From: Brett Paatsch (paatschb@ocean.com.au)
Date: Wed Mar 12 2003 - 18:29:21 MST
Some extropes may find this of interest. I've just posted it to the ASIL list so
at least I am likely to get an education. :-)
----- Original Message -----
From: Brett Paatsch
To: soismeme@iname.com
Sent: Thursday, March 13, 2003 12:22 PM
Subject: The Gordian Knot (was Re: Security Council Voting)
That was my reading of it. I think, based on recent comments in newspapers, but am not 100% certain, that Kofi Annan has a similar view of the legalities overall. ie. A new resolution is needed in order to make military action "conform" with the Charter.
I draw the fairly short bow from that (consistent with my own reading) that the US would be in breach of the Charter (in Kofi Annan's view) if it takes military action now that is not in accordance with security council voting procedure.
It seems very clear to me that if Bush decides to pursue not only unauthorised military action (which is one matter), but actually to usurp (breach) the implied agreement in 1441 to have the security council as a whole determine when Iraq's "final opportunity" is over (an entirely more serious matter) then he places the US in 'material' breach of the Charter. To me such an action is only conscionable (by the United States) if he (Bush) asserts beforehand that he is revoking the Charter as the Security Council and the UN are patently not capable (in his, the US view) of maintaining international peace AND security in the face of the new type of security threat. In other words Chirac's view (in Bushes view) would constitute an intractable problem and the failure of the UN in its purpose.
Seems to me the worst possible outcome is if Bush (and thereby the US) decided to breach security council
resolution 1441 (via the "final opportunity" determination being unilaterally usurped after conceding it was
the security councils call - and thereby excluding the application of article 51 on exactly the same matter) and does not, at least be logically, morally, and I think legally, consistent and void the Charter first.
A Charter conspicuously bearing the US signature, when the US as a permanent security council member (unremovable without its assent) is in violation of it, seems to me, to be worse than useless. It is obstructive of a better (an honoured) Charter struck between honest Members acting in good faith. Seems that to persist with the UN, if the US breaches the Charter in this most serious of ways (on a matter of a security council resolution when the security council is currently "seized" of the matter) would be to persist with the highest farce most publicly. So much for justice being seen to be done. What basis could there be for confidence in the US an its word in any international law context.
I confess I read with interest a recent post that cited a possible resolution 337, that from memory, seemed to argue that the General Assembly might be able to overrule the Security Council in some circumstances (and that this had occurred in relation to Panama). I see nothing in the Charter that suggests the Security Council in determining matters of security (once it becomes seized of them -as per Iraq and 1441) is anything less than supreme (so long as it's decisions are in accord with the Chartered voting procedure).
To me it is clear cut the US has now only two moral and legal choices. Abide by the Charter and resolution 1441 (and pursue further action within these constraints) or void the Charter by giving formal notification before otherwise going on actions that would otherwise among to clear premeditated breaches and leave the US in a state of international dishonour
As an aside I think this problem is diplomatically soluble. Bush should challenge Chirac to identify a standard of determining when the Security Council should authorise force (as a general principle and in contradistinction with his ideological and rhetorical statements about War "always, always" being the last resort.) Bush can, in my view, if he is statesman enough, separate Chirac from any high moral ground.
If Chirac, as the head of a permanent security council member nation cannot, even in principle, articulate a standard of proof for any security council military action that is operationalisable, then, quite legitimately, in my view, the UN cannot carry out is mandate and the Charter would need to be voided as there is no procedure for removing a permanent security council member that will not engage with contemporary issues that are international threats to security in an operationalisable way.
To me, Bush can step away from this with honour and with the US having acted legally if he does so challenge Chirac before taking miliary action. And Chirac so challenged by Bush, must, to preserve honour, provide a more practical solution, or be seen to be the reason for the failure of the UN.
I think the Gordian Knot can be untied. If Bush cuts it - he is culpable. If he challenges Chirac publicly and Chirac fails to rise to the occassion - then Chirac would be culpable.
If they both rise to the occasion the UN, the US, and they themselves can still emerge the stronger. This is merely the testing of the UNs capacity to fulfil its Charter. And of the capacity of the leaders of the security council permanent members heads of state. Merely.
Regards,
Brett Paatsch
----- Original Message -----
From: Richard Self
To: ASIL Forum
Sent: Thursday, March 13, 2003 10:33 AM
Subject: Security Council Voting
The American Society of International Law ASILforum Discussion Group .............................................
We have heard a lot about "unreasonable vetoes" of late in respect of the successor resolution to 1441 from certain parties who appear eager to wage war.
However, re-reading Article 27 of the UN Charter, it is apparent that for all resolutions other than "procedural matters"
a.. "Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members;" (I emphasise the possibly key phrase)
This presumably means that neither France nor Russia actually have to exercise their veto to render the successor resolution in-effective for the Bush / Blair purpose of supposedly legalising armed force, they only have to abstain.
Am I reading this correctly or have I missed some nuance?
Richard J Self
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