This maybe is better suited to be a GQ, but perhaps the meanings of treaties can be debated, so I put it here.
Has the US ever signed any treaty that the UN could argue is being violated by going to war with Iraq without UN approval?
Not directly answering, but the essential argument is that the US does have approval, dating back to the original resolutions.
The UK Attorney General wrote up the legal reasoning: link.
The US, by joining the UN, has signed up to its charter . Article 2 no. 4 forbids the “threat or use of force” against other countries. The exceptions to this are measures authorized by the Security Council (Article 42) and individual or collective self-defence “if an armed attack occurs” (Article 51).
I think it is pretty hard to argue that the United States would not be violating the spirit, if not the letter, of Chapter 7 of the UN Charter by attacking Iraq without explicit authorization. The Charter, which was approved by the Senate and entered into force in 1945, generally hold that force may only be used in defense against an armed attack or if authorized by the Security Council.
I find arguments that Resolution 678, which authorized states to eject Iraq from Kuwait beginning on 1/15/91, is still in full effect and also authorizes countries to eject Saddam from power, are, in the end, quite strained.
This is a very nice note from Joshua Marshall explaining why 1441 doesn’t provide authority for the current war.
http://talkingpointsmemo.com/march0303.html#031803211am
Here is an interesting bit:
"Here’s what America’s UN Representative John Negroponte said at the UN on the day the resolution passed …
*There’s no ‘automaticity’ and this is a two-stage process, and in that regard we have met the principal concerns that have been expressed for the resolution. Whatever violation there is, or is judged to exist, will be dealt with in the council, and the council will have an opportunity to consider the matter before any other action is taken. *
What he was saying there was that 1441 was not self-enforcing. Its language and what counted as an infraction was to be decided by the Security Council. This was the price we paid for getting for getting the unanimous vote."
Good lord. No wonder they tried so hard for the second resolution.
The Supreme Court would use the quote above as evidence of what the legislature had in mind in its unclear language.
Well, if that is so, then I imagine that the Soviets were “guilty” of the same thing in Afghanistan, and we can all see what the UN did about that.
The United States attacking Iraq does not explicitly violate the UN Charter.
The article that tschild quotes, article 2(4), is a “principle”–a guideline for interpreting the later provisions that spell out the Member States’ rights and the United Nations’ procedures, but not itself the source of a binding duty. But even if you read article 2(4) as imposing a literal and binding obligation that the United States has assumed, it is not clear that the United States would be violating article 2(4) by attacking Iraq. The article limits its prohibition to “the threat or use of force . . . inconsistent with the Purposes of the United Nations.” But one “purpose”–in fact, the primary “purpose”–defined in article 1(1) is “the prevention and removal of threats to the peace, and . . . the suppression of acts of aggression or other breaches of the peace.” The United States can argue that attacking Iraq is consistent with that “purpose,” and therefore not inconsistent with article 2(4).
Chapter VI (pacific settlement of disputes) does impose duties upon the Member States, but the United States has complied with those duties. For example: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” (art. 33(1)). “Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council” (art. 37(1)). The United States has jumped through those hoops. The ball is in the Security Council’s court, and chapter VII (action with respect to threats to the peace, breaches of the peace, and acts of aggression) spells out numerous options. But if the Security Council does not act, then the last article of chapter VII–article 51–provides for the Member State’s right of self-defense. One can argue that article 51 does not apply except “if an armed attack occurs against a Member of the United Nations” and, until an armed attack occurs, a Member State cannot defend itself. If there is a link between Iraq and al Qaeda, then an “armed attack” has already occurred.
By ratifying the UN Charter, the United States did not subject its right of defending itself to getting permission from the United Nations. The United States has lived up to its duties and has followed the processes for pacific settlement under the UN Charter. The Security Council can act, or not, but unless it affirmatively prohibits an attack against Iraq then the United States will not be violating the Charter if it attacks.
hermann: There are also the Soviet interventions in Czechoslovakia and Hungary to add to the list.
OP: Good question. Follow-up: According to the Article 6 of the Constitution, “…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;”
Q1: Now I seriously doubt whether the Supremes will touch this one with a ten foot pole. My question is, “What distinguishes, ‘treaties that the Supreme Court are willing to enforce’ from the other kind?”
Good point Cyberpundit: Let me summarize. The language of 1441 is somewhat ambiguous. So the issue turns on the authors’ intent. Europe clearly intended that the Security Council would determine whether or not 1441 was being broken by Saddam. The US’s representative agreed with this interpretation, last Fall.
But there’s another argument. The invasion is predicated on 1441 as well as 678 and 687. Key quote from BBC:
"2. In resolution 687, which set out the cease fire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area.
Resolution 687 suspended but did not terminate the authority to use force under resolution 678.
- A material breach of resolution 687 revives the authority to use force under resolution 678. "
So the legal justification turns on enforcing the 1991 cease fire agreements.
I might observe that the Kosovo attack by the US was sponsored by NATO and not the UN. So there may be additional wiggle room in Article 2, no. 4 that might be considered. Ah, I see on preview brianmelendez has provided that.
Disclaimer: IMHO, the balance of the evidence suggests that the US should invade Iraq, on humanitarian grounds. Doing so without international assent, however, is inadvisable for a variety of reasons which I won’t go into here.
And it is 687 that Bush cites for “legal” authority, not 1441.
Dogface, cite?
Reliance on 687 for legal authority is even riskier than 1441.
The only obligation that Iraq undertook in 687 is to accept the ceasefire. The resolution addressed other obligations of Iraq related to “international peace and security”, but those were not ceasefire conditions. Authorization for member states to use force explicitly ended with 687. The Coucil retained the issue to address the “international peace and security” obligations of Iraq.
If you disagree with this interpretation, first please establish that “it is 687 that Bush cites for “legal” authority, not 1441”.
While relying on 1441 is flimsy, relying on 687 is even moreso.
I think that’s a rather misleading quotation. You seem to be saying that a treaty takes precedence over everything else, which is absolutely not what the Constitution says.
One can argue? HUH? “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
One can state as a fact, not an argument, that that is what the UN Charter requires. As far a link between al Qaeda and Iraq in planning or carrying out 9-11, that really hasn’t been alleged, has it?
“The strongest link of – of Saddam Hussein to al Qaeda – we’ve never said that he somehow masterminded 9/11 or was even involved in 9/11.” - Condi Rice, Face the Nation, 3/9/03
Getting back to the OP, domestic law is generally given an legal cushion to make it not conflict with international law. The Charming Betsy principle holds that US law, to the extent practicable, shall be read to be in accordance with international law.
See bullet 3 at…
http://www.law.washington.edu/Bodansky/Courses/A557/Exams/SampleA.html
If there is a conflict, then depending on the cirucmstances, US law either trumps international law or the last-in-time principle applies, so that whatever was enacted/ratified most recently is read to be applicable.
Basically, the US Government can, under some circumstances, act in violation of a treaty but not act illegally. Not that that makes it right.
AZCowboy: The justifications for war, as laid out by the Brits, are in my quote above. They conflict with your take on matters: you say 687 ended authorization, while the Brits say that 687 “suspended but did not terminate” authorization.
Furthermore, the Brits claim that Iraq’s failure to carry out its obligations under 687 revives authority to use force under 678.
You have not disproved the British claim (nor have you claimed to). I have not demonstrated the British claim (i.e. I haven’t pulled out the original UN text).
I will assert that the BBC article has the aura of plausibility around it, pending some Doper’s legal efforts.
Ryan Good point. I didn’t intend that implication; I agree that my sentence was misleading. Let me try again:
"Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. "
I still would like to know the answer to my question, however. (i.e. “What distinguishes, ‘treaties that the Supreme Court are willing to enforce’ from the other kind?”)
flowbark, didn’t mean to ignore your assertion, please take no offense.
Yeah, I’m familiar with the Brits opinion, and I believe it to be problematic, in a few different areas.
But let’s start with just one. The second paragraph of item 2 indicates, “Resolution 687 suspended but did not terminate the authority to use force under resolution 678.” And that just doesn’t hold as the definition of “cease-fire”, which is literally a cessation of hostilities. It is not an armistice, which is a suspension of hostilities. If the other party violates an armistice, then you may take both offensive and defensive action (the deal is off, so to speak). Under a cease-fire, if the other side starts hostilities, you may defend yourself, but you may not resume offensive hostilities under international law.
So the argument that 687 suspended force but did not terminate authorization for the use of force is to contradict the established meaning of a formal cease-fire - which is what 687 granted Iraq.
If you’d like to refute that, I will continue with some of the other problems.
No offense taken, AZ. (I just didn’t want to claim that you hadn’t proved thus and so, when I hadn’t proved anything either.)
I’m going to duck this discussion though: it’s over my head. I will, however, provide some links to to resolutions 687 and 678.
687: http://www.fas.org/news/un/iraq/sres/sres0687.htm
Favorite quote: " Conscious of the need to take the following measures acting under Chapter VII of the Charter,
- Affirms all thirteen resolutions noted above [includes 678 -ed], except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire;"
flowbark sez, “Chapter VII? Thirteen resolutions to cross-reference? Definition of formal cease-fire? 34 points below that line? I-eeeeeeeeeee”