PERSPECTIVE ON THE PERSIAN GULF : Gulf War Isn’t Possible Without the U.N. : The charter precludes unilateral military action. The realities on the ground bear the same message.

Almost from the beginning of the Persian Gulf crisis, a chorus of pundits, often relying on (not-for-attribution) statements by high U.S. officials, has maintained that only military action will achieve America’s objectives. And last week, for the first time, President Bush and Secretary of State James A. Baker III expressly broached the possibility of the use of force against Iraq.

An unspoken assumption of this discussion is that the United States, even in the absence of another attack by Iraq or authorization by the Security Council, is legally free to take military action unilaterally. The argument is that the United States was exercising the inherent right of collective self-defense guaranteed by Article 51 of the U.N. Charter when it deployed forces in Saudi Arabia and the gulf after the attack on Kuwait. It is for the United States to decide, therefore, whether the measures taken so far are sufficient and, if not, what more is needed.

The United States took the same position in August on the use of naval force in the gulf to enforce U.N. sanctions. U.S. naval vessels fired shots across the bows of two Iraqi tankers. But in the end the President thought better of it. He did not order more action, and the ships continued on course. After a day or two, the Security Council authorized member states with naval forces in the gulf “to use such measures commensurate to the specific circumstances as may be necessary . . . to ensure strict implementation” of sanctions. The interception and boarding of vessels heading to or from Iraq was carried out under the authority of that resolution.

That seems to be what is required by Article 51 itself. It says that the inherent right of self-defense persists only “until the Security Council has taken the measures necessary to maintain international peace and security.”

Of course, if Iraq attacks, the United States would be free to respond. But without further provocation, the critical question is, who is to judge whether the actions taken so far by the council are sufficient to maintain international peace and security? Article 39 says that the council “shall . . . decide what measures shall be taken . . . to maintain or restore international peace and security.” Even more telling, Article 42, which empowers the Security Council to order the use of force, begins: “Should the Security Council consider that measures provided for in Article 41 (that is, diplomatic and economic sanctions) would be inadequate or have proved to be inadequate . . .” then it may order military action.

In the larger scheme of the charter, it is the Security Council that has “primary responsibility for the maintenance of international peace and security.” To carry out that responsibility, the council must have the authority to make the political judgments and to take the measures necessary to deal with the situation. This conception of the Security Council’s role reinforces the fundamental aim of the charter to limit unilateral use of force to the narrowest possible range.

During the Cold War, when the Security Council was immobilized by reciprocal vetoes, states exercising the right of self-defense could not be expected to forgo continuing action simply because the council was debating the situation, with no likelihood of a serious substantive outcome. Today, however, the President himself has acknowledged that the Security Council is working “as it was supposed to work.” The council addressed the situation promptly, adopted measures with real impact, including comprehensive and binding economic sanctions, and strengthened those measures as the need became apparent.

If the United Nations is working as intended, judgments about the ultimate objectives of its action, the adequacy of measures to be taken, the amount of time needed to give sanctions a chance to work and the like should be answered by the council. The United States has a very important voice in the process of reaching those decisions. To date, the President and U.N. Ambassador Thomas Pickering have exercised impressive leadership in the council’s deliberations. But if they cannot induce the others to agree that the use of force is necessary, the clear meaning of the charter is that unilateral action is precluded.

“Realists” often dismiss this kind of analysis as “legalistic”--an effort to impose abstract legal constraints on practical and decisive action. And lawyers who advise presidents are understandably reluctant to reduce options or otherwise tell him that he can’t do what he wants to do. In the gulf, however, as is so often the case, the international legal analysis highlights the practical realities of the situation.

Visions of surgical strikes and costless decapitating attacks may dance in the heads of armchair strategists and Pentagon planners, but in real life they almost never come off. A large-scale attack on Iraq, even if “successful,” would run high risks of significant casualties, including many noncombatants in Iraq and elsewhere, the destruction of major oil installations, which would send oil prices skyrocketing; severely negative long-term affects on the U.S. position with the Arab states and escalation to a general Middle Eastern war.

As a practical matter, it is no longer possible for the United States to use force in the gulf without the concurrence of the others engaged there. They, too, will be exposed to the military, political and economic consequences of any U.S. military action. Indeed, the first consequence of such action would be to shatter the international consensus that has so far given legitimacy and strength to the enterprise. Among the first defections could well be the Arab states that requested the U.S. presence in the first place, and without whose continuing support the enterprise could not be sustained. Secretary Baker’s current round of consultations in the Middle East and Moscow recognize these legal and practical realities.

U.S. actions in the gulf will have far-reaching implications for the new world order President Bush is trying to build. In a sense, we are beneficiaries of a second chance, something that doesn’t often happen in the inexorable world of international politics. It is almost as if the Security Council had been in suspended animation since 1945, and is now stirring to life new and untouched.

The most important long-term impact of the crisis may well be on this new and still fragile growth. If the Security Council is to be preserved and strengthened for the role it was designed to play, it cannot be used simply as a forum for consultation, even less so to provide legal cover for unilaterally mandated ends. As the organ of the international community with primary responsibility in situations threatening international peace and security, it must have the powers to decide when force is to be used. That means that the United States must abide by the council’s decisions even when we don’t agree with them.

In a world where power is increasingly diffused and mobilization of power on the basis of ideology is increasingly unavailable, the requirements of international law and practical international politics on this issue are one and the same.