[Congressional Record Volume 140, Number 57 (Wednesday, May 11, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 11, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                        LAW AND THE ARMS EMBARGO

  Mr. MOYNIHAN. Mr. President, central to the Senate's debate on 
lifting the arms embargo on Bosnia must be our understanding of the 
U.N. Charter. There could hardly be a more appropriate anniversary for 
this debate. Exactly 50 years ago--throughout April and May of 1944--
Secretary of State Cordell Hull met with members of the Senate Foreign 
Relations Committee to develop the American negotiating positions on 
the U.N. Charter. The U.S. proposals hammered out in those meetings 
were presented at Dumbarton Oaks not 4 miles from here in the summer of 
1944 and then refined at the San Francisco Conference the following 
year.
  Does the U.N. Charter--the product of these prodigious labors--
provide the legal authority to the Security Council to forbid the 
United States to come to the aid of another sovereign state which is 
indisputably the subject of an armed attack?
  Mr. President, let me address two quite separate topics which have 
often been merged in this debate:
  Can we legally disregard the Security Council embargo on providing 
arms to Bosnia?
  And, quite a separate question, should we do so?
  First, has the Security Council exceeded its legal authority by 
forbidding members of the United Nations to come to Bosnia's defense? 
Put a different way, does the United States have the legal right to 
provide arms to Bosnia?
  The answer is yes.
  I do not relish making this case. The Security Council is the crown 
jewel of the U.N. Charter. After years--no, decades--of impotence it 
has emerged from the cold war to begin at last to function as Hull, 
Stettinius, Vandenberg, Connally, and the other founders of the United 
Nations believed it could. In the gulf war the Council authorized, 
mobilized, and legitimized a collective response to aggression. The 
charter worked.
  I know well the arguments that are made against unilaterally lifting 
the arms embargo. Most do not really address the right of the United 
States to do so. Rather they address the wisdom of such action.
  But there is a straightforward legal case against unilateral action 
by the United States. The Security Council acted under chapter VII. It 
has repeatedly reaffirmed the resolutions which imposed the embargo. 
Its decisions are binding under article 25. We agreed to the embargo--
we could have vetoed it after all--and we also agreed to be bound by 
Security Council decisions when we ratified the charter.
  What we did not agree to--what the U.S. delegation to the San 
Francisco conference specifically and successfully opposed--was the 
notion that the Security Council could both fail in its responsibility 
to maintain international peace and forbid other states to step into 
the breach and come to the aid of a member state which was under an 
armed attack.
  The impossible burden of those who oppose lifting the arms embargo 
unilaterally is that they must make the case that the Security Council 
has the legal authority to order the United States to stand by and let 
an innocent victim of aggression to be dismembered. That is what 
article 51 was specifically drafted to prevent.
  None of the usual debates about Article 51 apply here. There is no 
serious dispute about whether Bosnia is the victim of an armed attack. 
Nor any dispute as to whether it has genuinely requested assistance. 
Nor can one seriously argue that the Security Council has ``taken 
measures necessary to maintain international peace and security.'' It 
has not.
  Opponents of lifting the embargo maintain that the Charter gives the 
Security Council the authority to impair Bosnia's right of collective 
self defense although the Council has failed to ``maintain * * * 
international peace and security.'' But that is precisely and 
explicitly what article 51 says the charter does not give the Council 
the authority to do:

       Nothing in the present Charter shall impair the inherent 
     right of individual or collective self defense if an armed 
     attack occurs against a Member of the United Nations, until 
     the Security Council has taken measures necessary to maintain 
     international peace and security.

The language could not be more explicit.
  Members of the United States delegation to the San Francisco 
conference were at first opposed to including any reservation on the 
right of self defense. They felt that the right was so obvious and so 
fundamental that it was both unnecessary and unwise to define this 
``inherent'' right because such a provision might be used to try to 
limit the right of self defense. The present debate is ample proof that 
this was a well-founded concern.
  However, of greater concern to the United States delegation was 
securing explicit recognition that the United States had the right to 
come to the aid of any state under attack in the Western Hemisphere 
without waiting for Security Council authorization and notwithstanding 
any use of the veto in the Council to block United Nations action. The 
United States was committed under the Act of Chapultepec to come to the 
defense of its Latin American allies. This was an extremely important 
issue for the Latin American States--and for the congressional members 
of the delegation. Preparing for the San Francisco Conference the U.S. 
delegation had what Senator Vandenberg described as ``acrimonious'' 
debate on the issue. According to his account:

       [John Foster] Dulles argued that there is nothing in 
     Dumbarton Oaks which prohibits ``self defense'' and that 
     under the Chapultepec agreement ``self defense'' in the 
     Western Hemisphere is a partnership affair and that the 
     Monroe Doctrine is still part of it. I served notice on the 
     Delegation, as a matter of good faith, that if this question 
     is not specifically cleared up in the Charter, I shall expect 
     to see a Reservation on the subject in the Senate and that I 
     shall support it.

According to Ruth Russell's indispensable study of the history of the 
U.N. Charter, when the delegation drafted and proposed article 51 it 
emphasized in its discussions with other delegations that

       * * * the United States had no intention of impairing the 
     effectiveness of the proposed organization through its 
     amendment but that it faced a very practical problem in 
     getting the treaty through the Senate.

Thus, it seems clear that the Senate would not have ratified the 
charter without explicit recognition of the inherent right of self 
defense, either in the form of an article in the charter or as a U.S. 
reservation to the treaty.
  In a dispatch to the New York Times from the San Francisco 
Conference, James Reston described the breakthrough which produced 
article 51:

       San Francisco, May 15 [1945].--President Truman broke the 
     deadlock today between the Big Five and the Latin American 
     nations over the relations between the American and world 
     security systems.
       After over a week of negotiating, during which American 
     foreign policy was being made and remade by a bi-partisan 
     conference delegation, the president gave to the Latin 
     American nations the reassurance which they wanted before 
     accepting the supremacy of the World Security Council in 
     dealing with disputes in the Western Hemisphere * * *.
       This assurance was announced late tonight by Secretary 
     Stettinius, who said that an amendment to the Dumbarton Oaks 
     proposals would be proposed reading substantially as follows:
       ``Nothing in this charter impairs the inherent right of 
     self defense, either individual, or collective, in the event 
     that the Security Council does not maintain international 
     peace and security and an armed attack against a member state 
     occurs * * *.''

It was taken to be significant at the time that an original draft which 
stated that the Security Council must first attempt to take effective 
action and ``fail'' was changed at the suggestion of Cordell Hull to 
state that the right of self defense arose immediately once ``an armed 
attack * * * occurs'' and continues until such time as the Security 
Council has taken adequate measures to actually ``maintain'' peace and 
security. Ruth Russell explains the reason for the change: ``The fact 
of an attack, in other words, would show that the Council had already 
`failed.''' As revised and adopted, article 51 made clear that the 
right of self defense arose the minute that an armed attack occurred 
and continued until the time that it is no longer necessary because the 
Security Council is maintaining the peace. The opponents of lifting the 
embargo make an argument which is simply inconsistent with the plain 
language of article 51 and its drafting history: the Security Council 
can impair the inherent right of collective self defense even if it has 
``failed'' to restore peace and even if it has not ``taken measures 
necessary'' to maintain peace.
  Mr. President, let me address the argument that the United States 
voted for the arms embargo. This is, of course, true. But President 
Clinton has now stated publicly that the United States would like to 
lift the arms embargo. We would like to take more effective action. But 
we are being prevented from doing so for precisely the reason that the 
United States--and the Senate specifically--insisted upon article 51: 
we are being stopped from taking stronger Security Council action by 
the ``Great Power'' veto.
  Not only does the United States now favor lifting the arms embargo, 
the General Assembly voted 109 to 0 with 57 abstentions that the 
embargo should be lifted and that members should assist in Bosnia's 
self defense. Not a single member of the General Assembly was willing 
to vote against Resolution 48/42 urging the Security Council to exempt 
Bosnia from the arms embargo and fulfill ``its responsibility under 
Article 24 of the Charter'' to maintain peace. The resolution appears 
to challenge the legal validity of the embargo by expressly urging,

       Member States * * * to extend their cooperation to the 
     Republic of Bosnia and Herzegovina in [the] exercise of its 
     inherent right of individual and collective self-defence in 
     accordance with Article 51 of Chapter VII of the Charter.

To state again, not one nation voted against this resolution.
  This General Assembly resolution raises a final important point about 
the charter. Article 24 assigns the Security Council not just powers, 
but ``responsibilities'' and ``duties.'' It also states that the 
Council must exercise its powers ``in accordance with the Purposes and 
Principles of the United Nations.'' Foremost among those purposes are 
to ``maintain international peace and security'' and ``to take 
effective collective measures * * * for the suppression of acts of 
aggression or other breaches of the peace * * *.'' It is not a legal 
use of the Council's powers to try to force Bosnia to accept a 
partition plan which effectively dismembers the state. It is not a 
legal use of the Council's powers to maintain an arms embargo so as to 
aid a ``traditional ally'' of one of the permanent members; namely, 
Serbia.
  Mr. President, it gives me no great pleasure, as I have said, to 
argue that the Security Council has illegally impaired Bosnia's 
inherent right of collective self defense. But after long consideration 
I have concluded that it clearly has.
  Let me now address the more common arguments against lifting the arms 
embargo unilaterally, namely variations of the argument that we should 
not lift the embargo.
  First, we are asked, if we lift this embargo how will we resist other 
nations lifting embargoes on Iraq, Serbia, and Libya? How, that is, 
shall we distinguish between lambs and lions, between victims and 
aggressors? By looking at the facts. Iraq was an aggressor, not the 
victim of ``an armed attack'' giving rise to article 51 rights. Serbia 
is not subject to an armed attack. Nor is Libya. Each of these states 
is as clearly an aggressor or violator of international law as Bosnia 
is clearly a victim.
  To be clear: lifting the embargo on Bosnia creates no legal or 
factual precedent for ignoring valid enforcement action taken against 
an aggressor state. Article 51 applies solely to the victim of an act 
of aggression.
  I do not doubt that other states will make this argument, as flawed 
as it clearly is. Should we shrink from action because other nations 
might make false and self-serving arguments? It is the burden of law 
and diplomacy to resist and disprove fallacious, self-serving claims.
  The next common argument is that by unilaterally lifting the embargo 
we will be undermining the authority of the Security Council. To which 
it must be said that it is the members of the Security Council who have 
done this by shrinking from the Council's duty. The Security Council 
has powers, yes, but the charter states more specifically that it has 
the ``responsibility'' to maintain international peace and security.
  The Security Council has shirked this responsibility. This is painful 
to say. All the more so, because I openly concede that by unilaterally 
lifting the arms embargo on Bosnia the United States would indeed 
injure still further the status of the Security Council and set back 
the tenuous, difficult process of building respect for its decisions.
  But the alternative is far worse. By failing to fulfill its 
responsibility to maintain international peace and security and 
simultaneously forbidding other states to come to Bosnia's assistance 
the Security council has undermined the very essence of the charter 
itself. It has converted the charter from an instrument for effective 
collective response to aggression into the proverbial ``suicide pact.'' 
Far better for the United States to act unilaterally to vindicate the 
foremost purpose of the charter and the ``inherent'' right of self 
defense than to acquiesce in an utterly ineffective Security Council 
action which cannot be removed due to the great power veto.
  Opponents of lifting the embargo next plead that doing so would 
endanger the United Nations forces in Bosnia. To this argument I am 
quite sensitive. Over the strong objection of the Department of Defense 
I travelled to Sarajevo in November 1992. I met with the U.N. 
commanders and relief workers. They are gallant and brave, doing an 
almost impossible job without sufficient resources. They deserve our 
utmost support. But if we are to refrain from helping the Bosnians out 
of concern for their welfare, let us at least be candid and call the 
members of UNPROFOR what they have become: hostages.

  Then let us ask by what principle of law or equity we can justify 
asking Bosnia to accept its dismemberment in order to protect U.N. 
forces?
  When we lift the embargo we should simultaneously take steps to 
consolidate and reinforce UNPROFOR. We must be prepared to launch air 
strikes to protect them. We must emphasize to Serbia--and not just to 
the Bosnian Serbs--that it will be held accountable for actions taken 
against UNPROFOR.
  One argument that I find more than curious is that providing arms 
will encourage the Bosnian government to hold out for a better deal at 
the negotiating table. That is, if Bosnia is given the means to defend 
itself it may not accept the Carthaginian peace which others have in 
mind for it. Having repeatedly, vigorously proclaimed that the 
acquisition of territory by force is utterly unacceptable, the Security 
Council would in effect be saying: ``Take the deal; it's the best you 
can get.''
  Mr. President, I do not minimize the very important and practical 
arguments that have been made concerning the possibility of an 
accelerated Serb assault, the potential for Bosnian intransigence and 
the danger for U.N. forces. These are real issues, not to be minimized. 
But they are no more real than the Serbian shells which repeatedly 
slammed into the hospital in Gorazde. Or the Serbian snipers who have 
coolly and methodically butchered civilians in Sarajevo. Or the plight 
of the victims of ethnic cleansing.
  I will close with a quotation from an editorial from the New Republic 
addressed to the President:

       [We] urge you to act at once in raising the unneutral 
     [arms] embargo * * *.
       We do not suppose you would be intimidated, in executing a 
     policy in which you believed, by the prospect of losing 
     votes--but in this case there is not even a danger of 
     following an unpopular course if you should act.
       Why do you not act, and act at once? Why did you not act 
     long ago? We confess that your policy in this matter is a 
     tragic mystery to us.
       Nobody has more forcefully than you denounced the 
     aggressors and enemies of democracy in the present world * * 
     *. Do you not know that the so-called ``non-intervention'' 
     policy, under which we refuse to permit shipment of arms to 
     either side, is a cloak under which * * * [one side is being 
     armed] to the teeth, while the * * * [other] is starved of 
     assistance * * * ?
       Perhaps you believe that it is too late to do anything. But 
     you probably believed that last spring * * *. Disaster may be 
     imminent, but we should not accept it until we are forced to 
     do So * * *.
       Mr. President, we urge you not to hesitate or delay. We can 
     imagine no valid reason for you to do so. You have spoken 
     bravely--in some cases, we believe, so bravely as to be 
     foolhardy. But here is something that you can safely do--and 
     do now. Why not make your acts correspond with your words?

  This editorial could be from the current issue of the New Republic. 
But it is not. Indeed, it was published over 55 years ago--on February 
1, 1939--and was about an equally unnuetral arms embargo: the embargo 
which prevented the democratic states from aiding Republican Spain and 
predetermined that Franco would win the Spanish Civil War with the aid 
of Hitler and Mussolini.
  Mr. President, the Spanish Civil War was the first contest between 
the democracies and the totalitarian Axis states which culminated in 
global conflagration. The victorious nations which prevailed in that 
vast struggled resolved to ``save succeeding generations from the 
scourge of war * * *.'' They wrote the U.N. Charter, the Geneva 
Conventions, and the Genocide Convention. All are at risk in Bosnia--as 
is the credibility of our commitment to them.

                          ____________________