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CounterPunch
November
16, 2002
Did the UN Security
Council Violate Its Own Rules in Passing the Iraq Resolution?
by GEORGE P. FLETCHER
On November 8, the U.N. Security Council voted
15-0 vote in favor of Resolution 1441, which concerns Iraq. Through
its passage of the Resolution, the Security Council indirectly
supported the U.S.'s threat to go to war against Saddam Hussein.
Some parts of the Resolution are unobjectionable.
But others may violate the U.N. charter, and thus violate international
law. If they do, what are the consequences?
Security Council
Resolutions May Be Binding, But Nevertheless Illegal
It is important, to begin, to separate
the question whether the Resolution is binding from the question
whether it violates international law. The resolutions of the
Security Council are implicitly binding on the member states
of the United Nations--and thus so is Resolution 1441.
But the question remains: Is Resolution
1441 legitimate, and consistent with international law?
To see why the two questions are separate,
consider a hypothetical court injunction against conducting a
parade. The injunction, until and unless it is overrruled or
stayed, is binding on the parade commissioner; he violates it
at his peril. Yet it may also violate the First Amendment--as
a later, higher court may subsequently pronounce.
Similarly, under Article 40 of the Charter,
the Security Council can call on member states to comply with
provisional measures "without prejudice to the rights, claims,
or position of the parties concerned." Put another way,
member states can be forced to comply with even those U.N. decisions
they believe to be illegal under international law--but if they
do comply, they do not give up their right to protest the decision.
Which Parts
of Resolution 1441 Are Legal, and Which May Be Illegal
Part of Resolution 1441 is unobjectionable.
It outlines a timetable for Iraq to comply with previous resolutions
requiring inspections and disclosure of all programs to develop
weapons of mass destruction, and of all long-range instruments
of delivery (such as missiles). The clock starts running November
8. Within 7 days, Iraq must declare whether it will comply the
resolution. Within 30 days, it must make full disclosure of its
weapons supply. Within 45 days, rigorous inspections will start.
That's all fine. But a legal problem
will arise if, for instance, Saddam Hussein makes what appears
to be only partial disclosure of his WMD capability. The Resolution
says that "false statements or omissions" will constitute
a material breach of the Resolution (augmenting the finding that
Iraq is in material breach of prior resolutions), and have "serious
consequences." And everyone understands that the "serious
consequences" would mean the use of military force to restore
"international peace and security."
But who decides whether Iraq is in breach?
And who decides if the use of military force under these circumstances
is legal? There's the rub--and there may be the illegality.
The Import
of the Special Chinese/French/Russian Proviso
Three of the fifteen states voting--China,
France, and Russia--added a special proviso to the Resolution,
stating that they do not understand it to authorize "automaticity
in the use of force." Put another way, they do not believe
the Resolution authorizes the U.S. and the U.K. to make an independent
judgment that Saddam Hussein is in violation, and then use the
Resolution as a warrant for going to war.
What force does this separate proviso
have? The three states who wrote it expressly rely on declarations
made by representatives of the U.S. and U.K. But these declarations
are, if anything, incorporated into the Proviso--not the Resolution--and
the Proviso was only joined by 3 of 15 Security Council members.
Ten other states declined to join. As a result, one might conclude
the Proviso has only the force of a concurring judicial opinion--expressing
the reasoning of the three signatories, but not of anyone else,
necessarily.
Indeed, one might read the other 10 states'
decision not to join the Proviso as meaning that they believe
the Resolution does in fact implicitly authorize "automaticity
in the use of force." That is, we might think that, in the
view of the 10, at least, the United States and its single ally,
the United Kingdom, do indeed have the power, under the Resolution,
to make a unilateral judgment that a material breach has occurred
and impose "serious consequences"--namely, military
force.
The Possible
Illegality of the Resolution If Construed to Authorize the Use
of Force
There are several problems with this.
First, China, France, and Russia, as permanent members of the
Security Council, have veto power over any use of force. They
seem to be using this veto power through the Proviso--which makes
clear that they do not read the Resolution to authorize the use
of force, and are voting for it on that basis. Yet the Resolution,
as read by the other 10 Security Council members, seems to take
away this veto power by delegating to the two remaining permanent
members--the U.S. and the U.K.--the right to decide whether to
use force against Iraq.
One way to resolve this problem might
be to adopt the narrower reading of the Resolution, which the
Proviso offers. Like a concurring judicial opinion that is narrower
than the opinion it augments, and necessary to establish a majority,
the Proviso arguably operates to limit the scope of the Resolution.
If three members do not believe they authorized force, and each
of the three has veto power over such authorization, it is hard
to contend that force has actually been authorized. In short,
the 10 are wrong to view the Resolution as authorizing force.
Second, United Nations Charter Article
51 restricts the use of the force to cases of self-defense and
only in response to an "armed attack." This is one
of the basic principles of the Charter. But as I discussed in
a previous column, it is difficult to contend that a <U.S./U.K>.
invasion of Iraq would fit the bill.
Is a U.N. Resolution
a Legislative Act, A Judicial Act, Or a Mix of the Two?
That leads to an interesting final question:
Is a U.N. Security Council Resolution, or Proviso, like a judicial
opinion in the first place? The Council itself has the qualities
of both a legislative and a judicial body.
Like a judicial body, the Security Council
is governed by a document: the Charter. But in reality, the Charter's
principles are mostly too vague to provide much legal restraint,
so that the Council operates quite freely, like a legislature.
Like a judicial body, it must make findings
of fact, such as the finding that Iraq is in "material breach"
of prior resolutions. Yet it has no trial-like mechanism for
making these findings--all it can do, like a legislature, is
hear submissions from its members.
The United Nations is torn, therefore,
between some tight substantive principles, such as those on the
use of force, and its loose procedural forms. Its principles,
in theory at least, prohibit preventive or "preemptive"
war by one nation against another. But its procedures permit
the Security Council to enact policies like those expressed in
Resolution 1441.
The result is a body of law that--ironically
and disturbingly--is subject to violation by its own organs of
interpretation and application. By comparison, it is as if U.S.
court orders routinely themselves violated the Constitution.
It is no great surprise, then, a particular
Resolution, such as this month's on Iraq, might violate the U.N.
Charter, and yet have been enacted by the Security Council all
the same. It may make one wish that like the U.S. government,
the U.N. had, since its inception, always included a judicial
branch.
George P. Fletcher is Cardozo Professor of Jurisprudence at the
Columbia Law School and the author, most recently, of Romantics
at War: Glory and Guilt in the Age of Terrorism. The
article originally appeared on FindLaw
Writ.
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