Published online by Cambridge University Press: 27 February 2017
Does Security Council Resolution 678, read in conjunction with the United Nations Charter, confer authority on the President under United States domestic law to introduce the United States Armed Forces into hostilities? The operative part of the resolution provides that the Security Council:
1 SC Res. 678 (Nov. 29, 1990), reprinted in 29 ILM 1565 (1990).
2 See The Record of American Diplomacy 461-70 (R. Bartlett 3d ed. 1954) [hereinafter Bartlett].
3 58 Cong. Rec. 8777 (1919).
4 Address at Indianapolis (Sept. 4, 1919), reprinted in S. Doc. No. 120, 66th Cong., 1st Sess. 19, 22 (1919).
7 A. Cranston, The Killing of the Peace 222 (1945) (remarks of Sen. G. Hitchcock).
8 A. Cranston, supra note 7, at 224.
9 See Statement of the 31, reprinted in Bartlett, supra note 2, at 482.
10 2 C. Hull, The Memoirs of Cordell Hull 1662 (1948).
11 H.R. Con. Res. 25, 78th Cong., 1st Sess. (1943) (emphasis added).
12 S. Res. 192, 78th Cong., 1st Sess. (1943) (emphasis added).
13 The Private Papers of Senator Vandenberg 95–96 (A. Vandenberg, Jr., ed. 1952).
14 Secretary of State, 79th Cong., 1st Sess., Report to the President on the Results of the San Francisco Conference 95 (Comra. Print 1945).
15 Gross, The Charter of the United Nations and the Lodge Reservations, 41 AJIL 531, 550 (1947).
16 3 UN GAOR, pt. 2, Annexes, UN Doc. A/656, at 10 (1948); 1 Public Papers of the Secretaries-General of the United Nations: Trygve Lie 170 (1969).
17 N. Bentwich & A. Martin, Commentary on the Charter of the United Nations 97–98 (1969).
18 James, The Enforcement Provisions of the United Nations Charter, in Unitar, The United Nations and the Maintenance of International Peace and Security 213, 215 (1987) (emphasis added).
19 Note, Congress, the President, and the Poioer to Commit Forces to Combat, 81 Harv. L. Rev. 1771, 1800 (1968).
21 Pub. L. No. 79-264, ch. 583, 59 Stat. 619 (1945) (22 U.S.C. §§287–287e (1988)) [hereinafter UNPA].
22 91 Cong. Rec. 12,267 (1945) (remarks of Rep. S. Bloom).
25 Note, supra note 19, at 1800 n.155.
24 UNPA, supra note 21, §6.
26 Id. §7.
28 1 U.S. House of Representatives, Committee on International Relations, Executive Session Hearings of the Committee, 1943–50, Problems of World War II and Its After-Math, pt. 1 at 143 (1976).
29 Id. at 143, 146.
30 H.R. Rep. No. 1383, 79th Cong., 1st Sess. 8 (1945); S. Rep. No. 717, 79th Cong., 1st Sess. 7 (1945) (emphasis added).
31 91 Cong. Rec. 10,966 (1945).
32 Id. at 10,967.
33 See id. (remarks of Sen. Vandenberg).
34 91 Cong. Rec. at 10,967–68.
35 Id. at 12,267.
36 E. Corwin, The President: Office and Powers 221 (4th rev. ed. 1957).
37 Joint Committee Made up of Senate Comm. on Foreign Relations and Senate Comm. on Armed Services, Powers of the President to Send the Armed Forces outside the United States, 82d Cong., 1st Sess. 23 (Comm. Print 1951).
38 L. Goodrich & A. Simons, The United Nations and the Maintenance of Interna Tional Peace and Security 398 (1955).
39 SC Res. 83 (June 27, 1950). The Soviet delegate was not present for the vote and thus could not veto the resolution.
40 A. Schlesinger, Jr., The Imperial Presidency 134 (1973).
43 SC Res. 665 (Aug. 25, 1990). SC Resolution 661, adopted on August 6, 1990, ordered the trade and financial boycott of Iraq and occupied Kuwait.
44 War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§1541–1548 (1988)).
45 War Powers, Libya, and State-Sponsored Terrorism: Hearings Before the Subcomm. on Arms Control, International Security and Science of the House Comm. on Foreign Affairs, 99th Cong., 2d Sess. 10,18 (1986) (testimony of State Department Legal Adviser Abraham D. Sofaer).
46 See Ely, Suppose Congress Wanted a War Powers Act That Worked?, 88 Colum. L. Rev. 1379, 1418–19 (1988); Glennon, Mr, Sofaer’s War Powers ’Partnership,” 80 AJIL 584 (1986).
47 A Revieiu of the Operation and Effectiveness of the War Powers Resolution: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 76 (1977) (statement of Monroe Leigh).
48 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 39, 1155 UNTS 331.
49 S. 440, 93d Cong., 1st Sess. (1973).
50 Id. §3(4).
51 S. Rep. No. 220, 93d Cong., 1st Sess. 26 (1973). The committee said further that the war powers of Congress are vested in both Houses of Congress and not in the Senate (and President) alone. A decision to make war must be a national decision. Consequently, to be a truly national decision, and, most importantly, to be consonant with the Constitution, it must be a decision involving the President and both Houses of Congress. Id.
52 H.R. Rep. No. 547, 93d Cong., 1st Sess. (1973).
53 Id. at 7.
54 In connection with Secretary of State Henry Kissinger’s appearances before the Senate Foreign Relations Committee on November 19, 1975, Senator Dick Clark submitted a question asking whether “any treaty authorize[s] the introduction of U.S. armed forces into hostilities.” The administration replied: “[T]he answer is ‘no.’ Treaties of the United States which express defense commitments to other nations commit the United States to act only in accordance with its constitutional processes. Such treaties do not confer authority which would not otherwise be available through the constitutional process of the United States.” Letter from Robert J. McCloskey, Assistant Secretary of State, to Senator Dick Clark (Mar. 1, 1976) (on file with author).
55 In response to a letter from Senator George McGovern to Secretary of State Cyrus Vance, the administration replied:
[Although our mutual security agreements entail a legal obligation to respond to an armed attack on another party, the nature and scope of that response is left to the discretion of the responding party …. Accordingly, such treaties do not confer “Authority to introduce United States Armed Forces into hostilities” within the meaning of Section 8(a)(1) of the War Powers Resolution.
Letter from Douglas J. Bennet, Jr., Assistant Secretary for Congressional Relations, to Senator George McGovern (June 2, 1977) (on file with author).
56 See, e.g., Reisman, Take It to Court, N.Y. Times, Mar. 16, 1988, at A16; Reisman, An International Farce: The Sad Case of the PLO Mission, 14 Yalej. Int’l L. 412 (1989).
57 See, e.g., Diggs v. Shultz, 470 F.2d 461, 466 (D.C. Cir. 1972). Such a situation would obtain if Congress authorized the use of force against Iraq in the face of Security Council preemption.
58 United States v. Palestine Liberation Org., 695 F.Supp., 1456, 1465 (S.D.N.Y. 1988).
60 S. Exec. Rep. No. 12, 95th Cong., 2d Sess. 65 (1978).
61 1 The Records of the Federal Convention of 1787, at 300 (M. Farrand rev. ed. 1937).
62 Id. at 318.
63 Id. at 319.
64 Id. at 318–19.
65 1 Abridgment of the Debates of Congress 650–51 (T. Benton ed. 1857).
66 L. Henkin, Foreign Affairs and the Constitution 160 (1972).
67 S. Exec. Rep. No. 12, supra note 60, at 74. See also S. Rep. No. 7, 96th Cong., 1st Sess. 31 (1979) (Taiwan Enabling Act):
No mutual security treaty to which the United States currently is a party authorizes the President to introduce the armed forces into hostilities or requires the United States to do so, automatically, if another party to any such treaty is attacked. Each of the treaties provides that it will be carried out by the United States in accordance with its “constitutional process” or contains other language to make clear that the United States’ commitment is a qualified one—that the distribution of power within the United States Government is precisely what it would have been in the absence of the treaty, and that the United States reserves the right to determine for itself what military action, if any, is appropriate.
68 See The Federalist Nos. 64 and 75 (A. Hamilton).
69 A. Hamilton, The Examination, in 25 The Papers of Alexander Hamilton 456 (H. Syrett ed. 1961–79) (emphasis in original).
70 S. Exec. Rep. No. 15, 100th Cong., 2d Sess. 92 (1988) (INF Treaty) (emphasis added).
71 A more reasonable conclusion is that chapter VII has been a dead letter since the Korean War. See T. Franck, The Power of Legitimacy Among Nations 42 (1990) (if one were “to select those texts which most accurately portray how the world really is … , [t]he section on the Security Council’s never applied military enforcement powers (Chapter 7) could well be set aside”).
72 The ABM Treaty and the Constitution: Joint Hearings Before the Senate Comms. on Foreign Relations and the Judiciary, 100th Cong., 1st Sess. 62 (1987).
75 In approving the INF Treaty, Treaty on the Elimination of their Intermediate-Range and Shorter Range Missiles, USSR–United States, Dec. 8, 1987, S. Treaty Doc. No. 11, 100th Cong., 2d Sess. (1988), the Senate attached the so-called Biden condition, which was initiated by Senator Joseph R. Biden and modified slightly in a technical amendment by Senator Robert Byrd when the Treaty was approved by the Senate. It provided as follows:
The Senate’s advice and consent to ratification of the I.N.F. Treaty is subject to the condition, based on the treaty clauses of the Constitution, that:
1. The United States shall interpret the treaty in accordance with the common understanding of the treaty shared by the President and the Senate at the time the Senate gave its advice and consent to ratification;
2. Such common understanding is based on: a) first, the text of the treaty and the provisions of this resolution of ratification; and b) second, the authoritative representations which were provided by the President and his representatives to the Senate and its committees, in seeking Senate consent to ratification, insofar as such representations were directed to the meaning and legal effect of the text of the treaty; and
3. The United States shall not agree to or adopt an interpretation different from that common understanding except pursuant to Senate advice and consent to a subsequent treaty or protocol, or the enactment of a statute; and
4. If, subsequent to ratification of the treaty, a question arises as to the interpretation of a provision of the treaty on which no common understanding was reached in accordance with paragraph 2, that provision shall be interpreted in accordance with applicable United States law.
134 Cong. Rec S6724 (daily ed. May 26,1988). The condition was adopted by the Senate by a vote of 72 to 27. Id. at S6783–84. See also M. Glennon, Constitutional Diplomacy 134–45 (1990); Committee on International Arms Control and Security Affairs, The Anti-Ballistic Missile Treaty Interpretation Dispute, 43 Record N.Y.C.B.A. 300 (1988).
74 See UN Charter Arts. 108, 109.
75 See U.S. Const. Art. V.
76 Committee hearings, Dec. 5 and 6, 1990 (NEXIS, Fed. Information Sys. Corp. file).
77 Soviet Foreign Minister Eduard A. Shevardnadze, on October 15, 1990, promised the Soviet Parliament that the Soviet Government would not commit troops to the gulf without prior legislative approval. “The Security Council is in a position to pass a decision like this only if the Soviet Union votes for it,” he said. “And even if the leadership makes this decision, we will vote only after the Supreme Soviet has voted for it.” N.Y. Times, Oct. 16, 1990, at A8, col. 1 (nat’l ed.). Compare Borchard, The Charter and the Constitution, 39 AJIL 767, 771 (1945): “[T]he power to declare war, however perfunctory it may have become, is expressly reserved to Congress by the Constitution … .” Therefore, “Congress … must act before the President is warranted in executing its instruction by communicating with the delegate. The delay is unavoidable.”
78 Until the enactment of H.J. Res. 1, 102d Cong., 1st Sess., on January 12, 1991, there was no statutory authority for U.S. military activities in the Persian Gulf. No conference committee was convened to resolve differences between the two measures passed by the Senate, S. Con. Res. 147, 101st Cong., 2d Sess. (1990), and the House, H.R. Res. 658, 101st Cong., 2d Sess. (1990). Congress adjourned without taking action on the matter, and both measures were thus without force and effect. See INS v. Chadha, 562 U.S. 919 (1983). No authorization or appropriation acts could imply such authority because of §8(a)(1) of the War Powers Resolution, discussed in text at notes 44–45 supra.
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