McCain's UN Charter Confusion
Addressing Samantha Power at her confirmation hearing for U.S. ambassadorship to the United Nations, Senator John McCain said he was "struck" by a recent article by Anne-Marie Slaughter in the Financial Times in which the author claims that Article 52 of the UN Charter could serve as a legal basis for international military action against Syria.
Article 52 merely recognizes the existence of regional arrangements or agencies (such as the NATO) for dealing with such matters relating to the maintenance of international peace and security, but according to Slaughter and McCain, the underlying implication of this recognition is that the Charter permits these organizations to act autonomously and go to war without Security Council authorization.
Visibly enthused by this purported loophole in the UN legal system, the senator then quotes an excerpt of the op-ed where Anne-Marie Slaughter posits that "regional organizations must notify the Security Council of their actions but not necessarily seek approval." He then asks the aspiring U.N. ambassador, Samantha Power, if she concurs with the opinion, to which she evasively replies: "In terms of the legal rationales, that's something I don't feel equipped to weigh in on."
Of course, the correct "legal" answer would have been a simple "no."
Article 2(4) of the UN Charter clearly forbids the use of force in international relations. It allows only two exceptions to this prohibition: Self-defense, as provided in Article 51, and military measures authorized by the Security Council. Nothing in the Charter even remotely suggests that countries may bypass these exceptions and use force at whim if they regrouped in regional military organizations. Regional military organizations are subjected to the exact same rules and strictures as individual states when it comes to the use of force. Besides, nothing in the Charter confers to these organizations a distinguished status superior to that of the Security Council, placing them outside its purview.
In fact, according to Article 24, the Security Council is the "primary" organ responsible for maintaining international peace and security. Save in case of self-defense, regional organizations such as NATO remain in a subordinate position with its respect in that they may operate only if they are "utilized" (as stated in Article 53) or authorized by the Security Council (Article 42). As a matter of fact, Samantha Power ought to have reminded the senator that the Charter stipulates in no uncertain terms that "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council."
As for Article 52, Senator McCain's newly discovered avenue for attacking Syria, although it recognizes the existence of regional military arrangements, it also clearly requires that their activities be "consistent with the Purposes and Principles of the United Nations," the most important of which is the prohibition of the use of force.
In sum, free of political constraints, the nominee for U.S. ambassadorship to the UN would have told the senator that coming up with new extravagant interpretations and new doctrines of international law every time the United States needs to take a new strategic posture only contributes to more instability in the international order. It also sets bad precedents that could harm the United States' interests in the long run. Circumventing the Charter or attempting to find legal subterfuges to justify a particular course of action, she would've said, is a policy that should be abandoned once and for all.
Reza Nasri is an international lawyer from Geneva's Graduate Institute of International and Development Studies, specializing in Charter law.