Congress has neither a constitutional obligation nor a right to declare war before the United States joins in a United Nations-sponsored police action in the Persian Gulf.
The U.N. Charter prohibits war-making by members except in self-defense. In seeking to abolish war it substitutes a different mechanism, police action, for defending countries against illegal aggression.
War and police action are not the same thing, and the Security Council's resolution approving the use of military force in the gulf after Jan. 15 validates police action.
The Cold War thwarted the new system. Only now are we beginning not only to understand its implications, we also are seeing the United Nations working as it was first intended.
The lawsuit brought by congressmen that seeks to require a congressional declaration of war before sending troops into action in the gulf is caught in a time warp: Such a declaration is inapplicable to U.N. police actions.
Congress, under the War Powers Act, has the right to vote on U.S. participation within 60 days of the beginning of hostilities. It still holds the purse strings. So it is hardly excluded from the decision-making process. But that process has changed.
The charter-drafting committees in 1945 outlawed the use of force as a way to settle grievances, instead substituting procedures for negotiation, conciliation and adjudication.
If a nation defies its commitment to peace, the charter enables the Security Council, under Article 42, to authorize the use of international police power. The committee drafting Article 42 agreed that "when diplomatic, economic or other measures are considered by the Security Council to be inadequate," the council may "undertake such aerial, naval or other operations as may be necessary to maintain or restore international peace and security."
The Senate, when debating the charter, was aware of the implications of the new world order. It also expected to ratify an agreement, to be negotiated soon, by which the United States and others would make anticipatory commitments of troops to the Security Council.
Although no such agreement was signed, and the council devised other case-by-case ways to authorize police actions, the Senate's debate in 1945 on the proposed police force instructs us today. It turned on whether Congress would have to declare war before U.S. forces could go into action under Security Council auspices.
A reservation requiring such specific consent was opposed by the chairman of the Senate Foreign Relations Committee, Tom Connally, a Democrat. He was strongly supported by his Republican counterpart, Arthur Vandenberg: "If we were to require the consent of Congress to every use of our armed forces, it would not only violate the spirit of the charter, but it would violate the spirit of the Constitution" under which "the president has certain rights to use our armed forces in the national defense without consulting Congress."
Many of the same issues were debated again during passage of the U.N. Participation Act in 1945. Sen. Burton Wheeler's amendment requiring Congress to approve "whenever a decision to use United States armed forces arises in the Security Council" was easily defeated.
When North Korea invaded the South in 1950 the Security Council urged members to aid the victim under the policing power. Citing this authorization, Harry S. Truman sent air, sea and land forces. Congress generally applauded.
Sen. Paul Douglas, a liberal Democrat, thought this presidential action was "not an act of war, but, instead, merely the exercise of police power under international sanction." The conservative Republican Sen. William Knowland agreed.
In ratifying the charter, the United States became a part of a new order. The charter system does not leave room for each state, once the Security Council has acted, to defer compliance until it has authority from its own legislature. The authority to order a police action now requires a virtual consensus of the international community; to the extent that we require checks on presidential power, this is a formidable one.
The U.N. system may finally replace vigilante violence with global police-enforced security. It deserves a chance to show it can work.
THOMAS M. FRANCK directs the Center for International Studies at New York University's School of Law.