From: Brett Paatsch (paatschb@ocean.com.au)
Date: Wed Mar 19 2003 - 18:07:46 MST
Wei Dai writes:
> 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.
Yes I've considered it but I don't accept it. Ambiguity can arise in law
but so too can extraordinary clarity. Another UN Resolution would
have resolved any ambiguity over, for instance, whether the "final
opportunity" which the Security Council afforded Iraq had passed.
>
> > 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?
Because I think that the purpose of the UN Charter is clear enough
to give guidance as to what should be done in the event of
uncertainties and also who should get to make the decision. And
because I think that in the end each of the permanent security
council members (at least) retain the sovereign right (not to breach
the Charter) but to void it.
> 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.
The US under the Bush administration might have made a mistake
but they also may have expected to have made a better case
between November and now and to have had a UN security
council (or at least nine of the members and no vetos from
the permanents) behind them by now. They might have expected
Saddam to have been caught in clear breach of 1441 that was
recognized by the permanent security council members.
>
> 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.
I don't agree. President Bush is the President of the United States
and head of its armed forced. I don't think this all can be
understood unless we recognized the power that is in the US
Presidency and that President Bush has, because of that power,
since resolution 1441 was passed had the ability to take initiatives
and put propositions that other heads of state would have had to
respond to. If we want to make sense of all this I think we do
need to acknowledge that President Chirac could not dictate terms
to President Bush. But President Bush could put any proposition
he wanted to the President Chirac. Even now, President Bush
has the power to pick up a telephone and get any of the leaders
of the permanent security council members on the phone. He has
the power to call for a new security council resolution and to
craft it. He has the power to halt, for a time of his choosing, any
decision to send in the military.
Lives and property are not lost in military actions merely because
the commanders in chief are acting in bad faith. Poor judgements,
failures in critical thinking, are enough to add to the collateral
damage and to the loss of lives on both sides.
> 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).
President Bush is still the President of the USA.
>
> > (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?
No. I am saying that if "the world" has doubts about whether
either President Bush or President Chirac have been acting in
good faith then those doubts remain in large part because
President Bush has not used his power to further remove
them.
>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.
Dominique de Villepin is not the head of state of the
permanent security council member that is France.
> 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.
At this point, President Bush is still controlling the clock. He is
still both the President of the United States and the commander
in chief of the armed forces.
> 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:
The Security Council was considering the matter in November.
President Bush decided not to go back to it for a further resolution.
>
> A *small number* [emphasis mine] of international legal experts
> also consider the phrase a linguistic manoeuvre 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.
"Pleas?". On matters of maintaining international peace and security
the Security Councils authority is supreme. There are *resolutions*
that are binding on all Members that ratified the Charter (and I would
add and who have not voided it).
Article 24 states. "In order to ensure prompt and effective action by
the United Nations, its Members confer on the Security Council
primary responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.
Regards,
Brett Paatsch
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