Recourse to Force: State Action Against Threats and Armed Attacks

BOOK REVIEWS Recourse to Force: State Action Against Threats and Armed Attacks. By Thomas M. Franck. Cambridge: Cambridge University Press, 2002. Pp. xii, 205. $55.00.

The law governing the use of military force (jus ad bellum) by states is at the tip of the proverbial iceberg. Whereas most international law operates quietly and effectively below the surface, the rules on the use efforce are visibly disputed, frequently violated, and all too evidently politicized. The rules, and their shortcomings, have become even more noticeable following recent military actions in Kosovo, Afghanistan, and Iraq, and associated disagreements over claimed rights to humanitarian intervention, self-defense against terrorism, and preemptive self-defense. Can we realistically expect governments to abide by long-established rules if those rules impede rather than assist their efforts to deal with contemporary security challenges? Or could the rules be stretched or even changed to accommodate new realities? In this important book, Professor Thomas Franck of New York University Law School provides a thoughtful and thought-provoking explanation as to how the rules governing the use efforce could adapt to a changing international climate that, to some, seems highly inhospitable to law.

As Franck explains, the drafters of the UN Charter could not have anticipated the profound alterations that the international system would undergo as a result of the "end of colonialism and communism, the rise of a democratic entitlement, and a tectonic shift in public values" (p. 4). Nor have the permanent members of the Security Council been able to agree on formal amendments that could overcome problems posed by their vetoes, and by the drafters' assumptions as to the continuing state-centric character of war and conventional character of weaponry. But rather than lapsing into rigid obsolescence, the Charter has changed informally, through a process of reinterpretation that is not unrelated to the way in which customary international law evolves.

As is well known, customary international law results from the practice and opinions of states. But the rules on the use of force are a complex mix of customary international law and Charter provisions. And the Charter itself is an unusual instrument, in that it both asserts normative superiority over other treaties and establishes the close semblance of executive, legislative, and judicial branches: the Security Council, General Assembly...