With Thursday’s passage of United Nations Security Council resolution 1973, the United States is set to go to war against Libya. Removing Moammar Gadhafi from power would probably advance the cause of freedom, but the United Nations has no legal authority to take a step of this magnitude. By bowing to the will of the U.N. Security Council, President Obama is diluting the sovereign power of the United States.
The U.N. resolution authorizes member states to take a number of military and nonmilitary actions to protect the people of Libya from Col. Gadhafi's government. Under its own rules, however, the United Nations cannot legally authorize military action to shape the internal affairs of member states. Article 2 section 7 of the U.N. charter states that, “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.” Chapter VII of the charter, which enumerates U.N. intervention powers, applies only to international breaches of the peace. The December 1981 U.N. “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States” reaffirmed this principle with its solemn declaration that, “No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States.”
Five Security Council member states sat out the vote, including permanent members Russia and China, in addition to Germany, India and Brazil. China in particular objected to any action that would compromise Libya’s sovereignty, but did not veto the resolution. This may have been a political move, since the abstaining countries are now in a position to raise principled objections to whatever happens once force is utilized. To claim the United States forged an international consensus seems premature when Resolution 1973 did not have the support of countries representing 42 percent of the world’s population.
True to its internationalist instincts, the Obama administration would never contemplate an action that lacked U.N. approval, yet United Nations permission alone is inadequate. Sen. Richard Lugar, Indiana Republican, believes that the Congress should debate a declaration of war over intervening in Libya. But the White House has not sought even the type of congressional authorization for the use of force that President George W. Bush did before the invasions of Afghanistan and Iraq. It would be ironic to say the least if Mr. Obama waged war with less legal backing than his predecessor.
International military action in Libya, even coming this late in the game, will be decisive. Resolution 1973 authorizes “all necessary measures” to “protect civilians,” short of deploying ground troops, which still leaves a variety of potent options for coalition commanders. The stated policy of the United States has been and should remain regime change, but the White House must seek some form of congressional approval before military action is taken against Libya. The president cannot be seen as a mere instrument of the United Nations, which would relegate the U.S. Constitution to second-class status behind the U.N. Charter. If U.S. troops are going to be put in harm’s way, the authority must come from elected representatives in Washington, not from a bunch of international bureaucrats hanging out in Turtle Bay.
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By Andrew P. Napolitano
The president's men trash the Constitution to pursue antagonists