without instructions from Washington. However, such a vote would be an executive prerogative and therefore this assurance failed to persuade the Congress. The United States never joined the League of Nations.

The framers of the UN Charter at the San Francisco Conference in 1945 avoided any language which could be perceived as an automatic requirement to use force. Article 43 of the Charter provides that all members undertake to make available to the Security Council, in accordance with a special agreement, armed forces and assistance for the purpose of maintaining internal peace and security. These agreements “shall be subject to ratification by the signatory states in accordance with their respective constitutional processes" (Art 43). Therefore, the UN Charter is constructed so that Article 42, the only provision authorizing the use of force, is immediately followed by the provision for raising of an armed force which specifically acknowledges each country's constitutional process in the creation of such an armed force (Art 43).

However, the Security Council has never made an Article 43 agreement with any member state. In 1946, the Security Council directed the Military Staff Committee to draw up recommendations on basic principles which would govern Article 43 agreements. On 30 April 1947, the committee submitted its report. It contained 25 articles on which the permanent members of the Security Council had reached agreement and 16 articles on which they had not. The areas where no agreement could be reached included a timetable for withdrawing UN forces after use, the location of troops when not used by the UN, whether or not assistance and facilities included the provision of bases, and how specific the initial agreement should be about the nature of contributions. Intransigence on the part of the Soviet Union effectively killed the idea of consummating any Article 43 agreements. The Security Council dropped the idea of such agreements, and the Military Staff Committee became a moribund institution (Boulden).

United Nations Participation Act

The legislation which implemented the UN Charter for the United States was the United Nations Participation Act (Pub. L. 79-264). Enacted in 1945, this legislation specified the procedures by which the U.S. was to carry out its obligations under the Charter. It authorized the President to negotiate agreements with the Security Council to provide U.S. military forces on call to the Security Council for actions under Article 43 of the

UN Charter (Pub. L. 79-264, sec 6). The Act states that these agreements are subject to approval of the Congress by Act or joint resolution. However, once an Article 43 agreement has been made, further congressional authorization is not necessary before committing the troops to a UN operation.

Congress believed the UN needed a rapid response capability to be a creditable deterrent in preventing or containing breaches of the peace. They did not, however, wish to abdicate their war powers role. It was envisioned that these agreements would be for a small number of troops which could serve in a police action, but not large enough to participate in a war (Stromseth: 615-618).

In 1949 the Act was amended to allow the President to detail U.S. forces to the UN, but only in certain capacities (Pub. L. 81-341). The amended Act states that the President may assign up to 1,000 U.S. troops to the UN to serve in noncombat positions such as observers and guards (Pub. L. 81341, sec. 7). These troops can support UN operations for the settlement of disputes; however, they can not be involved in any enforcement actions

War Powers Resolution

In response to the Vietnam conflict and to assert its control over the warmaking process, on 7 November 1973 Congress passed the War Powers Resolution over President Nixon's veto (Pub. L. 93-148). It states that the President may send troops into hostilities, or imminent hostilities, only when Congress has declared war, given specific authorization, or in the event of attack upon the U.S. or its forces. The President must consult Congress beforehand or report to Congress within 48 hours of his decision. This notification starts a 60-day timetable after which the troops must be withdrawn or Congress must either provide authorization for the troops or extend the 60-day limit.

Presidents of both parties have acted in ways which effectively nullify the resolution. In situations all over the world, presidents from Ford to Clinton have finessed the War Powers Resolution. When notifying Congress of the use of troops, they have used the terms "consistent with" or "taking note of" rather than "in compliance with" the resolution (Ford). This has been to avoid language which could have been understood to accept the constitutionality of the resolution (Eastland: 23). Even members of Congress recognize the resolution's shortcomings. Referring to

the resolution's 60-day timetable for withdrawing troops from hostile action, Senator Sam Nunn said, "It's never going to work. It's never worked in the past; it's never going to work. That automatic trigger makes any president reluctant to acknowledge that hostilities are imminent" (Doherty c: 323).

The nebulous nature of the resolution can be seen in the decisions, or more precisely the non-decisions, handed down by the judicial branch in cases dealing with war powers, such as Lowry v. Reagan (676 F. Supp. 333 (D.D.C.) 1987). The President was challenged by some members of Congress in response to the reflagging of Kuwaiti tankers in 1987. A federal district court dismissed the case, stating that a decision by the judicial branch would have risked the problem of numerous positions taken by various branches of government (Glennon: 93). Likewise, on three other occasions during the Reagan administration (El Salvador, Nicaragua, and Grenada) when members of Congress filed suit to have military actions ruled unconstitutional and illegal, the federal courts said Congress itself must challenge the President directly, not use the courts to do so (Biskupic: 36)

Enforcement under Chapter VII

Both the Korean and Persian Gulf conflicts provide important examples of U.S. military action performed under the auspices or with the approval of the UN. Korea was the first major military emergency of the Cold War. As such, both President Truman and Congress felt strong, decisive measures had to be taken against communist aggression and to uphold the fledgling UN.

At the outset of the invasion of South Korea by North Korea, the Security Council, on 25 June 1950, declared that there was a breach of the peace. The Council called for hostilities to cease and for the North Korean troops to withdraw. Two days later it adopted a second resolution which recommended "that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area" (UNSC Res 83, 1950). Without citing Chapter VII explicitly, these resolutions were adopted using the language of Chapter VII, Article 39, of the UN Charter. This article permits the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression. It allows the

Council to make recommendations or decide what measures should be taken to maintain or restore the peace.

Truman had already ordered U.S. air and sea forces to support South Korea on 26 June (Fisher: 33). However, he used the UN Security Council resolutions as justification for the action. Truman stated:

The Security Council called upon all members of the United Nations to render every assistance to the United Nations in the execution of this resolution. In these circumstances I have ordered United States air and sea forces to give the [South] Korean Government troops cover and support. (Truman: 492).

Because of the emergency situation, neither the UN nor Congress objected. Although Truman met with congressional leaders on June 27 and informed them of what was happening, he never asked for their authorization. Congress played no role in this action. The only immediate response it took was to extend the draft. In fact, Senate Majority Leader Scott Lucas advised Truman not to seek a congressional resolution supporting his deployment of troops to Korea. Lucas thought if the President were to go to Congress it might have sounded as if he were asking for a declaration of war (Stromseth: 632). President Truman presented a message to a joint session of Congress on 19 July, but never asked for legislative action.

There was very little objection in Congress to Truman's actions. Most members articulated support for this decision, believing Korea was to be a police action rather than a war. That Congress agreed with the President's actions, recognized it was an emergency situation, and sought to stand firm with the President as U.S. troops were sent into battle, all help explain why they took no actions.

A more recent example of U.S. troops participating in a UN-authorized military action is the Gulf War. Unlike the Korean conflict, Congress exercised, at least nominally, some of its war powers. Shortly after the 2 August 1990 Iraqi invasion of Kuwait, the Security Council passed resolutions condemning the attack, demanded withdrawal of Iraqi forces from Kuwait, and imposed economic sanctions on Iraq (UNSC Res 661, 662, 1990). President Bush, on 8 August, announced he was initiating Operation DESERT SHIELD. U.S. troops were sent to Saudi Arabia and the Persian Gulf to stop any further advance of Iraqi troops. The following day, the President reported this deployment to Congress, "consistent with" the War

Powers Resolution, and stated that he did not believe hostilities were imminent (Bush a; CR 1 Oct 90, H8441; 2 Oct 90, S14333). Both houses of Congress passed resolutions which commended President Bush's leadership and supported the "defensive" deployment of troops to the Gulf region, but did not authorize the President to start a war.

Like President Truman during the Korean conflict, President Bush used the UN to justify, or at least rationalize, the troop deployment. He declared:

The United Nations has provided enormous leadership to the whole world community in pursuing this objective and voting the sanctions necessary to carrying it out. And let's be clear, as the deployment of the force of the many nations shows and as the votes in the United Nations show, this is not a matter between Iraq and the United States of America. It is between Iraq and the entire world community (Bush h: 1281)

Congress was careful during the period before the Gulf War not to legislate away its war powers. Yet neither did it aggressively pursue them. The attitude of Congress was to support the initial deployment of troops, yet be clear about the bounds of its support. Senator Daniel Patrick Moynihan stated, "The resolution does not give the President a blank check" (CR 28 Sep 90, S14190). Congress was wary of the President taking the resolution and using it as an authorization to go to war.

On 8 November 1990, President Bush announced that he was sending an additional 150,000 troops to the Gulf to provide an offensive capability (Bush i). Again he used the UN to justify the action. In a speech from the White House, he said:

We are not alone in these goals and objectives. The United Nations, invigorated with a new sense of purpose, is in full agreement . . . Yesterday's UN Security Council resolution [authorizing the use of force] was historic. Once again, the Security Council has enhanced the legitimate peacekeeping functions of the United Nations (Bush g: 1948).

This raised congressional concerns over the possible usurpation of its war powers. Many leading Democrats, including Senate Majority Leader George Mitchell and Senator Sam Nunn, warned the President not to start