From: Brett Paatsch (bpaatsch@bigpond.net.au)
Date: Sun Aug 31 2003 - 02:05:21 MDT
Jeff Davis writes:
> I wrote:
>
> > One possible work-around that comes to mind is that
> > any act of such nature as to justify military "correction"
> > by the UN would likely also be a charter violation, and
> > as such 'nullify' a state's membership/voting privileges.
>
> To which Brett Paatsch responded:
>
> Not clear what you mean here.
>
> [Me again, to clarify]
>
> As you observed,...
>
> [you] "What made 1441 special was the US a permanent
> member got the UN involved with Iraq and thereby
> waived any right it might have to attack Iraq on exactly the
> same grounds as the UN was considering action against
> Iraq.
>
> ...the US signed on to resolution 1441, then went on
> to attack Iraq unilaterally, and arguably in
> violation--you used the term "breach"--of the charter.
>
>
> Could such a breach be cause to impeach, nullify,
> censure, limit, revoke, place on probation, etc, the
> US or its power within the UN organization, and
> thereby deprive the US of its UNSC veto power?
No. Not there is simply *no* mechanism within the
charter for censoring or expelling a permanent security
council member.
All resolutions moved to such an effect would not pass
that permanent members veto. There is *nothing* more
powerful in the UN Charter than a permanent security
council members veto as such can prevent any security
council resolution. To find more power one has to
step outside the UN process and one can only do that
(in my opinion) by revoking the charter itself (and that
could only be a wholesale not piecemeal revokation).
[The Charter can be found btw at
http://www.un.org/aboutun/charter/index.html ]
There is provision in the charter for expelling member
nations under Article 6 which states:
"A Member of the United Nations which has persistently
violated the Principles contained in the present Charter
may be expelled from the Organisation by the General
Assembly upon recommendation of the Security Council".
So the Security Council would first need to "resolve" to
expell a member before it could recommend the action
to the General Assembly. The veto of a permanent security
council member would prevent any such resolution being
made.
There is no explicit provision within the Charter for
winding it (the Charter) up. I would argue though that on
grounds of logic any agreement made between parties for
a purpose can be dissolved upon manifest evidence of
prior bad faith in honouring the agreement by other parties.
In practice the US has the might to revoke the charter and
their would be no higher court of appeal, but it does not
need to. It has embarked into new territory where it just
disregards its obligations under the charter if it so chooses
and their is not higher mightier power to oppose it (not
within the UN Charter). If the US (or any one country that
happened to be a security council permanent member)
went to far other nations might band together to form a new
force but they'd need to do it outside the UN umbrella.
Needless to say they'd be very careful about doing so.
At the risk of belabouring a point the US is a great country
with a fine history of jurisprudence and fairness but it has
made an error. The citizens of the US in my view (and not
only them the citizens of the UK and Australia as well)
were asleep on matters of international law when our
governments were purporting to act on it.
The reason for labouring this is that we should not fall asleep
again. International law matters. It is damn hard to do much
internationally without it. It must rate very highly in any
triaging exercise that we (educated humans) do. And it is not
necessary for countries to say they don't trust America or the
UK on matters of international law for them not to trust them.
My message is that Americas should be vigilant and look to
their own precious constitution,
http://www.law.cornell.edu/constitution/constitution.overview.html
that they should take seriously their right and opportunity to
vote and to speak their views because if they do not they may
find they do not retain them. More precious than your wage is
your vote and your right to try to persuade others of your views.
The gulf war was a phenomenal display of the power of
governments to control and direct the media to shift and shape
public opinion. In my view no single politician played that game
better than Australia's own PM, John Winston Howard though
he played it from a less important and less powerful position.
Regards,
Brett
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