlantic Treaty Organization"; 8 4 and the third type include
"the so-called genuine regional arrangements created pursuant to
Chapter VIII of the Charter and focused on intraregional threats,
meaning preeminently the Organization of American States but also
cle after Article 50, the fact the Committee considered placing it in Chapter VIII indicates that
the articles in Chapter VIII may have some bearing on the general concept of self-defense, and
consequently should be examined. See Coordinating Committee Drafting Paper 24, Chapter
VIII Maintenanceof Peace and Security, Final Text Adopted by Committee 111/4, May 24, 1945.
The Paper states:
The Secretariat believes that the paragraph should become an article in the CO/13 Arrange-
ment .... The question then is: should it follow Article 53 in the Arrangement (which is
what Committee 111/4 proposes), or should it follow Article 50 (which is what the U.S.S.R.
member of Committee 111/4 would prefer)? The Secretariat recommends that it follow Ar-
ticle 50.
Id.
80. Doc. 335, III/4/A/5, 12 U.N.C.I.O. Docs. 835-37 (1945) (Classification of Amendments
and Comments Relating to Chapter VIII, Section C, 15 May, 1945). The Sponsoring Powers
took the view that regional actions should be permitted without prior approval of the Security
Council "[flor measures to prevent renewed aggression by the present enemy states, until respon-
sibility for such measures is transferred to the Organization." France expanded the view of the
sponsoring powers and said regional action is permissible so long as an account of the measures
taken is given the Security Council; Turkey held that action could be taken for all regional ar-
rangements of a defensive nature, subject to an obligation to report measures taken to the Secur-
ity Council. These statements read in part:
Consequently, the Turkish Delegation earnestly desires the acceptance of regional arrange-
ments providing for automatic action as constituent elements of collective security, on con-
dition that they should be conceived for the exclusive purpose of defense and that the
signatory states which might have to avail themselves thereof should be required to report,
within the shortest possible time, to the Council on the emergency measures which might
have been compelled to take in carrying out these arrangements, as well as on the justifica-
tion of the urgency of the action.
Doc. 2 G/14(e), 3 U.N.C.I.O. Docs. 483 (1945).
81. John Norton Moore, The Role of Regional Arrangements in the Maintenanceof World
Order, in THE FUTURE OF THE INTERNATIONAL LEGAL ORDER 122, 163 (Cyril Black & Rich-
ard Falk eds., 1971).
82. Id. at 123.
83. Id.
84. Id. The U.S.-led Coalition in the Gulf Crisis was not a Chapter VII regional organiza-
tion as it was not geographically bound, and, consequently, was not designed to protect a region
from external threats.
Michigan Journal of InternationalLaw [V/ol. 13:336
including the Organization of African Unity and the Arab League." '8 5
Thus, because regional organizations have different natures, their
ability to use force in a defensive action may depend on the characteri-
zation of the regional organization. More specifically, because it is
difficult to argue that organizations that focus on regional economic
integration or transnational community-building should engage in the
use of force, the legality of engaging in hostilities may depend on
whether the regional arrangement is considered a defense organization
pursuant to Chapter VII and Article 51, or a genuine regional arrange-
ment created pursuant to Chapter VIII of the U.N. Charter. The
difference between the two characterizations is that Article 51 organi-
zations do not require Security Council authorization prior to the use
of force in defense,8 6 while Chapter VIII organizations may require
Security Council approval for the use of force in "enforcement
87
actions."
Given the framers' intent not to limit an individual State's right of
self-defense under Article 51 absent Security Council action terminat-
ing this right, 88 it seems logical that an Article 51 regional organiza-
tion's ability to engage in collective self-defense would not be limited
absent Security Council action terminating this ability. In fact, with
respect to Article 51 regional organizations, the most relevant issue is
not whether any defensive action taken by it would be legal, but
whether such action would be legal before an armed attack had ever
occurred.
Although it may appear that an arrangement is an Article 51 re-
gional organization, the vagueness of the definition of regional organi-
zations may leave an organization's classification in doubt. This
would occur where an organization is created as a defensive organiza-
tion, such as the North Atlantic Treaty Organization, but then devel-
ops nondefensive goals and concerns itself with interregional
conflict.8 9
85. Id. at 123-24.
86. By design, Article 51 organizations are merely formalized collective self-defensive ar-
rangements. Consequently, in the same way that an individual State does not require authoriza-
tion to use force in self-defense, these organizations do not require such authorization.
87. Article 53 of the U.N. Charter states, in part: "But no enforcement action shall be taken
under regional arrangements or by regional agencies without the authorization of the Security
Council .... " U.N. CHARTER art. 53.
88. See Moore, supra note 81, at 150 ("The Security Council would seem to have authority
under Articles 24, 25, 39, 51, 52, and 53 taken together, to revoke regional jurisdiction in the
handling of any issue affecting international peace and security."); supra text accompanying
notes 50-78.
89. As an Article 51 regional organization, the North Atlantic Treaty Organization focuses
on an extraregional threat. Conceivably, it could be argued that a similar organization which
focused on interregional conflict would lose its status as a Chapter VII regional organization.
However, a precise classification of an organization as either a

Chapter VII regional organization or a Chapter VIII regional organi-
zation may not be necessary if it is possible to show that defensive
action, absent specific Security Council termination of defense rights,
is legal regardless of the organization's classification. To explore this
possibility, it is necessary to examine the defense rights of Chapter
VIII regional organizations in a context similar to the Gulf Crisis.
Chapter VIII of the U.N. Charter implies that regional arrange-
ments are major instruments in the preservation of international peace
and security, and are legitimate and vital to the U.N. system. Most
importantly, the Charter, in Chapter VIII, legitimizes the right of re-
gional arrangements to engage in defensive action upon their own ini-
tiative. Article 52 states, in part:
Nothing in the present Charter precludes the existence of regional ar-
rangements or agencies for dealing with such matters relating to the
maintenance of international peace and security as are appropriate for
regional action, provided that such arrangements or agencies and their
activities are consistent with the Purposes and Principles of the United
Nations. The Members of the United Nations entering into such ar-
rangements or constituting such agencies shall make every effort to
achieve pacific settlement of local disputes through such regional agen-
cies before referring them to the Security Council. 90
This implies that Chapter VIII regional organizations may act on their
own initiative.
Furthermore, Article 53 limits regional organizational action by
granting the Security Council the power to utilize regional arrange-
ments, where appropriate, for enforcement action under its author-
ity. 91 A literal interpretation of the Article suggests that not only are
regional organizations empowered to act on their own initiative, but
they are empowered to continue to act on their own initiative until the
governments concerned abdicate this right to the Security Council of
the United Nations.
This interpretation coincides with interpretive remarks made with
regard to Article 52, on the nature of regional organizations. The Co-
lombian delegate stated:
If a dispute arises between two states which are members of a regional
organization, such controversy should be settled by peaceful means es-
tablished within the said organization. The obligation exists for all states
which are members of a regional organization to make every effort to
settle the controversy through this agency, and at the same time, the
obligation exists for the Security Council to promote these regional
90. U.N. CHARTER art. 52(1)-(2).

91. Id. art. 53(1).
peaceful settlements... There is and, therefore, can be no double juris-

diction or competence as between that of the Security Council... and
that of the regional organization. The Council should limit its action to
investigating ...any situation which may threaten
92
peace, and to promot-
ing the regional settlement of the problem.
Clearly, the intent of the Colombian delegate was to ensure that re-
gional organizations were not placed in a hierarchical position relative
to the United Nations. 93 The Security Council does not possess juris'
diction over issues that are governed by regional organizations. 94 The
onus for involving the Security Council in a dispute appears to lie with
the nations of the regional organization.
Additionally, amendments to the eventual Article 52 were pro-
posed indicating a preferred course of action if a dispute arose between
two or more States. 95 One such proposal clearly emphasized that re-
sort to a regional arrangement for dispute resolution was an alterna-
tive to approaching the Security Council, and that the former was the
preferred course of action. The amendment read:
The parties to any dispute the continuance of which is likely to endanger
the maintenance of international peace and security should obligate
themselves, first of all, to seek a solution by negotiation, mediation, con-
ciliation, arbitration or judicial settlement, resort to regional agencies or
arrangements,or other peaceful means of their own choice. The Security
Council should call upon the parties to settle their dispute by such
96
means.
The9 7intent of the amendment was eventually incorporated into Article
52.
The notion that regional arrangements are not placed below the
92. Doc. 576, supra note 63, at 686.

93. This would also appear to be the intent of the Government of Uruguay, which stated:
"The juridical systems of the world organization an [sic] the regional organizations must not
exclude or replace each other, but must be implemented and coordinated so as to strengthen the
rule of law." Doc. 24, p/8, 1 U.N.C.I.O. 305 (1945) (Verbatim Minutes of the Fourth Plenary
Session, Apr. 28, 1945).
94. For an excellent discussion of the jurisdictional dispute on the issue of primary jurisdic-
tion between regionalism and universalism, see generally Moore, supra note 81. Professor Moore
notes that "[t]here is surprisingly little discussion in the literature of regional arrangements con-
cerning criteria for optimum allocation of authority between regional and universal security or-
ganizations." Id. at 135. He further notes that "[wihat discussion there is focuses on a choice
between international organization based on either regional arrangements or a universal organi-
zation rather than an optimum allocation of authority between regional and universal organiza-
tions in a system made up of both." Id. at 135 n.20.
95. Doc. 510, supra note 62, at 634.
96. Id. (emphasis added).
97. The pertinent paragraphs of Article 52 for this discussion read:
2. The Members of the United Nations entering into such arrangements or constituting
such agencies shall make every effort to achieve pacific settlement of local disputes through
such regional arrangements or by such regional agencies before referring them to the Security
Council.
3. The Security Council shall encourage the development of pacific settlement of local
Security Council in some form of hierarchy is even clearer when con-

sidering the rejection of the New Zealand proposal to amend the Arti-
cle.98 New Zealand submitted an amendment to Chapter VIII,
Section C, Paragraph 1 which called for the substitution of the words
"are approved by the Organization as being consistent with its pur-
poses and principles" for the words "are consistent with the purposes
and principles of the Organization" in the first sentence of the Arti-
cle. 99 The effect of this proposal would have been to place regional
arrangements in a secondary position to the Security Council, with the
Security Council effectively granting legitimacy to such arrangements.
The Subcommittee unanimously recommended, however, that this
amendment be rejected.100 It was the general opinion of the members
of the Subcommittee that an approval requirement for regional ar-
rangements would cause delay in their formation and cripple their
proper functioning.101 France expressed such a concern most
succinctly:
The French Government is of the opinion that it is incompatible with the
conditions of security of some States, which demand immediate action,
to defer, until such time as the Council has reached a decision, emer-
gency measures for which provision is made, in the case of contingencies,
by treaties of assistance concluded between02
Members of the Organiza-
tion and filed with the Security Council.'
disputes through such regional arrangements or by such regional agencies either on the
initiative of the states concerned or by reference from the Security Council.
U.N. CHARTER art. 52(2)-(3).
The recommendation of the eventual language of Article 52 is recorded in Doc. 533, 111/4/
A/9, 12 U.N.C.I.O. Docs. 848, 851 (1945) (Interim Report to Committee III/4 by Subcommittee
III/4/A on the Amalgamation of Amendments, Submitted by the Rapporteur, Dr. V. K. Wel-
lington Koo (China), Restricted) [hereinafter Doc. 533]. This report states:
[Tihe Subcommittee makes the following recommendations to the Committee by unanimous
vote, with the single exception as to a procedural matter indicated below under item 2:
3. That the language of Chapter VIII, Section C, Paragraph I of the Dumbarton Oaks
Proposals be amended [to read] ... consistent with the purposes and principles of the Or-
ganization. The member states comprising such agencies or entering into such arrangements
should make every effort to achieve peaceful settlement of local disputes through such agencies
or arrangementsbefore referring them to the Security Council.
Id at 849.
98. Doc. 533, supra note 97, at 851.
99. Id. Note also that Australia proposed that self-defense action, whether regional or other-
wise, should become permissible after failure of the Security Council to authorize such action or
to take action itself. Doc. 335, III/4/A/5, 12 U.N.C.I.O. Docs. 837 (1945) (Classification of
Amendments and Comments Relating to Chapter VIII, Section C, 15 May 1945).
100. Id.
101. Id. ("It is the sense of the Subcommittee that any requirements for approval of regional
arrangements by the General Organization before they become operative might cause an unnec-
essary delay in the functioning of such regional arrangements.").
102. Doc. 269, 111/4/5, 12 U.N.C.I.O. Docs. 777 (1945) (Amendments of 14 May 1945);
Doc. 2, G/7(o), 3 U.N.C.I.O. Docs. 376 (1945) (Statement of the Ministry of Foreign Affairs of
the French Republic of March 21, 1945). So clearly did France perceive the need to guarantee
France suggested that the circumstances of individual cases could not

permit waiting for Security Council action, as required by the New
Zealand proposal. Consequently, the rejection of the New Zealand
proposal can be viewed as affirmation of the right of self-defense that
could be exercised without approval of the Security Council.
Further elucidation of framers' remarks pertaining to the intention
of Articles 52 and 53 lend credence to this interpretation, which per-
mits legitimate, ongoing defensive efforts. When the Charter was be-
ing debated, France was fearful that U.S. explanations of the intent of
the self-defense Article would limit defensive action only to countering
armed aggression and that the paragraph might not clearly indicate
that France could still legally take preventive action against Germany
under the assistance treaties even after the Security Council took over
03
responsibility.1
To assuage French concerns, the United States suggested a modifi-
cation in the wording of future Article 53. It suggested the replace-
ment of "by consent of" with the current "on request of" the
governments concerned, thereby leaving the onus on the defensive ar-
rangements to abdicate authority to the Security Council.10 4 Addi-
tionally, the United States declared that the future Article 53 provided
an exception to the rule of enforcement action requiring Security
Council authorization, and that in the context of World War II, the
Article made "sure that there would be no lapse in arrangements for
the permanent control, permanent disarmament, and permanent de-
militarization of the enemy states."10 5
France, in a more general statement declared that Article 53 "in
no way impaired the right of self-defense against armed attack and
guaranteed that action could be taken under regional arrangements for
dealing with enemy states until the Security Council assumed respon-
sibility." 10 6 For purposes of the Charter's treatment of the issue of
self-defense, it is important to recognize that France, a sponsoring
power of the Dumbarton Oaks Proposals, held that defensive action
was permitted until the Security Council assumed responsibility. As-
the right of unrestricted self-defense, that they proposed an addition to what was to become the
second paragraph of Article 52, which requires Member States to make every effort to achieve
pacific dispute resolution via regional arrangements or by referring them to the Security Council.
The proposal suggested the following addition: "Nevertheless, an exception is made to this rule
in the case of the application of measures of an urgent nature provided for in treaties of assistance
concluded between members of the Organization and of which the Security Council has been
advised." Doc. 269, 111/4/5, 12 U.N.C.I.O. Docs. 777 (1945) (Amendments of 14 May 1945).
104. Id. at 708.
105. Id. at 709.
106. Id.
suming responsibility is much more important than merely taking re-

sponsive action.
Furthermore, when what was to become Article 53 was being de-
bated, Senator Vandenberg stated: "Nothing in the paragraph under
consideration impaired in any way the force of the provisions regard-
ing regional organization ... [nor] detracted... from the force of the
reservation... [on] the right of self-defense." 10 7 This statement made
clear that the Security Council's apparent monopoly on authorizing
enforcement action has an exception and that such authority was in no
way meant to diminish the right to self-defense. As Russell and
Muther point out, the statement "was considered so important that
Colombia, France, and Venezuela wanted it inserted in the rap-
porteur's report; Bolivia asked that it be accepted as an official com-
mittee interpretation; and Mexico, Belgium, and Czechoslovakia
' °
spoke approvingly of it. 108
The only limitation to the use of force by regional organizations in
Chapter VII involves the use of regional arrangements for enforce-
ment action."°9 Under Article 53, the use of force by a regional organ-
ization in an enforcement action requires Security Council
approval."10 Thus, in a context similar to the Gulf Crisis, if any use of
force by a Chapter VIII regional organization were to be construed as
enforcement action, such action would be illegal absent Security
Council approval.
Unfortunately, the meaning of "enforcement action" is dis-
puted." ' One interpretation defines it as all coercive action by any
modality; another defines it only as that action which is obligatory on
2
Member States as opposed to action which is merely recommended."
Thus, this ambiguity makes it difficult to ascertain, before a regional
organization takes defensive action, whether such action will be con-
sidered legal. However, when a regional organization takes the place
107. Id. at 710.

108. Id.
109. Article 53 states, in part: "The Security Council shall, where appropriate, utilize such
regional arrangements or agencies for enforcement action under its authority. But no enforce-
ment action shall be taken under regional arrangements or by regional agencies without the ad-
thorization of the Security Council." U.N. CHARTER art. 53(1) (emphasis added).
110. See Moore, supra note 81, at 152. Moore states that
[c]laims to use the military instrument other than in response to an "armed attack," or
arguably other than in response to a broader inherent defensive right, raise questions both of
whether such action is "enforcement action" requiring Security Council approval and
whether such action is otherwise consistent with the Charter.
Id.
I11. Id.
112. Id.
of the Coalition in a context similar to the Gulf Crisis, the problem is

not at issue as it is generally recognized that the United Nations sup-
ports a "narrow definition of 'enforcement action' "113 that does not
include nonmilitary measures such as economic sanctions or the sever-
ing of diplomatic relations,"14 nor valid defensive action."1 5 Thus, be-
cause any action taken by a Chapter VIII regional organization in a
context similar to the Gulf Crisis, where the Security Council had not
yet taken action authorizing the use of force under Article 42, would
have been defensive action to protect a victim's rights against the ag-
gressor, there is no question that this action would be classified as de-
fensive in nature and therefore not subject to the requirement of
16
Security Council approval."
Thus, if a regional organization is a Chapter VIII regional organi-
zation, the above analysis demonstrates that any defensive use of force
engaged in by the organization absent Security Council authorization
would be legal. Consequently, because any potential defensive re-
sponse by the organization would be legal, it does not matter whether
the organization is classified as a Chapter VII or Chapter VIII re-
gional organization. This assumes that the organization is either a
Chapter VII or a Chapter VIII regional organization. However, a
problem may arise if the organization is neither a Chapter VII nor a
113. Id. at 158.

114. Id. Moore claims that
[c]ollective nonmilitary sanctions, such as severing diplomatic relations or taking coercive
economic measures, do seem to involve more than unilateral state action. As such, the
principle that what states are free to do individually they may also do collectively may
sometimes be as coercive as military sanctions, particularly if instituted by a multi-national
initiative. United Nations practice, however, seems to support a narrow definition of "en-
forcement action" which does not include nonmilitary measures.
Id.
115. Id. at 154. Professor Moore states that "i]nits broadest formulation 'enforcement ac-
tion' refers to all coercive action other than valid defensive action." Id.
116. Professor Moore identifies the real issue of Chapter VIII regional action in defense of
armed attack:
[I]t is clear that regional action in defense of armed attack is permissible. As such, the
major controversies concerning defensive action by regional arrangements center on the
meaning of armed attack, particularly in relation to external involvement in internal con-
flict, and whether valid defensive action is limited to situations in which there is a prior
armed attack.
Id. at 151. Although the issue of deciding whether there is a prior armed attack may be relevant
in future evaluations of regional action, there is no question among scholars of the nature and
illegality of Iraq's attack on Kuwait. Arend, supra note 11, at 35 ("The reaction seems to indi-
cate a strong perception on the part of the international community that uses of force for pure
territorial aggrandizement are impermissible."); Schachter, supra note 9, at 453 (stating that the
action of Iraq was clearly a violation of Article 2(4) and an act of aggression); JOHN NORTON
MOORE, CRISIS IN THE GULF: ENFORCING THE RULE OF LAW (manuscript at 17) (May 23,
1991 draft) (forthcoming 1992) ("Iraq's blitzkrieg invasion and attempted annexation of Kuwait
and related Iraqi actions in the Gulf crisis stand in profound opposition to the rule of law. These
Iraqi actions were unlawful under at least seven major categories of legal obligations central to
the rule of law in the international system.").
Chapter VIII organization, but an organization of the first type - an

organization with a founding purpose of focusing on regional eco-
nomic integration or transnational community building. Thus, it be-
comes imperative to ascertain the meaning of "regional organizations"
as intended by the framers to be assured that Charter provisions per-
taining to defensive action are not meant to be applied to organizations
of the first type.
E. Definitional Considerations
At the time of the Charter's approval, two competing theories of
the definition of regional arrangements were presented. The more re-
strictive interpretation was offered by Egypt, which sought to restrict
the status of regional arrangements to 1) organizations, 2) of a per-
manent nature, 3) which were linked geographically, and 4) which
were linked culturally.11 7 Furthermore, Egypt proposed an amend-
ment advocating that alliances of a military character should not be
considered regional arrangements.' 1 8 Such a restrictive definition of a
regional arrangement was designed to thwart the formation of bal-
ance-of-power arrangements, thereby eliminating the alliances that
had brought forth both world wars.
In contrast to the Egyptian proposal, France proposed a more lib-
eral definition of a regional arrangement." 9 To France, the require-
ments of the Egyptian proposal would unnecessarily burden
implementing the right of self-defense. The French delegate stated:
As for solidarity, it is the very essence of collective security. But it can-
not manifest itself in identical forms in all instances. There are States
between which a more direct tie is created by the nearness of the same
danger. On the other hand, there are others whose cooperation, while
equally indispensable, can make itself felt only after an interval, because
of their remoteness. The machinery adopted must be conceived with suf-
ficient flexibility to take into account these various situations. The first-
mentioned States must be in a position to conclude, as between them-
selves, treaties of assistance which provide that the danger be met with
immediate counter-measures. In the case of the latter, slower procedures
117. The Egyptian proposal suggested the addition of the following to the end of the eventual
Article 52:
There shall be considered as regional arrangements organizations of a permanent nature
grouping in a given geographical area several countries which, by reason of their proximity,
community of interests or cultural, linguistic, historical or spiritual affinities, makes them-
selves jointly responsible for the peaceful settlement of any disputes which may arise ... as
well as for the safeguarding of their interests and the development of their economic and
cultural relations.
Doc. 533, supra note 97, at 850-51; Doc. WD 70, II/4/A/l1, 12 U.N.C.I.O. Docs. 857 (1945).
118. Doc. 335, III/4/A/5, 12 U.N.C.I.O. Docs. 836-37 (1945) (Classification of Amend-
ments and Comments Relating to Chapter VIII, Section C, 15 May, 1945).
119. Doc. 269, 111/4/5, 12 U.N.C.I.O. Does. 777 (1945) (Amendments of May 14, 1945).
can be envisaged. However, the treaties of assistance must in no case be

considered as constituting violations of collective security when, on the
contrary, they constitute the primary elements of that security.1 20
The French statement implies a definition of regional arrangements
that may consider some of the Egyptian-proposed elements, but does
not require their satisfaction. The French definition permits a victim
State to take action unilaterally until a regional organization makes its
presence known.
This definition is presented by default. By finding fault with the
Egyptian proposal and the ability to enforce it, France implied an
amorphous definition of "regional arrangements." Specifically with
regard to Egypt's proposed rejection of military alliances as being re-
gional arrangements, the French protested that:
the Franco-Soviet and Anglo-Soviet pacts, for example, should not be
considered "purely military," as they contained economic provisions;
moreover, they were for twenty-year periods, subject to renewal, so they
were "of a potentially permanent nature." It was therefore impossible to
draw any clear demarcation between "regional agreements and pacts of
2
mutual defense."' 1
By demonstrating that the acceptance of the proposed narrow defini-
tion of regional arrangements would result in too many questions as a
result of the proposal's imprecision, France won an apparent victory
as the Egyptian proposal was never considered by the full
22
Committee.
Further clarification of the definition of a regional arrangement is
found in the recorded dialogue between Mr. Golunsky of the Soviet
Union and Mr. Hackworth of the United States. 23 The "Summary
Report of the Second Meeting of the Advisory Committee of Jurists"
indicates that with regard to the eventual Article 52:
Mr. Golunsky [U.S.S.R.] requested an explanation of the meaning of the
word "arrangements" which, he stated, could be translated into Russian
in several different ways. Mr. Hackworth [U.S.] expressed the view that,
in this instance, the word "arrangements" referred to the Act of Chapul-
124
tepec, and was therefore equivalent to "agreement."'
Consequently, any agreement between two States could qualify as a
regional arrangement justifying participation in a collective defense
120. Id. at 777-78.

122. Doc. 533, supra note 97, at 850-51. The Egyptian amendment was considered new and
transferred to the Executive Committee. RUSSELL & MUTHER, supra note 62, at 705-06.
123. Doc. WD 65, CO/31, 17 U.N.C.I.O. Docs. 397 (1945) (Summary Report of Second
Meeting of Advisory Committee of Jurists, May 31, 1945, Restricted).
124. Id.
effort. 125
What appears to result from the dismissal of the Egyptian proposal
is a definition by default - a definition that is completely amorphous
and appears to permit any amalgamation of States to qualify as a re-
gional arrangement. Indeed, Soviet statements distinguished the
Egyptian proposal from the French and seem to indict all interpretive
remarks as being unilateral and therefore not binding.' 26 The situa-
tion apparently preferred by the Soviets allows imprecision in the
drafting and relies on future application of the Charter in order to
determine the accepted meaning of the Charter provisions.
Thus, because regional organizations are not limited to geographic
areas, and because the definition appears to have been intentionally left
amorphous, there is no evidence in the preparatory documents of the
U.N. Charter to limit any regional organizations with respect to the
exercise of defense rights under either Chapter VII or Chapter VIII.
Any such limit would be apparently self-imposed and set out in an
organization's mission statement.
F. The Framers' Intent: Concluding Remarks

Given the framers' intent to permit ongoing defensive action, it
seems that the Secretary General and Professor Chayes were wrong in
their assertion that Kuwait and its allies could take no defensive action
involving the use of force unless Iraq took additional aggressive action.
However, it is possible that, the framers' intentions notwithstanding,
Article 51 may have been applied in practice to comport with the in-
terpretation that any action by the Security Council obviates an indi-
vidual right of self-defense. Consequently, a brief examination of the
125. Indeed, this appears to be the justification for the legitimacy of the North Atlantic
Treaty Organization (NATO). When the legality of NATO was being debated by the General
Assembly, the Soviet Union submitted a draft resolution (G.A. (VI), Annexes, a.i. 67, at 2, U.N.
Doc. A/C. 1/698 (1948)) which declared participation in NATO incompatible with membership
in the United Nations. 2 U.N. SECRETARY GENERAL, REPERTORY OF PRACTICE OF THE
UNrrED NATIONS ORGANS, ARTICLES 23-54 OF THE CHARTER 431, U.N. Sales No. 1955.V.2
(1955). This draft resolution was rejected by the General Assembly. U.N. GAOR, 6th Sess.,
363rd plen mtg., para. 140. Although the Soviet Union and its supporters argued that the North
Atlantic Treaty
was not compatible with Article 51 and was contrary to the provisions of Articles 52 and 53
regarding regional arrangements, the States signatories to the Treaty, as well as a number of
other representatives, argued that it was in conformity with the right of collective self-de-
fence as set forth in Article 51.
2 U.N. SECRETARY GENERAL, supra, at 431. Thus, despite a lack of geographic consistency and
the presence of a military objective, the majority of States approved the legality of NATO as a
regional arrangement for the purposes of Articles 52 and 53.
126. The Soviet delegate stated "as the Conference has neither considered nor studied ques-
tions bearing on the Act of Chapultepec and the Pan-Arab Union, unilateral statements similar
to those made by the Latin American representatives as well as by the representative of Egypt
cannot commit the Conference in any way." RUSSELL & MUTHER, supra note 62, at 711.
Article's application since the ratification of the Charter may shed

more light on the true meaning of Article 51 and self-defense.
III. APPLICATION OF ARTICLE 51

In the Gulf Crisis, the Security Council for the first time recog-
nized in a resolution that the right of collective self-defense applied in
a particular situation. 127 During the forty years separating the Korean
War 28 and the Gulf Crisis, the Security Council authorized the use of
force under Chapter VII only once. 129 Because no counter to the anal-
ysis in Part I was ever raised in that instance, there are no instances of
Security Council action prior to the Gulf Crisis in which the intent of
the framers was rejected, and consequently no precedent for the notion
that a State or regional organization must gain Security Council ap-
proval for defensive use of force after the Security Council has taken
initial action short of terminating a self-defense or collective-defense
right.
Furthermore, although during the first ten years of the United Na-
tions' existence Article 51 was frequently mentioned in the Security
Council, an application or interpretation of Article 51 was involved
only in one case, a decision calling upon Egypt to terminate restric-
tions on the passage of ships through the Suez Canal. 30 Nevertheless,
the General Assembly made specific reference to the Article in the
"Uniting for Peace" Resolution,' 3' and in the "Development of a 20-
year programme for achieving peace through the United Nations"

128. U.N. action in the Korean War was based on the Security Council exercising its author-
ity under Article 42 of the Charter and did not involve the exercise of rights under Article 51.
129. Chayes, supra note 35, at 12. Chayes states:
In the forty years between Korea and the Gulf Crisis, the Security Council authorized the
use of force under Chapter VII only once. In 1965, when Southern Rhodesia announced its
Unilateral Declaration of Independence from the United Kingdom, the Council condemned
the move and imposed economic sanctions. Flag-of-convenience tankers attempted to de-
liver oil to Beria, Mozambique for transhipment by pipeline to Rhodesia in violation of the
sanctions. The United Kingdom sought authorization for its naval forces to intercept and
turn them back.
Id. The Security Council, after determining "that the resulting situation constitutes a threat to
the peace," then
Call[edJ upon the Government of the United Kingdom . . . to prevent, by use of force if
necessary, the arrival in Beria of vessels reasonably believed to be carrying oil destined for
Southern Rhodesia, and empowers the United Kingdom to arrest and detain the tanker
known as Johanna V upon her departure from Beria in the event her oil cargo is discharged
there.
S.C. Res. 221, U.N. Doc. S/RES/221 (1966).
130. 2 U.N. SECRETARY GENERAL, supra note 125, at 429.
131. G.A. Res. 377(V), U.N. GAOR, 5th Sess., Supp. No. 20, at 10, U.N. Doc. A/1775
(1950).
Resolution. 132 Additionally, express reference to Article 51 was made

in the "First Report of the Atomic Energy Commission to the Security
133
Council."
These early references to the Article form the foundation of the
Article's interpretation. Beyond the first ten years of the Charter's
existence, no conclusions resulting from international practice further
refine the interpretations of the framers' intentions. Consequently, the
examination of early applications of the Article is sufficient to deter-
mine if interpretation has remained consistent with the framers' intent,
or if some other interpretation has been espoused. Given the nature of
international law, the development of precedent, and the lack of Secur-
ity Council action in this sphere over the past forty years, one may
assume that the Article's early interpretation comports with the inter-
pretation of the majority of modern States.
As mentioned above, during the first ten years of the U.N.'s his-
tory, application or interpretation of Article 51 occurred in only one
instance.1 34 On July 11, 1951, Israel submitted to the United Nations
the item "Restrictions imposed by Egypt on the passage of ships
through the Suez Canal." 135 The representative of Egypt invoked Ar-
ticle 51 as justification for restricting the passage of goods bound for
Israel through the Suez Canal. 136 Response attacking the Egyptian
position maintained that 1) self-defense was restricted to cases of
armed attack, 2) the right was limited in time until the Security Coun-
cil had taken action, and 3) Egyptian action did not meet the condi-
tions of Article 51.137
The second response indicates on its face that some States held an
opinion similar to that of the Secretary General. However, unless the
context of the response is addressed directly, it is difficult to assess
both the meaning of this response and the degree to which it was es-
132. G.A. Res. 494(V), U.N. GAOR, 5th Sess., Supp. No. 20, at 79, U.N. Doc. A/1775
(1950).
133. AEC (Atomic Energy Commission), No. 10, 10th mtg., at 164 (adopted by the AEC by
10 votes to none, with two abstentions).
134. See supra notes 128, 129, and accompanying text. Although the Security Council did
not explicitly apply or interpret Article 51 in the July 7, 1950, resolution in connection with the
"Complaint of aggression upon the Republic of Korea," the resolution used language that may
be pertinent to the correct interpretation of the Article. The resolution welcomed the "prompt
and vigorous support which governments and peoples of the United Nations have given to its
resolutions of 25 and 27 June 1950 to assist the Republic of Korea in defending itself against
armed attack." S/1588, same text as S/1587, see GA(V), Supp. No. 2, at 25, 26; 2 U.N. SECRE-
TARY GENERAL, supra note 125, at 430 n.5. The resolution can be interpreted as implying the
right of collective and individual response to aggression concurrent with Security Council action.
135. S/2241, at 9, 10 (July 12, 1951).
136. 2 U.N. SECRETARY GENERAL, supra note 125, at 432.
137. Id.
poused by the several Member States. Consequently, it is necessary to

examine the draft and final resolutions of the Security Council to de-
1 38
termine the accepted interpretation of Article 51 at that time.
During the Security Council debates on the issue, on August 16,
1951, a joint resolution was submitted by the United States and the
United Kingdom requesting the Security Council to find that "the
practice [of 'interfering with the passage' through the Suez Canal of
goods destined for Israel] cannot in the prevailing circumstances be
justified on the ground that it is necessary for self-defence."'' 39 This
resolution implies an additional constraint on self-defense, that of the
jus in bello requirement of necessity.
This requirement of necessity for actions justified as self-defense
was given legitimacy in the passage of the final resolution on the cri-
sis. 14 More importantly, the final resolution indicated that States
must have the status of a belligerent to claim rights under Article 51.
The resolution reads in part:
Considering that since the armistice r6gime, which has been in existence
for nearly two and a half years, is of a permanent character, neither
party can reasonably assert that it is actively a belligerent or requires to
exercise the right4 of visit, search, and seizure for any legitimate purpose
of self-defence.' 1
The resolution does not make precise the meaning of the clause in
Article 51 "until the Security Council takes action" - the core query
of this article's analysis. With regard to this point, the resolution aids
neither side of the debate. However, to some extent, this resolution
can be read so as to comport with either conflicting interpretation of
Article 51.
On the one hand, although the U.S.-U.K.'resolution was proffered
138. It is understood that an examination of any Security Council resolution does not neces-
sarily indicate the majority opinion of the United Nations General Assembly as the Security
Council is comprised of 10 rotating members in addition to the five permanent members (at the
time of the resolutions examined above, Security Council membership stood at 11) and the Gen-
eral Assembly is comprised of 159 members. Nevertheless, because all Security Council resolu-
tions require the consensus or abstention of the five permanent members, a resolution is at least
indicative of the opinion of the major or leading Members of the United Nations. See LELAND
M. GOODRICH ET AL., CHARTER OF THE UNITED NATIONS 230 (3d ed. 1969) ("[Plermanent
members ...have frequently abstained voluntarily in the voting where no obligation to abstain
exists, and have been willing that this abstention should not be interpreted as a lack of concur-
rence, or as constituting a 'veto.' "). Consequently, examination of the resolutions with regard to
the Egyptian action in the Red Sea should indicate clearly the interpretation of Article 51 as
perceived by the five permanent members, and, given the politics of decision-making, probably
indicate the majority opinion of the General Assembly.
139. Id. at 433 n. 10 (Security Council minutes of the 552d meeting on Aug. 16, 1951).
140. S/2298/Rev.l (Sept. 1, 1951) ("Furtherfinds that the practice cannot in the prevailing
circumstances be justified on the ground that it is necessary for self-defense.").
141. Id.; 2 U.N. SECRETARY GENERAL, supra note 125, at 433.
during an armistice regime and not at a time when a sovereign State's

territory was occupied after an illegal aggressive attack, the resolution
may be read as establishing some general principles with respect to the
application of Article 51, and as agreeing with the Secretary General's
and Professor Chayes's interpretations. The resolution seems to imply
that after some period of time, an absence of a continual exercise of
self-defensive action removes one's right to act in self-defense and re-
quires a resumption of aggression to permit further defensive action.
A specific period of time of relative peace may negate one's belligerent
status.
On the other hand, the resolution may be read as contradicting the
above interpretation. It is plausible to read the resolution as giving
any State the ability to take defensive action as long as the action is
necessary and the State maintains the status of belligerent. Conse-
quently, this reading of the resolution depends on the definition of
"belligerent."
The term "belligerent" is commonly used to refer to
either of two nations which are actually in a state of war with each other,
as well as their allies actively co-operating, as distinguished from a na-
tion which takes no part in the war and maintains a1strict
42 indifference as
between the contending parties, called a "neutral."
In the case of the Gulf Crisis, Iraq and Kuwait were clearly "in a state
of war" when Iraq invaded Kuwait in early August 1990. However,
the Secretary General's remarks concerning the applicability of Article
51 imply that because Iraq swiftly took control of Kuwait entirely,
and because no armed, aggressive response was immediately under-
taken by Kuwait or its allies, Kuwait and Iraq were no longer at war.
Consequently, according to the above definition, Kuwait should not
have been considered a belligerent.
However, a more complete definition of the term "belligerent" in-
cludes more than merely a State at war. 14 3 Indeed, within the context
of determining whether an insurgent group should be given belligerent
status, Lauterpacht identifies four conditions as prerequisites:
[F]irst, there must exist within the State an armed conflict of a general
...character; second, the insurgents must occupy and administer a sub-
stantial portion of national territory; third, they must conduct the hostil-
ities in accordance with the rules of war and through organized armed
142. BLACK'S LAW DICTIONARY 141 (5th ed. 1979); see also RANDOM HOUSE DICTIONARY
OF THE ENGLISH LANGUAGE (Unabridged) 191 (2d ed. 1987) (definition five is "a state or a
nation at war").
143. Most common discussion of belligerent status focuses on the question of whether insur-
gencies and insurgent groups should be given belligerent status. For an excellent collection of
various opinions on this question, see B.H. WESTON ET AL., INTERNATIONAL LAW AND
WORLD ORDER 281-300 (1980).
forces acting under a responsible authority; fourthly, there must exist

circumstances which make it necessary for outside States to define their
attitude by means of recognition of belligerency. 144
Lauterpacht further asserts that "[i]f these conditions are not satisfied,
then it is premature to grant belligerent rights to either warring fac-
tion. Once they are met, however, then it is arguable that it is inter-
145
vention to refuse recognition of the insurgency as belligerency."'
Given this definition, and accepting its tenets for States as well as
insurgency groups, because Kuwait no longer maintained control over
any part of its territory, it could not be considered a belligerent State
and the Secretary General's position would prevail. This interpreta-
tion of "belligerent" seems to concur with an initial consultation of the
Restatement of the Foreign Relations Law of the United States, which
defines a State thus: "Under international law, a state is an entity that
has a defined territory and a permanent population, under the control
of its own government, and that engages in, formal relations with other
such entities." 146 On its face, the Restatement indicates that unless a
government controls its territory, it is not a State and is therefore inca-
pable of being a belligerent.
For many centuries, this traditional interpretation was applied to
vanquished States. Summarizing the ancient through nineteenth cen-
tury approach to belligerent occupation, Graber writes:
From ancient times on, through the Middle Ages, and up to the nine-
teenth century, when a belligerent occupied territory belonging to his
adversary, he was usually considered the absolute owner of the occupied
lands.... He could even before the war was decided 47
dispose of the terri-
tory by annexing it or ceding it to a third state.1
Thus, unless the international norm changed in the twentieth century,
the Kuwaiti government's claim of belligerent status and subsequently
its claim to sovereignty over its occupied territory would be moot.
This is also stated by Henkin, Pugh, Schachter, and Smit, who declare:
"When governments-in-exile do not exercise stable control over terri-
tory in the country, they are not entitled under customary interna-
148
tional law to belligerent status."'
However, even though the above arguments imply Kuwait had lost
144. Id. at 286.

145. Id.
146. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 201 (1987) (emphasis added).
147. DORIS A. GRABER, THE DEVELOPMENT OF THE LAW OF BELLIGERENT OCCUPATION,
1863-1914, at 13 (1968) (emphasis added); see also JOHN NORTON MOORE ET AL., NATIONAL
SECURITY LAW 348 (1990).
148. LOUIS HENKIN ET AL., INTERNATIONAL LAW, CASES AND MATERIALS 265 (2d. ed.
1987).
its belligerent status after the Iraqi invasion, there are strong reasons
to suggest that despite a complete loss of control over its territory,
Kuwait remained a belligerent State. 149 It is important to recall that
developments in international law create exceptions to the line of rea-
soning outlined above. Significantly, comments to section 201 of the
Restatement indicate such an exception. 150 Though recognizing the
possibility of aggressive actions of one State leading to recognized non-
belligerent status of another, 15 as erroneously implied for the Iraq-
Kuwait situation of early November 1990 by the Secretary General,
52
section 202 of the Restatement stresses that this is a rare occasion.'
Most importantly, international treaties abandon traditional views
of belligerent occupancy for cases in which the occupancy results from
a use of force in violation of the United Nations Charter.153 The Dec-
laration on Principles of International Law Concerning Friendly Rela-
tions and Co-operation Among States in Accordance with the Charter
of the United Nations' 54 dictates that States not recognize or accept a
"territorial acquisition resulting from the threat or use of force."' 55
Consequently, because the Iraqi invasion was considered a violation of
international law,' 56 Kuwait could not lose its status as a State and so
should have been considered a belligerent.
Thus, the Security Council resolution that was passed in 1951 with
regard to Egypt's actions toward the Suez Canal cannot be interpreted
to comport with the Secretary General's viewpoint. First, the 1951
scenario involved an armistice regime, not an illegal aggressive occu-
149. Id. Henkin, Pugh, Schachter, and Smit state:

Nevertheless, the Algerian Provisional Government and others have claimed such status
and have received support for their claim. See Bedjaoui, Law and the Algerian Revolution
180 (1961). In 1970, Prince Sihanouk, who had been ousted as head of state in Cambodia,
formed a government-in-exile in [Beijing] which was recognized by China and by North
Vietnam immediately. For an argument in favor of such recognition, see Barnes, U.S. Rec-
ognition Policy and Cambodia in The Vietnam War and International Law, col. 3, 149, 156
(Falk ed., 1972).
Id.
150. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 201 cmt. c (1987) ("An entity does not necessarily cease to be a state even if all of its territory
has been occupied by a foreign power or if it has otherwise lost control of its territory
temporarily.").
151. Id. § 202, reporter's note 5 ("Some states, particularly after a lapse of time, have been
willing to accept a fait accompli.").
152. Id. ("The number of entities acquiring the characteristics of statehood allegedly
through violation of law has not been large.... On a few occasions, the United Nations Security
Council, or perhaps the General Assembly, might resolve the question.") (emphasis added).
153. Id.
154. G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/RES/
2625(XXV) (1970), reprinted in 65 AM. J. INT'L L. 243 (1970).
155. Id.
156. S.C. Res. 660, supra note 2.
Michigan Journal of InternationalLaw [V/ol. 13:336
pation. Second, the 1951 scenario is easily distinguished in terms of

the time frame involved. The most generous argument, and one that is
arguably specious, is that any time period greater than two and one-
half years without some form of continual defensive response may re-
sult in the loss of belligerent status for both parties to a conflict. How-
ever, the entire Gulf Crisis itself never even approached such a
timespan.
Because the 1951 Security Council resolution fails to present clear
evidence that the framers' intent of an ongoing right of self-defense
under Article 51 has been countermanded or overturned, examination
of other applications of Article 51 is still required to determine
whether there is any force to the positions of the Secretary General
and Professor Chayes.
In addition to Security Council interpretations of Article 51, the
General Assembly also took measures to apply the Article and define
it through this application. The "Uniting for Peace" resolution 57 ap-
pears to indicate that defensive action is permitted concurrently with
actions by other international bodies. In paragraph 8, it is recom-
mended that Member States maintain units that could promptly be
made available as part of U.N. units.' 58 These national units would be
available "without prejudice to the use of such elements in exercise of
the right of individual or collective self-defense recognized in Article
51 of the Charter."' 59
Furthermore, paragraph 11 of the resolution establishes a Collec-
tive Measures Committee responsible for studying and recommending
methods "which might be used to maintain and strengthen interna-
tional peace and security in accordance with the Purposes and Princi-
ples of the Charter, taking account of collective self-defense and
regional arrangements."'' 60
Proponents of a theory of an ongoing right of self-defense can ar-
gue that the action of the General Assembly indicates valid world per-
ception of the proper interpretation of Article 51. However, this
resolution is also inconclusive as it applies only in the few instances of
international strife where the Security Council has been made impo-
tent by the veto of one of the permanent members.' 6' Because Article
51 states that self-defensive action is permissible "until the Security
157. G.A. Res. 377(V), supra note 131.

158. Id.
159. Id.
160. Id.; 2 U.N. SECRETARY GENERAL, supra note 125, at 430.
161. G.A. Resolution 377(V), supra note 131.
Council has taken measures,"' 62 justification of action under the

"Uniting for Peace Resolution" does not provide much interpretive
guidance as the resolution is only applicable when the Security Coun-
cil does not act. What the resolution emphasizes is the inherent right
to take defensive action; however, it does not comment on the exist-
ence of limitations to that right.
Another international issue which has considered the applicability
of Article 51 is the use or threat of use of atomic weapons against
States. 63 On January 24, 1946, the General Assembly established the
Atomic Energy Commission.'" In its first report, submitted to the
Security Council, was included a U.S. memorandum.concerning the
relationship between atomic development authority and U.N. or-
gans. 165 The memorandum stated in part: "Interpreting [Article 51 of
the Charter] with respect to atomic energy matters, it is clear that if
atomic weapons were employed as part of an 'armed attack,' the rights
reserved by the nations to themselves under Article 51 would be appli-
cable."' 166 The memorandum also stated: "It is equally clear that an
'armed attack' is now something entirely different from what it was
prior to the discovery of atomic weapons"; and:
it would therefore seem to be both important and appropriate under
present conditions that the treaty define "armed attack" is [sic] a manner
appropriate to atomic weapons and include in the definition not simply
the actual dropping of an atomic bomb,
167
but also certain steps in them-
selves preliminary to such action.
This memorandum indicates that at least for atomic aggression, and
possibly for other forms of overt aggression, that not only is the right
of self-defense not limited, it is expanded. Within the context of an
atomic attack, anticipatory defensive action may be permitted. Thus,
mere preparation for attack can engage the right of individual or col-
lective self-defense under Article 51.
Finally, the memorandum presented to the Security Council indi-
cated that the mere violation of an international convention could trig-
ger rights under Article 51.168 The Commission made the following
recommendation:
In consideration of the problem of violation of the terms of the treaty or
162. U.N. CHARTER art. 51.

163. See generally 2 U.N. SECRETARY GENERAL, supra note 125, at 434-35.
164. G.A. Res. 1, U.N. Doc. A/64, at 9 (1946).
165. AEC, Special Supp., 1946, at 106; 2 U.N. SECRETARY GENERAL, supra note 125, at
434.
166. AEC, Special Supp., 1946, at 109.
167. Id. at 110.
168. Id.
convention, it should also be borne in mind that a violation might be of

so grave a character as to give rise to the inherent right of self-defense
169
recognized in Article 51 of the Charter of the United Nations.
However, this discussion of the applicability of Article 51 does not
address any limitation on the duration of a State's exercise of rights
under Article 51 once these rights are found to apply.
What the discussion of the AEC does present is the possibility of
expanded application of Article 51 through redefinition of "armed at-
tack." 170 The memorandum permits "armed attack" to be read to in-
clude preparation for aggressive attack and serious breaches of
international conventions.
Still, this interpretation and proposed application of Article 51
does not directly address the issue of whether the right to defensive
action is concurrent with Security Council action. Consequently,
given the lack of direct refutation in this and all previous applications,
it is possible to assert a presumptive interpretation based on the legis-
lative history's indication of the framers' intent, and thus the existence
of a right of concurrent defensive action.
CONCLUSION
Because Article 51 has been applied so rarely during the history of

the United Nations, the current dispute concerning the legality of con-
tinuing self-defense has arisen. However, the above analysis shows
that an examination of legislative history demonstrates that the fram-
ers of the U.N. Charter intended that the right of self-defense should
exist at all times unless the Security Council were to specifically pro-
hibit its exercise. This conclusion is drawn not only from the exami-
nation of the founding documents pertaining to Article 51, but from
the examination of the founding documents relevant to Chapter VIII
of the U.N. Charter on Regional Arrangements.
Furthermore, recognizing that subsequent interpretation of the
right of self-defense could obviate an interpretation consistent with the
framers' intent, this article examined the initial, precedent-establishing
applications of Article 51. All applications of the Article during the
first decade of the United Nations contributed to the definition of the
right of self-defense. However, no application ever questioned the un-
169. Id.
170. Although this memorandum was presented to-the Security Council after having been
adopted by a vote of 10 to none, with 2 abstentions [AEC, No. 10, 10th mtg. 1946, at 164], it was
reported that during the Commission's discussion of the memorandum, one member suggested
that the memorandum completely changed the meaning of Article 51 and that such change was
not meant to be undertaken by international agreement. See AEC, Special Supp., 1946, annex 5,
Com. 2, 2d mtg., at 114, 118.
Winter 1992] Limits on Self-Defense? 373
derlying premise that a State's right of unilateral or collective self-de-

fense exists concurrently with the Security Council's right to take
action.
Consequently, with all due respect to the U.N. Secretary General
and Professor Chayes, there never existed any reason to question the
legitimacy of Kuwaiti and Coalition defensive action prior to the Se-
curity Council's authorization of the use of force. The right of self-
defense is fundamental and can only be limited if State action is in
direct contravention of the purposes and principles of the Charter, or
if the Security Council takes explicit action to limit this right.

13 Mich JIntl L336

Uploaded by

Copyright:

Available Formats

You might also like

13 Mich JIntl L336

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

13 Mich JIntl L336

Uploaded by

Copyright:

Available Formats

DATE DOWNLOADED: Thu Apr 22 21:26:32 2021

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

Thomas K. Plofchan, Jr.*

On August 2, 1990, Iraqi Forces crossed into Kuwait and pro-

Initially, the Security Council authorized only economic sanctions

ity of the Coalition's use of force without Security Council approval

This article's two-pronged analysis has three distinct parts. Part I

I. THE DEBATE IN ISSUE

In order to understand completely the complexity and importance

maintain international peace and security" '1 5 is open to numerous in-

Indeed, in a textual analysis, Professor Chayes argues that judg-

on a state. This would be an implausible - indeed, absurd -

II. THE FRAMERS' INTENT

A. The Interpretive Dilemma

33. Schachter, supra note 9, at 458.

sor Schachter imply a context of Realist 38 dispute resolution. They

from the Article's ambiguous and obscure meaning. Thus, Article 32

treaty terms cannot be ascertained with certainty, resort to supplemen-

Consequently, the sponsoring powers proposed means in the Dum-

55. Doc. 1,supra note 50, at 16.

tervention by all nations in order to reestablish peace would be proper

C. Remarks of the CoordinatingCommittee

Amendments, Submitted by the Rapporteur, Dr. V. K. Wellington Koo (China), Restricted).

action to become illegitimate upon action by the Security Council, but

68. See supra notes 44-51 and accompanying text.

tee. Instead it was referred to the Jurists Committee, 76 where it was

D. The Influence of Regionalism

the original debate on the issue of collective or individual self-defense

However, a precise classification of an organization as either a

90. U.N. CHARTER art. 52(1)-(2).

peaceful settlements... There is and, therefore, can be no double juris-

92. Doc. 576, supra note 63, at 686.

Security Council in some form of hierarchy is even clearer when con-

France suggested that the circumstances of individual cases could not

suming responsibility is much more important than merely taking re-

107. Id. at 710.

of the Coalition in a context similar to the Gulf Crisis, the problem is

113. Id. at 158.

Chapter VIII organization, but an organization of the first type - an

can be envisaged. However, the treaties of assistance must in no case be

120. Id. at 777-78.

F. The Framers' Intent: Concluding Remarks

Article's application since the ratification of the Charter may shed

III. APPLICATION OF ARTICLE 51

127. Schachter, supra note 9, at 457.

Resolution. 132 Additionally, express reference to Article 51 was made

poused by the several Member States. Consequently, it is necessary to

during an armistice regime and not at a time when a sovereign State's

forces acting under a responsible authority; fourthly, there must exist

144. Id. at 286.