Kosovos AntinomiesAuthor(s) W. Michael ReismanSource Th.docx

Kosovo's Antinomies
Author(s): W. Michael Reisman
Source: The American Journal of International Law, Vol. 93,
No. 4 (Oct., 1999), pp. 860-862
Published by: American Society of International Law
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860 THE AMERICANJOURNAL OF INTERNATIONAL LAW
[Vol. 93:860
A final lesson of Kosovo is that, in the end, the United Nations-
albeit disdained and
circumvented-again became an essential facilitator in ending the
conflict. It is not the only
forum for the exercise of creative, sustained multilateral
diplomacy, but it remains a resilient
and irreplaceable one. That, in the end, may be the clearest
lesson.
THOMAS M. FRANCK
Kosovo 's ANITINOMIES
The insistence on the integrity of procedures is not arid
formalism. Lawyers know that
however noble the impulse, action in the common interest that
is taken without formal
authority may have incalculable public costs. Group security
and individual liberty depend,
in no small part, on orderly decision preceded by due
deliberation; actions inconsistent with
the procedures of the law erode their authority and increase the
probability of abuse. But
lawyers also know that legal procedures do not always work and
that sometimes decisions
have to be taken without regard to them. As Justice Holmes

said, "a constitution is not a
suicide pact."
Faced with such antinomies, no lawyer, whatever his or her
conclusion as to the lawfulness
of NATO's action in Kosovo, can look back at the incident
without disquiet. While some in
our profession will strain to weave strands from various
resolutions and ex cathedra
statements of UN officials into a retrospective tapestry of
authority (unintentionally
contributing to bases for other claims and actions), all
appreciate that NATO's action in
Kosovo did not accord with the design of the United Nations
Charter. The question is
whether Kosovo comes under the "suicide pact" rule, the
exceptio for that very small group
of events that warrant or even require unilateral action when the
legally designated
institution or procedure proves unable to operate. That is
ajudgment that must be made
in light of the law at stake, the facts and feasible alternatives at
the moment of decision.
One can reasonably criticize many of the international actions
and inactions during and
after the dissolution of Yugoslavia and deplore the fact that
some of those earlier
international choices may have actually exacerbated ethnic
tensions and conflicts. But
decision makers must act on current facts, not on wishful if-
onlys and wistful might-have-
beens. The facts were alarming. As always, information was
imperfect, but enough was
available to indicate that bad things were happening, things
chillingly reminiscent of some

earlier as well as, lamentably, more recent events in this
century; and it was reasonable to
assume (and, to some, irresponsibly naive not to assume) that,
given the people involved,
worse things were in store. Economic sanctions and diplomacy
were failing to dissuade the
officials ordering and carrying out the bad things. In the post-
Cold War world, responsible
leaders properly turn to the Security Council. But the Security
Council was paralyzed.
Hence, the feasible options were to forgo formally lawful action
under the Charter or to
forgo the lives and human rights of the Kosovars. NATO states
chose the first.
Military action is a blunt instrument and, no matter how careful
operators are, some
innocent people get killed or hurt.But the other instruments of
strategy had failed, so it was
either military action or self-righteous public hand-wringing
with improbable (and, to most
of the victims, probably irrelevant) assurances-even as the
crimes continued to be
committed-that someday their killers and rapists would be put
on trial. When military force
was brought into play, the ensemble of strategies that until then
had failed, finally worked.
That is not to say that NATO's action transformed Kosovo into a
paradise. No reasonable
person expected that it would. But it achieved its objective:
Kosovars are back in their
homes. Serb oppression has ceased and there is now an
opportunity, which one hopes will
not be squandered, to plan and implement a reconstruction
program. Skilled diplomacy has
incorporated Russia in the solution and in the peace-

maintenance operation. There are,
2013 12:16:54 PM
1999] EDITORIAL COMMENTS: NATO'S KOSOVO
INTERVENTION 861
inevitably, new problems, some arguably created by the NATO
action itself-that is the
dialectical nature and continuous challenge of politics at every
level-but what would the
situation now be in Kosovo, and in human rights law, if the
NATO states had concluded
that, without Security Council authorization, they could not act?
Yet it is appropriate, indeed incumbent on international
lawyers, to ask whether these
events come under the "suicide pact" exceptio that would
warrant action outside the UN
procedure, with the costs to international law that such action
often incurs. The answers to
those questions all have a desperate inevitability to them.
- Were the human rights violations in Kosovo "bad" enough to
warrant international
concern? Different people have different thresholds of tolerance
for other people's
pain. Fortunately, an event on the scale of the Holocaust has not
become the
minimum requiremnent for the exercise of international
concern.

- Why was the militaly instrument used to address the human
rights violations in
Kosovo? Because all the other instruments of policy had failed.
- Why was action undertaken without Security Council
authorization? Because the
authorization could not be secured.
- Why was there only an air campaign? Because it was the best
of the feasible
alternatives. The air campaign did not look chivalric and had its
dramatic errors,
but a ground campaign would have caused more collateral
damage. Moreover, it
would not have sustained the necessary domestic political
support in the most
critical NATO states. In any case, no rule requires a combatant
otherwise in
compliance with the law of armed conflict to choose a course of
conduct that is
more, rather than less, dangerous to itself.
- Why did the outcome not provide 100 percent improvements in
the human rights
situation? One might better ask whether it produced a
significant improvement as
compared to what would have happened if nothing had been
done.
- Does the Kosovo intervention not set a bad precedent for the
use of force without
Security Council authorization? One may equally ask whether a
better precedent
would be that no one may do anything effective to stop the
destruction or expulsion

of the Kosovars of the future, if the Security Council proves
unable to operate.
- Why was comparable action not taken in Rwanda?-to name
only one recent case
in which the world stood by and solemnly talked of future
criminal prosecutions,
while the criminals consummated their unspeakably wicked
deeds. This would be
a truly bizarre invocation of legal precedent. The proper
question is whether
Rwanda is to be taken as a precedent that limits future action or
as a lesson of the
type of international nonfeasance that should never again be
allowed to occur.
None of us who are compelled to ask hard questions about the
lawfulness of the Kosovo
action is a consistent strict constructionist of the Charter. After
all, who among us insists on
a textual interpretation of Article 2(7)? But we all are stricter
when it comes to reading
Article 2(4), for no one wants a return to the world of classic
international law in which
states could resort to violence against each other at will.
Kosovo does not erode Article 2 (4). Article 2 (4) was changed
by the contraction of Article
2(7), which, by effectively eliminating for serious human rights
violations the defense of
domestic jurisdiction, removed from the sphere of the "political
independence" of a state
the right to violate in grave fashion and with impunity the
human rights of its inhabitants.
But a treaty, such as the United Nations Charter, is an
integrated conception; one cannot

change part of it without making appropriate adjustments in
other parts. Assigning a nearly
exclusive right to use force to a Security Council, on which the
five most powerful states of
the world sit as permanent members, is a workable idea if the
responsibility of that Council
is restricted to resisting threats to and breaches of the peace and
acts of aggression. These
are fundamental and venerable postulates of international
politics on which, for the time
2013 12:16:54 PM
862 THE AMERICAN TOURNAL OF INTERNATIONAL LAW
[Vol. 93:860
being, the permanent members can usually agree. But the
assignment of exclusive power
to the Council ceases to be workable if the writ of the United
Nations is also extended to the
protection of human rights, the international control of the
essential techniques by which
governments manage and control their people internally. On
these matters, there are
profound, possibly unbridgeable divides between the permanent
members.
It is the installation in international law of the code of human
rights that has created the
antinomies of the Kosovo action, for international law now sets
as an imperative objective

a peremptory standard by which the behavior of governments is
to be tested and, where
necessary, restrained and sanctioned. This mandate ultimately
requires the use of force, yet
the far-reaching innovation of human rights does not, at the
same time, adjust the inclusive
enforcement mechanism so that it can implement the new
objectives. Hence the legal
imperative for the Kosovo action, the virtual impossibility of
accomplishing it through the
Security Council, and the simultaneous sense of relief, anomie
and anxiety that the
apparently successful action has generated.
The procedures for deciding and appraising the lawfulness of
the Kosovo action were not
those contemplated by the Charter. That is not good and, no
matter how noble and urgent
the outcome, it will not be good when it happens in the future.
Yet, if the circumstances
require, it should-it must-be done again! The practical question
is whether Kosovo-like
decisions that come under the "suicide pact" rule will be
essentially uncontrolled actions
taken by one or more powerful states in their own special
interest-and truly violate the
spirit of Article 2 (4)-or whether theywill be subjected to the
discipline of international law
standards and contribute to the major purposes of the United
Nations Charter.
The Kosovo experience shows that they can be controlled. In
addition to governments,
the modern international legal process incorporates
intergovernmental organizations,
private entities, the mass media, nongovernmental organizations

and individuals; their
members and representatives communicate through an
international electronic nerve
system and at all levels of international society, including the
most formal diplomatic arenas.
It is this modern, inclusive international process that promoted
and demanded the
international human rights code and, make no mistake,
demanded and appraised every step
of the Kosovo action as a necessary implementation of those
rights. In this respect, Kosovo
bears no likeness to previous examples of humanitarian
intervention, which were, to varying
degrees, for all their high rhetoric, instruments of policy of
particular states, whose
commitment to human rights was not always consistent or
credible.
An unorganized decision process is neither as efficient nor as
procedurally just as an
organized and enlightened one. Hence law's ceaseless quest for
organization and
institutionalization. When human rights enforcement by military
means is required, it
should, indeed, be the responsibility of the Security Council
acting under the Charter. But
when the Council cannot act, the legal requirement continues to
be to save lives, however
one can and as quickly as one can, for each passing day, each
passing hour, means more
murders, rapes, mutilations and dismemberments-violations of
human beings that no
prosecution will expunge nor remedy repair.
W. MICHAEL REISMAN

2013 12:16:54 PM
http://www.jstor.org/page/info/about/policies/terms.jspArticle
Contentsp. 860p. 861p. 862Issue Table of ContentsThe
American Journal of International Law, Vol. 93, No. 4 (Oct.,
1999), pp. 771-1013+i-viVolume Information [pp. ]Front Matter
[pp. ]Joint Development of Common Offshore Oil and Gas
Deposits: "Mere" State Practice or Customary International
Law? [pp. 771-804]Duty and Discretion in International
Arbitration [pp. 805-823]Editorial Comments: NATO's Kosovo
InterventionKosovo and the Law of "Humanitarian Intervention"
[pp. 824-828]NATO's Campaign in Yugoslavia [pp. 828-
834]Anticipatory Humanitarian Intervention in Kosovo [pp.
834-841]Kosovo: A "Good" or "Bad" War? [pp. 841-
847]Kosovo, World Order, and the Future of International Law
[pp. 847-857]Lessons of Kosovo [pp. 857-860]Kosovo's
Antinomies [pp. 860-862]Notes and CommentsRocks that
Cannot Sustain Human Habitation [pp. 863-878]Contemporary
Practice of the United States Relating to International Law [pp.
879-912]International DecisionsDifference Relating to
Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights. Advisory Opinion [pp. 913-
923]Case Concerning the Vienna Convention on Consular
Relations (Federal Republic of Germany v. United States).
Provisional Measures Order [pp. 924-928]Legality of Use of
Force (Yugoslavia v. Belgium) (Yugoslavia v. Canada)
(Yugoslavia v. Germany) (Yugoslavia v. Italy) (Yugoslavia v.
The Netherlands) (Yugoslavia v. Portugal) (Yugoslavia v.
Spain) (Yugoslavia v. United Kingdom) (Yugoslavia v. United
States) [pp. 928-933]Waite and Kennedy v. Germany,
Application No. 26083/94; Beer and Regan v. Germany,
Application No. 28934/95 [pp. 933-938]Charte europeenne des
langues regionales ou minoritaires, Decision No 99- 412 DC
[pp. 938-942]Current DevelopmentsThe ILO Convention on the

Worst Forms of Child Labor [pp. 943-948]The United Nations
Group of Experts for Cambodia [pp. 948-953]Hydro-Diplomacy
in South Asia: The Conclusion of the Mahakali and Ganges
River Treaties [pp. 953-962]Book Reviews and NotesReview:
untitled [pp. 963-965]Review: untitled [pp. 965-967]Review:
untitled [pp. 988-991]Briefer NoticesReview: untitled [pp. 991-
992]Books Received [pp. 992-994]International Legal Materials
[pp. 995-996]Table of Cases [pp. 997-1000]Back Matter [pp. ]
Assignment 2:Bid Strategy
Due Week 4 and worth 150 points
Provide a bid strategy using the same firm and scenario from
the first assignment.
Write a three to five (3-5) page paper in which you:
· Review the action plan from the first assignment and create a
future plan that is consistent with federal procurement
opportunity’s mission or strategic plan.
· Create a bid decision evaluation form, select a total of five (5)
criteria of the firm’s current marketing position, and then score
against the requested opportunity using the example on Figure
7.1 described in Chapter 7 of the textbook.
· Develop a bid strategy that provides a competitive edge over
the peer federal acquisition market using five (5) customer key
evaluation requirements (CKERs).
· Identify three (3) risks of the bid strategy and then develop
three (3) opportunities to mitigate each risk.
· Use at least three (3) quality resources in this
assignment. Note: Wikipedia and similar Websites do not
qualify as quality resources

Kosovo and the Law of "Humanitarian Intervention"
Author(s): Louis Henkin
Source: The American Journal of International Law, Vol. 93,
No. 4 (Oct., 1999), pp. 824-828
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2555346 .
Accessed: 09/10/2013 12:06
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range of
content in a trusted digital archive. We use information
technology and tools to increase productivity and facilitate new
forms
of scholarship. For more information about JSTOR, please
contact [email protected]
.
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JSTOR to digitize, preserve and extend access to
The American Journal of International Law.
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EDITORIAL COMMENTS: NATO'S KOSOVO
INTERVENTION
KoSOVO AND THE LAW OF "HUMANITARIAN
INTERVENTION"
1.
"Kosovo" has compelled us to revisit the troubled law of
"humanitarian intervention." The
terrible facts in and relating to Kosovo in 1998-1999 are known
and little disputed. The
need to halt horrendous crimes against humanity, massive
expulsions and war crimes, was
widely recognized. NATO intervention by military force was
widely welcomed, but it was also
sharply criticized. And it inspired much searching of soul by
students of international law.
Now that the fait of the NATO bombing is accompli, and has
been assimilated into a
political resolution blessed by the Security Council, the legal
issues of humanitarian
intervention can be addressed in comparative tranquility, and
the legal lessons pursued with
less urgency, and with greater wisdom.
Was military intervention by NATO justified, lawful, under the
UN Charter and
international law?' Does Kosovo suggest the need for
reaffirmation, or clarification, or
modification, of the law as to humanitarian intervention? What

should the law be, and can
the law be construed or modified to be what it ought to be?
II.
Before the Second World War, international law prohibited
"intervention" by any state
within the territory of another without that state's consent:
international law prohibited
unilateral intervention in internal wars; international law
prohibited intervention even for
agreed, urgent humanitarian purposes. In 1945 the UN Charter
reaffirmed those prohi-
bitions as part of a general prohibition on the use of force.
Article 2 (4) of the Charter prohibits "the threat or use of force
against the territorial
integrity or political independence of any state" (subject only to
the right of self-defense,
Article 51). Article 2(4), it has been accepted, prohibits
intervention by a state in internal
war in another state by military support for either side. It has
been commonly accepted, too,
that the prohibition on intervention applies regardless of the
political (democratic or less-
than-democratic) ideology or the moral virtue of the government
of the target state or of
either side in the internal war. War apart, there was general
agreement, too, that the
Charter prohibits intervention by any state for humanitarian
purposes.
III.
In my view, unilateral intervention, even for what the
intervening state deems to be

important humanitarian ends, is and should remain unlawful.
But the principles of law, and
the interpretations of the Charter, that prohibit unilateral
humanitarian intervention do not
reflect a conclusion that the "sovereignty" of the target state
stands higher in the scale of
values of contemporary international society than the human
rights of its inhabitants to be
'I do not address here whether the execution of the military
intervention was subject to and may have violated
any of the laws of war.
824
2013 12:06:59 PM
INTERVENTION 825
protected from genocide and massive crimes against humanity.
The law that prohibits
unilateral humanitarian intervention rather reflects the judgment
of the community that
the justification for humanitarian intervention is often
ambiguous, involving uncertainties
of fact and motive, and difficult questions of degree and
"balancing" of need and costs. The
law against unilateral intervention may reflect, above all, the
moral-political conclusion that
no individual state can be trusted with authority to judge and

determine wisely.
But, as Professor Richard Falk wrote long ago: "The
renunciation of [unilateral]
intervention does not substitute a policy of nonintervention; it
involves the development of
some form of collective intervention."2 The need for
intervention may sometimes be
compelling, and the safeguard against the dangers of unilateral
intervention lies in devel-
oping bona fide, responsible, collective intervention.
Serious efforts to develop "some form of collective
intervention" began soon after the end
of the Cold War, when it ceased to be hopeless to pursue
collective intervention by authority
of the UN Security Council. In 1991 and 1992, the Security
Council authorized military
intervention for humanitarian purposes in Iraq and Somalia. In
principle, those interven-
tions were notjustified as "humanitarian" (a term that does not
appear in the UN Charter);
the theory supporting such actions was that some internal wars,
at least when accompanied
by war crimes, and massive human rights violations and other
crimes against humanity even
if unrelated to war, may threaten international peace and
security and therefore were within
the jurisdiction and were the responsibility of the Security
Council under Chapters VI and
VII of the Charter. Of course, under Article 27(3) of the
Charter, a Security Council
resolution to authorize intervention, like other "nonprocedural"
matters, was subject to veto
by any permanent member. Thus, by the sum (or product) of law
and politics, humanitarian

intervention by any state was prohibited; humanitarian
intervention was permissible if
authorized by the Security Council, but a single permanent
member could prevent such
authorization.
Kosovo surely threatened international peace and security, as
the Security Council had
held in several prior resolutions. And, in 1998-1999, when
negotiation and political-
economic pressures appeared futile, for many Kosovo begged
for intervention by any states
that could do so, and by any means necessary. NATO heeded
the call. It did not ask leave
or authorization from the Security Council.3
The reason why NATO did not seek explicit authorization from
the Security Council is
not difficult to fathom. Even after the ColdWar, geography and
politics rendered unanimity
by the permanent members in support of military action
(especially in the Balkans) highly
unlikely. Evidently, NATO decided that not asking for
authorization was preferable to
having it frustrated by veto, which might have complicated
diplomatic efforts to address the
crisis, and would have rendered consequent military action
politically more difficult.
Subsequent events confirmed that fear of the veto had not been
unfounded. After the
NATO action was begun, the representative of the Russian
Federation proposed a resolution
in the Security Council to declare the NATO action unlawful
and to direct that it be
terminated.4 In the vote, the proposed resolution was supported

by three states, including
Russia and China, two of the permanent members. It was not
implausible for NATO to have
assumed that Russia, or China, would have vetoed a resolution
authorizing military
intervention by NATO.
2 RICHARD A. FALK, LEGAL ORDER IN A VIOLENT
WORLD 339 (1968).
3 The United Kingdom apparently thought that authorization by
the Security Council was not necessary. The
United States apparently considered that the Council had
provided the necessary authorization by implication,
in the earlier resolutions on Kosovo, Resolutions 1160 (Mar. 31,
1998), 1199 (Sept. 23, 1998), and 1203 (Oct. 24,
1998).
4 See Security Council Rejects Demand for Cessation of Use of
Force against Federal Republic of Yugoslavia, UN Press
Release SC/6659 (Mar. 26,1999)
<http://www.un.org/News/Press/docs/1999/19990326.sc6659.ht
ml>.
2013 12:06:59 PM
[Vol. 93:824
T.

Was the NATO action unlawful?
The Charter prohibition on intervention, even for humanitarian
ends, is addressed to
individual states, but what the Charter prohibits to a single state
does not become per-
missible to several states acting together. Intervention by
several states is "unilateral," i.e.,
"on their own authority," if not authorized by the Security
Council. Was NATO intervention
in Kosovo authorized? Was it ajustifiable exception?
The argument for NATO might go something like this.
Human rights violations in Kosovo were horrendous; something
had to be done. The
Security Council was not in fact "available" to authorize
intervention because of the Veto.
Faced with a grave threat to international peace and security
within its region, and with
rampant crimes reeking of genocide, NATO had to act.
NATO intervention was not "unilateral"; it was "collective,"
pursuant to a decision by a
responsible body, including three of the five permanent
members entrusted by the UN
Charter with special responsibility to respond to threats to
international peace and security.
NATO did not pursue narrow parochial interests, either of the
organization or of any of its
members; it pursued recognized, clearly compelling
humanitarian purposes. Intervention
by NATO at Kosovo was a "collective" humanitarian
intervention "in the common interest,"5
carrying out the responsibility of the world community to
address threats to international

peace and security resulting from genocide and other crimes
against humanity. The
collective character of the organization provided safeguards
against abuse by single powerful
states pursuing egoistic national interests. And action by NATO
could be monitored by the
Security Council and ordered to be terminated. The NATO
action in Kosovo had the
support of the Security Council. Twelve (out of fifteen)
members of the Council voted to
reject the Russian resolution of March 26, thereby agreeing in
effect that the NATO
intervention had been called for and should continue. And on
June 10, the Security
Council, in Resolution 1244 approving the Kosovo settlement,
effectively ratified the NATO
action and gave it the Council's support.
V.
In my view, the law is, and ought to be, that unilateral
intervention by military force by a
state or group of states is unlawful unless authorized by the
Security Council. Some-
governments and scholars-thought that NATO too needed, but
had not had, such
authorization, at least ab initio. But many-governments and
scholars-thought that
something had to be done to end the horrors of Kosovo, that
NATO was the appropriate
body to do it, and perhaps the only body that could do it, and
that the law should not, did
not, stand in the way.
In 1991 Professor Oscar Schachter wrote:

Even in the absence of such prior approval [by the Security
Council], a State or
group of States using force to put an end to atrocities when the
necessity is evident
and the humanitarian intention is clear is likely to have its
action pardoned. But, I
believe it is highly undesirable to have a new rule allowing
humanitarian intervention,
for that could provide a pretext for abusive intervention. It
would be better to
acquiesce in a violation that is considered necessary and
desirable in the particular
circumstances than to adopt a principle that would open a wide
gap in the barrier
against unilateral use of force.6
5 Comrpare: "to ensure, by the acceptance of principles and the
institution of methods, that armed force shall not
be used, save in the common interest." UN CHARTER,
Preamble (emphasis added).
6 OSCAR SCHACHTER, INTERNATIONAL LAW IN
THEORY AND PRACTICE 126 (1991).
2013 12:06:59 PM
INTERVENTION 827
Does that apply to Kosovo? Is it better to leave the law alone,
while turning a blind eye

(and a deaf ear) to violations that had compelling moral
justification? Or should Kosovo
move us to push the law along, to bring it closer to what the law
ought to be?
Humanitarian intervention on the authority of the Security
Council recognizes that the
Charter prohibition on the use of force does not apply to the use
of force "in the common
interest"; it also recognizes that intervention authorized by the
Security Council affords the
strongest safeguard against abuse of humanitarian intervention
that the contemporary
political system provides. But, as Kosovo illustrated, the
Council, as presently constituted and
under prevailing procedures, remains seriously defective and
may sometimes be unavailable
for that awesome responsibility.
NATO did not seek the Council's mantle, presumably because of
the fear of the veto. We
are not about to see a major restructuring in the composition of
the Security Council, and
we are not likely soon to see an end to the veto generally. But
might we pursue an exception
to the veto, as regards humanitarian intervention, in practice if
not in principle?
That may be what Kosovo in fact achieved, in some measure.
For Kosovo, Council
ratification after the fact in Resolution 1244-formal ratification
by an affirmative vote of
the Council-effectively ratified what earlier might have
constituted unilateral action
questionable as a matter of law. Unless a decision to authorize
intervention in advance can

be liberated from the veto, the likely lesson of Kosovo is that
states, or collectivities,
confident that the Security Council will acquiesce in their
decision to intervene, will shift
the burden of the veto: instead of seeking authorization in
advance by resolution subject
to veto, states or collectivities will act, and challenge the
Council to terminate the action.
And a permanent member favoring the intervention could
frustrate the adoption of such
a resolution.
VI.
Neither one state nor a collectivity of states should be
encouraged to intervene on its own
authority in expectation, even plausible expectation, of
subsequent ratification or acqui-
escence by the Security Council. But that is likely to happen, as
it did as regards Kosovo,
unless the Security Council and the permanent members in
particular are prepared to agree
to adapt their procedures to permit the Council's consideration
in advance, with the
understanding that the veto would not be operative.
Changes in the law and in UN procedures and understandings to
that end might begin
with Chapter VIII of the Charter.
Article 52 (1) provides:
Nothing in the present Charter precludes the existence of
regional arrangements 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.
Article 53(1) adds: "The Security Council shall, where
appropriate, utilize such regional
arrangements or agencies for enforcement action under its
authority."
Article 52 readily lends itself to using NATO and similar
regional bodies, for pacific
settlement of disputes within their region. Article 53 also
contemplates that the Security
Council might use regional arrangements for "enforcement
action under its authority." It
is unrealistic, and perhaps undesirable, to ask the Security
Council to give general approval
in advance for regional groupings to engage in military
humanitarian intervention. But
should the law and practice be that a recognized, responsible
regional collective body may
intervene for bona fide humanitarian purposes unless the
Security Council orders it to cease
and desist-by a vote not subject to the veto? Or, better, might
there be agreement that
2013 12:06:59 PM

[Vol. 93:828
recognized regional bodies may intervene if authorized in
advance by vote of the Security
Council not subject to veto?
Kosovo demonstrates yet again a compelling need to address the
deficiencies in the law
and practice of the UN Charter. The sometimes-compelling need
for humanitarian
intervention (as at Kosovo), like the compelling need for
responding to interstate
aggression (as against Iraq over Kuwait), brings home again the
need for responsible
reaction to gross violations of the Charter, or to massive
violations of human rights, by
responsible forces acting in the common interest. We need
Article 43 agreements for
standby forces responsible to the Security Council, but neither
action by the Security
Council under Article 42, nor collective intervention as by
NATO at Kosovo, can serve
without some modification in the law and the practice of the
veto. The NATO action in
Kosovo, and the proceedings in the Security Council, may
reflect a step toward a change in
the law, part of the quest for developing "a form of collective
intervention" beyond a veto-
bound Security Council. That may be a desirable change,
perhaps even an inevitable
change. And it might be achieved without formal amendment of
the Charter (which is
virtually impossible to effect), by a "gentlemen's agreement"
among the permanent
members, or by wise self-restraint and acquiescence. That, some
might suggest, is what the

law ought to be, and proponents of a "living Charter" would
support an interpretation of
the law and an adaptation of UN procedures that rendered them
what they ought to be.
That might be the lesson of Kosovo.
Louis HENKIN
NATO's CAMPAIGN IN YUGOSLAVIA
The North Atlantic Treaty Organization's seventy-eight-day
bombing campaign in
Yugoslavia, the first large-scale military action by the alliance
in its history, has given rise to
a casuist's dilemma. How can an effort so broadly supported in
its objectives-to stem
Belgrade's expulsion of ethnic Albanians from Kosovo and
block a gross violation of
international law-be so uncertain in its legal basis?
The lack of any simple precedent for the air campaign is only a
starting place in deciding
upon legality, for the formal system of international law cannot
claim a monopoly on
generative power. The lack of any single source of rules or
ultimate arbiter of disputes in
international affairs means that state practice remains key to the
shaping of legal norms.
When an action is deemed morally urgent by a majority of
states-even an action involving
the use of force-it is likely to shape a legal justification to
match.
The war over Kosovo may mark the end of Security Council
classicism-the common
belief that all necessary and legitimate uses of force outside the

Council's decision can
necessarily be accommodated within the paradigm of interstate
self-defense. It may also
mark the emergence of a limited and conditional right of
humanitarian intervention,
permitting the use of force to protect the lives of a threatened
population when the decision
is taken by what most of the world would recognize as a
responsible multilateral organiza-
tion and the Security Council does not oppose the action.
The circumstances that gave rise to the Kosovo intervention are
familiar. Kosovo gained
autonomy within the state of Serbia in 1946, and this special
status was confirmed in Marshal
Tito's 1974 Yugoslav Constitution. In 1989, Belgrade revoked
the province's autonomy,
following the assertion by Serbian President Slobodan
Milosevic that the Serb minority in
Kosovo was at risk. Kosovo Albanians, facing discrimination in
public and private
employment and in the exercise of civil rights, resorted to the
development of parallel
national institutions and many sought independence using the
familiar techniques of
2013 12:06:59 PM
http://www.jstor.org/page/info/about/policies/terms.jspArticle
Contentsp. 824p. 825p. 826p. 827p. 828Issue Table of
ContentsThe American Journal of International Law, Vol. 93,
No. 4 (Oct., 1999), pp. 771-1013+i-viVolume Information [pp.
]Front Matter [pp. ]Joint Development of Common Offshore Oil
and Gas Deposits: "Mere" State Practice or Customary

International Law? [pp. 771-804]Duty and Discretion in
International Arbitration [pp. 805-823]Editorial Comments:
NATO's Kosovo InterventionKosovo and the Law of
"Humanitarian Intervention" [pp. 824-828]NATO's Campaign in
Yugoslavia [pp. 828-834]Anticipatory Humanitarian
Intervention in Kosovo [pp. 834-841]Kosovo: A "Good" or
"Bad" War? [pp. 841-847]Kosovo, World Order, and the Future
of International Law [pp. 847-857]Lessons of Kosovo [pp. 857-
860]Kosovo's Antinomies [pp. 860-862]Notes and
CommentsRocks that Cannot Sustain Human Habitation [pp.
863-878]Contemporary Practice of the United States Relating to
International Law [pp. 879-912]International
DecisionsDifference Relating to Immunity from Legal Process
of a Special Rapporteur of the Commission on Human Rights.
Advisory Opinion [pp. 913-923]Case Concerning the Vienna
Convention on Consular Relations (Federal Republic of
Germany v. United States). Provisional Measures Order [pp.
924-928]Legality of Use of Force (Yugoslavia v. Belgium)
(Yugoslavia v. Canada) (Yugoslavia v. Germany) (Yugoslavia
v. Italy) (Yugoslavia v. The Netherlands) (Yugoslavia v.
Portugal) (Yugoslavia v. Spain) (Yugoslavia v. United
Kingdom) (Yugoslavia v. United States) [pp. 928-933]Waite
and Kennedy v. Germany, Application No. 26083/94; Beer and
Regan v. Germany, Application No. 28934/95 [pp. 933-
938]Charte europeenne des langues regionales ou minoritaires,
Decision No 99- 412 DC [pp. 938-942]Current
DevelopmentsThe ILO Convention on the Worst Forms of Child
Labor [pp. 943-948]The United Nations Group of Experts for
Cambodia [pp. 948-953]Hydro-Diplomacy in South Asia: The
Conclusion of the Mahakali and Ganges River Treaties [pp. 953-
962]Book Reviews and NotesReview: untitled [pp. 963-
965]Review: untitled [pp. 965-967]Review: untitled [pp. 967-

991]Briefer NoticesReview: untitled [pp. 991-992]Books
Received [pp. 992-994]International Legal Materials [pp. 995-
996]Table of Cases [pp. 997-1000]Back Matter [pp. ]
POL 101 World Politics
Homework #2
Details:
Deadline: the date of Midterm #2 in class.
Must be typed and printed. Hard copy submissions only. No
email attachments are accepted.
Recommended format: Times New Roman 12 font, single-
spaced, 1 inch margins.
Instructions:
I. Read the two articles posted on Blackboard:
1. Kosovo's Antinomies by Michael Reisman
2. Kosovo and the Law of "Humanitarian Intervention" by Louis
Henkin

II. Write a couple of paragraphs describing in your own words
the main argument in the paper by
Reisman.
III. Write a couple of paragraphs describing in your own words
the main argument in the paper
by Henkin.
For the above, do not use copy and paste; instead, use your own
words.
IV. Write a couple of paragraphs outlining your own opinion on
which argument, Reisman’s or
Henkin’s, you find more convincing. Explain why you think so.
V. Write a couple of paragraphs describing how the debate
about humanitarian intervention is
relevant to the crises in Syria and/or Ukraine. Which position,
Reisman’s or Henkin’s, is more
appropriate for these crises?
The homework should not exceed two single-spaced pages.

Kosovos AntinomiesAuthor(s) W. Michael ReismanSource Th.docx

Kosovos AntinomiesAuthor(s) W. Michael ReismanSource Th.docx

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