Kosovo in 1999 and Iraq in 2003 are the two prominent examples where the Security Council was bypassed, but they are not the only ones. The United States, under the Clinton administration, sent troops to Haiti in 1994 and bombed Iraq in Operation Desert Fox in 1998. Interventions in Panama and Grenada were also carried out without recourse to the Security Council. This reflects the permanent attitude of the United States, under any administration and at any time, to act with the Security Council where and when possible, but to bypass the Council when necessary, that is, when American interests are involved. Recently, President George W. Bush even went one step further when, in his State of the Union address on January 20, 2004, he stated: “The United States will never seek permission to defend the security of our country.”
This brings us to the heart of the question regarding the validity and relevance of public international law in this new era after the end of the cold war and after 9/11. It is my firm conviction that public international law, codified for the past sixty years, continues to reflect the practice and opinio iuris of the international community. Recent events, dramatic and shocking as they may be, do not affect the traditional rules of international cooperation. The provisions of the Declaration of Principles of International Law relating to friendly relations and cooperation between States in accordance with the Charter of the United Nations remain valid, although this document largely reflects international law that existed during the Cold War. The same applies to the principles enshrined in the 1975 Helsinki Declaration. The Helsinki Declaration and the documents adopted at subsequent follow-up conferences continue to reflect the basic principles and values among the expanded members of the Organization for Security and Cooperation. in Europe. Likewise, international law relating to fundamental interstate relations such as: the law on diplomatic and consular relations, the law of the sea, the law of treaties, etc. they do not seem to be affected by recent events. However, one could imagine situations where those rules can be violated, reported, suspended, or otherwise terminated. But existing international law is perfectly capable of dealing with such situations on the basis of existing principles of the law of treaties, the law of State responsibility or other general principles. Therefore, it seems that the ongoing debate on the changing nature of the international legal order can be summarized in two main themes, namely, the role of the Security Council and international law on the use of force.
By subscribing to the Charter of the United Nations, Member States recognized that it acts on their behalf. The member states also agreed to carry out the decisions of the Security Council. Both the action of the Council and its decisions imply that they have been validly adopted in accordance with the Charter. The Charter contains some clear provisions on the procedural requirements that must be met for the action and decisions to be valid. One of these requirements is that actions and decisions on matters of substance require the cooperation of at least nine members of the Council, including the five permanent members. The possibility of veto by a permanent member is therefore a constitutionally guaranteed right. The immediate effect of the absence of the required votes is that there is no decision or action by the Council: the condition for its mandatory nature is not met.
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