Document Type

Article

Publication Date

1998

Publication Information

36 Colum. J. Transnat'l L. 473 (1998)

Abstract

The most important, and certainly the most ambitious, modification of international law in this century has been the outlawing of the use of force to settle international disputes. The definitive prohibition on the use of force came with the adoption of the United Nations Charter and, in particular, Charter article 2(4).

For a short while, from 1991 until 1994, it appeared that a majority of Security Council members had re-interpreted the Charter's order of priorities. To some, it seemed that the Council had placed such values as human rights, self-determination, and even democracy above the value of peace through respect for State autonomy. A careful examination does not support the conclusion that the Security Council accomplished a real re-ordering. However, to the extent that Security Council members may have moved away from the traditional interpretation of the Charter, restated above by Henkin, they have now returned. The experiment with re-ordering priorities has ended. Peace through respect for State autonomy has again, for better or worse, returned as the primary value. This article examines the period of reinterpretation: 1991-1994. Section two begins by confirming Henkin's observation that the Charter was designed to enshrine preservation of the peace as the supreme value of the international community, even at the expense of other values. As Henkin points out, preserving the peace was thought to support State autonomy and, more importantly, fundamental order for all. As noted by Henkin in the quotation above, the drafters of the Charter believed that respecting State autonomy could guarantee peace. Section two aims to link this ordering of values more directly to the Security Council and States. Section three then looks closely at the significant events of the period of Security Council activism, which some believe changed the original Charter design. The result of the analysis in this article, however, finds that on only one occasion, in the case of Haiti, did the Security Council unambiguously re-interpret the plain words of the Charter. This re-interpretation has not been repeated. The conclusion here is that, at least through the beginning of the 21st century, the Security Council will continue to respect the value of State autonomy in its efforts to keep the peace.

Comments

Reprinted with permission of the Columbia Journal of Transnational Law.

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