United Nations are “To maintain international peace and securit}’,rnand to that end: to take effective collective measures for thernprevention and removal of threats to the peace, and for the suppressionrnof acts of aggression or other breaches of the peace.”rnBut Article II, Section 4, states, “All members shall refrain inrntheir international relations from the threat or use of forcernagainst the territorial integrity’ or political independence of anystate,”rnand Article II, Section 7, provides that “Nothing containedrnin the present Charter shall authorize the United Nationsrnto intervene in matters which are essentially within the domesticrnjurisdiction of any state.” Even so, that same Article II,rnSection 7, states that “this principle [of non-intervention intornmatters of domestic jurisdiction] shall not prejudice the applicationrnof enforcement measures under Chapter VII.”rnChapter VII, Article ^9, states that the Security Councilrn”shall determine the existence of any threat to the peace, breachrnof the peace, or act of aggression and shall decide what measuresrnshall be taken in accordance with Articles 41 and 42, tornmaintain or restore international peace and security.” Articlern41 covers matters not involving use of armed force, but Articlern42 states:rnShould the Security Council consider that measures providedrnfor in Article 41 would be inadequate or havernproved to be inadequate it may take such action by air,rnsea, or land forces as may be necessary to maintain or restorerninternational peace and security. Such action ma’rninclude demonstrations, blockade, and other operationsrnby air, sea, or land forces of Members of the United Nations.rnChapter VIII provides for enforcement actions to be taken byrn”regional arrangements or agencies” such as NATO, but Articlern53, in pertinent part, explicitiy indicates that “no enforcementrnaction shall be taken under regional arrangements or by regionalrnagencies without the authorization of the Security Council.”rnThere is some obscurity here, and some difficulty caused byrnthe fact that the Charter seeks to secure both the protection ofrn”fundamental human rights” and the “equal rights” of “nationsrnlarge and small.” The Charter clearly undertakes to protect thernterritorial integrity and the sovereignty of individual nations,rnand it seems to say that it is improper for the United Nations orrnfor NATO to interfere in a nation’s domestic affairs unless thernSecurity Council decides that what is going on is a threat to “internationalrnpeace and security” and the Security Council expresslyrnauthorizes intervention. There have been some officialrnexpressions of concern by the United Nations and its agenciesrnabout what is going on in the Balkans, but there has been no SecurityrnCouncil authorization for U.N. or NATO intervention inrnKosovo.rnWholly outside the U.N. Charter, however, there hasrnbeen developing for many years a series of internationalrnlaw doctrines which do authorize interference by one state inrnanother’s affairs. These have included military actions to protectrnone’s own citizens who reside within another nation’s borders,rnand, before and after the establishment of the U.N. Charterrnwith its stated purpose of guaranteeing “fundamentalrnhuman rights,” there have been several armed interventions byrnnations, purportedly to protect the rights of minorities in particularrnor human rights in general, whether or not the individualsrnto be protected were citizens of the intervening irations. A thirdrntype of intervention has occurred, usually under U.N. auspices,rnin the cases of certain “failed states” deemed incapable of fulfillingrntheir responsibility of protecting human rights, and therernis even some scholarly and U.N. support for a fourth type of inter’rnention to prevent human-rights violations that have not yetrnoccurred. For these theorists, of course, national sovereigntyrncounts for very little, if anvihing.rnThe “Restatement of Foreign Relations Law” sponsored byrnthe American Law Institute—America’s most prestigious organizationrnof judges, lawyers, and legal academics—sums all thisrnup:rnWhether a state may intervene with military force in thernterritory of another state without its consent, not to rescuernthe ictims but to prevent or terminate human rights violations,rnis not agreed or authoritatively determined. Suchrnintervention might be acceptable if taken pursuant to resolutionrnof a United Nations body or of a regional organizationrnsuch as the Organization of American States.rnThe best that can be said is that there is no clear justificationrnin international law for what we are doing in the Balkans; morernlikely, we are in violation of the U.N. Charter. Even so, there isrndomestic precedent, of a sort, for the legal arguments that wernare making to support our intervention in the Balkans. We arernwitnessing the migration of liberal constitutional law—the theoryrnof a living Constitution —into international law.rnAs I have written in these pages before, the dominant jurisprudencernin the American legal academy and in the nation’srncourts today is “legal realism” —the notion that judges canrnmake the law mean pretty much anything they want. Beginningrnwith Franklin Delano Roosevelt and his academic advisors,rnthe Constitution’s Interstate Commerce Clause has beenrnread broadly enough to allow the federal government to intruderninto virtually any matter of state law, on the theory that whatrnhappened inside the states would eventually affect other statesrnand the nation at large. The Clinton administration has usedrnthis argument to support initiatives as diverse as the FederalrnCun Free School Zones Act, which forbade firearms in or nearrnschools, and the Violence .^gainst Women Act, which sought tornexpand the intervention of federal authorities into state prosecutionrnof crime. The Clinton administration’s argument thatrnevents in Serbia could affect other NATO countries and thusrnjustify the offensive actions of this defensive organization are cutrnfrom the same cloth.rnNATO’s justification for bypassing an express SecurityrnCouncil authorization for its Belgrade bombing—that the SecurityrnCouncil’s earlier expression of concern implicitly authorizesrnarmed intervention —belies the real difficulty: Russia orrnChina would veto any such resolution. NATO’s decision to gornahead without authorization is reminiscent of the Clinton administration’srntactics regarding Bill Lan Lee, “acting” head ofrnthe Justice Department’s Civil Rights Division. Mr. Lee’s positionrnis supposed to be subject to Senate confirmation, but sincernhis nomination has failed to secure the needed Senate approval,rnthe President has repeatedly violated the spirit, if not the letter,rnof the laws regarding temporary appointments and periodicallyrnreappointed Mr. Lee “temporarily” to his position, thus mockingrnthe Constitution’s structure of checks and balances. Mr.rnLee has used his division in a manner which seems to ignorernSupreme Court rulings on affirmative action. Since the Clintonrnadministration disagrees with those rulings, however, thernJULY 1999/17rnrnrn