Declaring War and the Security Council

by Michael Ramsey

In previous posts I’ve argued that the U.S. intervention in Libya requires congressional approval under the Constitution’s original meaning and that there’s no longstanding uncontested precedent that would warrant departure from that meaning.  Here I’ll consider the significance of UN Security Council Resolutions 1970 and 1973, calling for a cease fire by the Libyan government and authorizing nations to use force against the Libyan military.  Some commentators have taken these resolutions to somehow distinguish the Libya situation from earlier ones, such as the potential attack on Iranian nuclear facilities debated in 2007.

I can see two arguments that the Council’s actions might help the President, but I don’t find either persuasive.  First, the Resolutions are adopted pursuant to a treaty, the UN Charter, and thus have the force of law in the U.S.; perhaps the President, exercising his obligation to “take Care that the Laws be faithfully executed” (Article II, Section 3),  has constitutional power to enforce them without needing congressional approval.

It might pose a difficult question if a treaty itself declared war or obligated the U.S. to declare war.  The issue would be when and whether powers of Congress could also be exercised by treaty – a matter vigorously debated in the post-ratification period without producing a fully satisfactory conclusion.  But that is not the question here.  Resolution 1973 authorizes the use of force in Libya for certain purposes.  It does not obligate the U.S. (or any other nation) to use force against Libya.  Even if the President’s “take Care” power fully empowers (and requires) him to enforce U.S. treaty commitments, the President is under no treaty obligation to use force here.

Resolution 1973 addresses a distinct issue: under Articles 2(4)  and 51 of the  Charter, the U.S. has a treaty obligation not to use force against other nations except in defense of itself or its allies.  Since neither situation applies to Libya, the intervention would be illegal under these provisions but for Resolution 1973 (because using force with Security Council approval is another exception to the Article 2(4) obligation).  So the Resolution says what the U.S. as a nation may do, but it doesn’t say anything about which branch of the U.S. government should make the decision to do it.  

I suppose one could argue that the President has power under Article II, Section 3 to use the military to enforce other nations’ treaty obligations.  If so, the key resolution is not 1973 but 1970, which calls on the Libyan government to end violence against its citizens (and, by this theory, the President is “tak[ing] Care” this “Law” is executed).  That’s an extraordinarily broad claim, though, that would radically undermine Congress’ declare war power in a way clearly not accepted by the founding generation.  For example, no one thought President Adams in 1798 could attack France without congressional authorization just because France had violated a treaty with the U.S. (which it had).  The founding generations’ categorical statements that the President alone could not start a war make no sense if the President can in fact start a war to enforce a treaty – a justification that would very commonly be available.

A second argument might be that the Security Council resolutions change the nature of the conflict, so that it is no longer a “war” (and so not subject to the declare war clause).  President Truman tried this argument in 1950 in the conflict in Korea, but history hasn’t been kind to it: everyone calls that conflict “the Korean War” although Truman claimed it was a “police action” to enforce the U.N. Charter.  (Similarly the 1991 Gulf War is called a war despite being approved by Security Council  resolution.)   In any event, this argument does not get around the text and original meaning of the declare war clause.  Resolution 1973 sets the objectives and limits of the intervention, but the intervention remains the “exercise of violence under sovereign command” – the 18th century definition of “war.”  And, especially because U.S. participation in the intervention is voluntary under international law, the U.S. had to manifest “by word or action” its commitment to war – which is the 18th century definition of “declare.”

Finally, even if some conflicts fought under Security Council approval are “wars,” perhaps this one is not, because it is – as State Department Legal Advisor Harold Koh said in a recent statement – “time-limited, well-defined, discrete and aimed at preventing an imminent humanitarian catastrophe.”  As Ken Anderson explores in this post, the Resolution itself is quite vague, and it’s not clear what limits it actually provides on the intervention.    But in any event, as I argued earlier, the founding generation surely understood limited wars, and still called them “wars” subject to the declare war clause.  The limits Koh describe may make the intervention just and reasonable, but they don’t make it any less a war.  According to recent news reports, among other things we are using sustained aerial attacks to destroy Libyan army tanks and ground forces, clearing the way for rebel forces to advance.  Wherever the line between war and not-war may be, this intervention seems firmly on the “war” side.  The fact that our actions are done with Security Council approval doesn’t change their nature – it only makes this a war in pursuit of objectives blessed by the Council.

http://opiniojuris.org/2011/03/28/declaring-war-and-the-security-council/

8 Responses

  1. Mike-
    Thanks for this thoughtful series of posts — it’s great to have you here!  Is it your view that acting pursuant to the Charter — and, in particular, under Chapter VII powers that bind member states — can never alter domestic law for the U.S.? So, for example, absent delegation under the International Economic Emergency Act, the president could not participate in Chapter VII sanctions without congressional approval? What about non-combat support for Chapter VII actions? Or are you simply drawing the line when the facts constitute an “armed attack” –or “war”/”non-war” as you put it?

    Peggy

  2. “Resolution 1973 authorizes the use of force in Libya for certain purposes.  It does not obligate the U.S. (or any other nation) to use force against Libya.  Even if the President’s “take Care” power fully empowers (and requires) him to enforce U.S. treaty commitments, the President is under no treaty obligation to use force here.”

    “But in any event, as I argued earlier, the founding generation surely understood limited wars, and still called them “wars” subject to the declare war clause.”

    “And, especially because U.S. participation in the intervention is voluntary under international law, the U.S. had to manifest “by word or action” its commitment to war – which is the 18th century definition of “declare.”

    By voting to approve the SC 1973 Resolution, wouldn’t the original intent folks believe we are manifesting “by word or action” our commitment to war?  Surely if the Founding Fathers understood limited wars (I can not see in their heads) they also did not have to see a gun used in the field to understand the consequences of an act.  After all, in the absence of 2(4) or 51 grounds, it is the SC resolution which forms the basis for our being able to engage the military.  So isn’t the issue more serious at this earlier step rather than with the actual putting in place of force?  And if Congress acquiesces in that earlier step does that mean something. This would push earlier on the plenary role of Congress in this discrete area and push back against the foreign relations/commander in chief construct that Koh is asserting in a limited space.

    Surely that we had just come out of a war with the supreme international power of the time (England) would have been thought of by the founding fathers.  But surely they would have imagined that we would be the guarantor of the free world against communism and fascism two centuries later and would be the anchor of the global security and economic system in a whole .  And of course they surely imagined that the President would one day be of African descent.  Or that there would be an internet and cyberwars.

    Or that video games would one day exist (Alito to Scalia) or that pigs one day may fly.

    Best,
    Ben

  3. Yes, Benjamin Davis, times have certainly changed since this nation was founded.  But what hasn’t changed, and likely won’t ever change, is human nature.  Human nature, and, especially, its vices, when men are given power over the lives of others, are what guided the historically-informed designers of our Constitutional system of government.  It is the height of arrogance and short-sighted, dangerous hubris to pretend that the people of the United States today are somehow immune to the timeless cycles of oppression that inevitably manifest when human beings (especially one human being, acting on his arbitrary will alone, like the man holding the office of President of the United States) are vested with unchecked power to do as they please with the lives of others.

  4. Thanks anon, but I think it is also the height of hubris to deify their original meanings – if we can even truly understand them now on the limited bases which are typically used for the orginial intent approaches. 

    It is only recently that some of the radical visions of the Republicans in the period after the Civil War are brought out apparently because of an aggressive process of denigrating and hiding their “original intent” in the Reconstruction and Restoration period.

    And given that the structural protection of slavery has such a central role in the federalism and separation of powers structure of their 18th Century invention – a terribly bankrupt compromise even then – permit me to read them with a bit of hesitancy.  Especially the family who owned my ancestor Barbary (Harrisons).

    Best,
    Ben

  5. Thanks for your comments.  Here are a couple of quick responses.

    Peggy, that’s tough question that I deliberately ducked in my post and I’ll continue to duck it because I don’t think it’s implicated by Resolution 1973.  I don’t think any Security Council Resolution that merely allows the United States to take an action under international law would change the U.S.’s internal allocation of constitutional power in deciding whether to take that action.  It’s different, though, if a Resolution requires the U.S. to act: then the President arguably has a constitutional duty to enforce it, perhaps including through acts that otherwise would need congressional authorization.  But there are also some seroius objections: the treaty obligation represented by the Resolution might be addressed to Congress (that is, it might be non-self-executing), or there might be problems of unconstitutional delegation.  So I’m staying well away from it.

    Ben, also a great point, and I take it that the core proposition is, regardless of formalities, we all know the U.S. was backing Resolution 1973 because it planned to launch an attack; therefore, its support for the Resolution amounted to a declaration of war.  If I accept that argument, I think I have to say that the President needed congressional authorization before voting for the Resolution.  However, I think the formalities are important.  As a formal matter, the Resolution does not obligate the U.S. to attack.  I assume that some nations that voted for the Resolution aren’t involved in the hostilities, and I wouldn’t say that a war exists between those countries and Libya.  The U.S. is involved in a war only because it launched attacks, not because it voted for the Resolution.  So it’s the former, not the latter, that needed Congress’ authorization.

    –Mike

  6. OK Mike,

    That got me thinking of something else then.  If we stipulate that Article 51 risk was not present in either case of Iraq (we were lied to if you will) or Libya.

    Iraq can be looked at as (stipulating no Article 51 risk) –

    Option 1: 2002 AUMF in the absence of a subsequent “any means necessary” SC Resolution;
    Option 2: 2002 AUMF after 1991 “any means necessary” SC Resolution but in the absence of a subsequent “any means necessary” SC resolution

    Libya can be looked at (stipulating no Article 51 risk): no AUMF in the presence of a subsequent “any means necessary” SC resolution

    Iraq is the more Constitutional law compliant under either option, and Libya is the more international law compliant.

    “No state can use its internal law to extract itself from its international obligations.” – old customary international law rule described in the Vienna Convention on the Law of Treaties.  International law indifferent to the domestic approach to compliance with it.

    If speed of reaction is the question, if we are permanent members of the Security Council, and we seek to be original intent compliant is the US structurally doomed to be unable to respond to urgent (speed is the key) humanitarian crises in the UN system in any manner that can be viewed domestically as “war?”   Does that amount to a free pass by us for dictators who create such situations in their countries?  In a sense, under the original intent vision, are we subsidizing dictator created rapid humanitarian crises in the system upon an altar that structurally requires delay even in the manner we respond in the UN under the?

    Can I go farther and say that I would be curious to see whether the original intent types even conceived of the idea of a humanitarian intervention as they were constructing the Constitutional structure – we being a little player at the time on the international stage.

    Put another – how does internal process affect the risk of foreign rapid dictator generated human deaths?

    Darfur, Rwanda, and Cambodia come to mind in the current period.

    Or even another way, does our structure pemit aggressive war by us but not permit rapid response to humanitarian crises?

    Is this wise? Is this wisdom?

    Best,
    Ben

  7. If the presidents had to wait for every single decision to be approved by Congress there would be no goals achieved as far as the issues which need a quick reaction are concerned. Sometimes it’s better to act quickly.

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