From: Wei Dai (weidai@weidai.com)
Date: Wed Mar 19 2003 - 10:25:16 MST
On Thu, Mar 20, 2003 at 12:36:13AM +1100, Brett Paatsch wrote:
> The UN Charter is the international agreement that is at issue.
> Whether is has *actually* been breached I must confess I am
> not as certain as I was. I am still checking out the arguments
> that I only recently got access to from the governments of the
> UK and Australia and so are a bunch of other folk. I do *want*
> to get to the bottom of it though, it is annoying to me that there
> is debate about the meaning of a written contract even now.
> The whole legal uncertainty thing wreaks of bad faith and bad
> judgement and possibly both.
Have you considered the possibility that there is no object answer to this
question? Ambiguity is a normal part of law. That's why we have judges who
are invested with authority to interpret law and contracts. In the case of
international law there are no judges that are universally accepted so
it's up to each country to interpret for themselves and to try to persuade
other countries of their preferred interpretations.
> I do think that there *is* an answer to the legal question of
> whether the U.S. (and/or the UK and Australia for that matter)
> will be acting illegally (i.e.. in breach of the UN Charter) when
> they do take military action against Iraq.
Why do you think that? It seems to me that the legal ambiguity in this
case was deliberate. U.S. wouldn't have accepted Resolution 1441 if it
definitively bound it to not use force against Iraq without another
Security Council approval, and France wouldn't have voted for it if it
clearly authorized the use of force.
This all makes sense if you assume that the purpose of France was to
restrain American power as much as possible while not appearing to be too
unreasonable. Injecting as much ambiguity into the situation as possible
was the best it could have done given the accepted facts of Iraq's
continual breach of previous resolutions and the Bush administration's
strong resolve in this matter. It seems to have achieved that goal
(although it apparently overplayed its hand near the end and now
probably appears more unreasonable than it planned).
> (Aside: I think it would have been logically valid, moral,
> honourable, and not illegal for President Bush to have, in very
> particular circumstances, discovered that the US had no further
> obligations under the Charter as the Charter itself had been
> voided by manifest bad faith on the part of another permanent
> security council member. The very lawfulness of the law at the
> security council level arises because of the good faith agreement
> of security council members and so, imo, when the good faith
> is gone so has the obligation to continue to honour obligations
> that were taken on in free exchange for the obligations of others.
>
> President Bush did not in fact take this path however.)
Are you saying that you think France did act in bad faith? Even if that is
the case, it would be very hard to prove to the world. Certainly Dominique
de Villepin seems to be smart enough not to leave any clear evidence of
such bad faith. It would probably cause a diplomatic disaster if the U.S.
were to withdraw from the U.N. charter at this point without having
convinced the world. It will be in a stronger position to do that, or
alternatively to reform the Security Council, after the war with Iraq is
over.
> The current situation can be differentiated from Kosovo in that
> unlike with Kosovo, the Security Council is "seized of the matter"
> and the US has by signing off on 1441 acknowledged that the
> UN Security Council is seized of the matter.
As far as I know this is not a commonly accepted interpretation of the
phrase "seized of the matter". See http://slate.msn.com/id/2079413 for a
full explanation of what the phrase really means. Here's a quote from it:
A *small number* [emphasis mine] of international legal experts also
consider the phrase a linguistic maneuver to head off unilateral action.
The theory goes that the Security Council is actually hinting to various
national governments to hold off on, say, sending tanks across the
Euphrates River, since the dispute is still being adjudicated. If that is
indeed the case, the phrase's power seems somewhat dubious--nations
routinely ignore Security Council pleas to remain idle.
This archive was generated by hypermail 2.1.5 : Wed Mar 19 2003 - 10:35:54 MST