So Jimmy1 you are of the opinion that Article 51 is superceded by the historical concept of “do whatever the hell you like”? Why did they bother wasting all that paper&ink? Why did the US sign it?
You raise a good point. The reference adds ambiguity to an ambiguous resolutin (678, I mean).
But I don’t think that there is any constrain from the UNSC listing historical resolutions in the preamble of new resolutions. After all, even 661 – the point of which was to enact economic sanctions due to the occupation of Kuwait – wasn’t really relevant, seeing as how subsequent resolutions (1386? my head gets hazy on all these numbers) estbalished the Oil for Food Program well after 1991.
In my view, the heart of the matter is still that 687 declared a sunset to 660; but your point is interesting nonetheless. The case that 678 was still in force would be bolstered, however, if that clause had appeared in the resolving clauses, rather than the rhetorical preamble.
CarnalK, It should be noted that when other countries all play by the rules Article 51 is convenient to follow. When rogue nations do whatever the hell they want to whomever they want and don`t themselves follow Article 51 then Article 51 has no teeth. Why should the US follow Article 51 when the nation of their aggression has never followed it?
A parrallel can be made to a cop that can`t prevent a criminal from committing felonious acts unless the cop himself commits a felony in order to prevent the criminal act. A judge may find the cop guilty of the felony but the public may see the cop as a hero.
As long as the criminal was subdued the public can usually turn their head as to the “manner” of the subduction.
Jimmy1:
How many of the numerous conflicts you mentioned elicited UN resolutions of condemnation? Would such a condemntation negate the concept of customary practice for those conflicts that were explicitly condemned by the UN?
Obviously, it’s there to establish the background for the present situation; to indicate that the current resolution is predicated on an ongoing situation with respect to Iraq. But why would you only read the preamble, and ignore the NUMBERED POINTS later in the resolution which unambiguously spell out the action to be taken? (hint: the paragraphs that explain UNSC decisions start with the word decides…). I’m noticing a conspicuous absence of any decision to use armed forces against Iraq. You would have us believe that the UNSC intended 1441 to be an authorization to use force, but buried that authorization as a reference to a resolution passed a decade earlier, and just didn’t bother to include any reference to this authorization in the actual body of the resolution.
Earlier I acknowledged that a lawyer could use sophistry to fabricate a specious argument as to the legality of the war, and I think this would qualify as such an argument.
Couldn’t they have just expired on their own? My understanding is that most biological/chemical WMDs have a limited “shelf life,” and even when stored under ideal conditions, will turn inert in a year or two.
Dunno, though my own theory remains that Saddam didn’t want to let the world know that his arsenal was empty. If his unfriendly neighbors knew that his much-vaulted supply of WMDs was gone, that’d give them one less incentive to avoid starting a war.
Sorry, can’t buy into that. The ends do not justify the means. Otherwise you might as well say it’s okay for the US to take over the planet, because there’s an “overall just cause” of world peace at the end.
Interesting. Granted that customary law existed before the Charter, how does your contention square with Article 103 of the Charter, which basically states that the Charter shall prevail over any conflicting obligation under any other international agreement?
It did a bit more than that. It specifically states that countries have an inherent right to self-defense against an armed attack until such time as the UNSC has had a chance to take measures against that attack. A bit pie-in-the-sky, perhaps, but clearly stated.
I really hadn’t thought much about the Afghanistan case, but I don’t think anyone in their right mind would doubt that the United States acted in self-defense against an actual armed attack eminating from that country.
As far as Glennon’s point that the anarchic behavior of states has undermined – basically to the point of collapse – the UNSC’s authority in matters of war, I would say on a practical level, he’s got a point. However, I do not think that that gives the US a free pass on its obligation to carry out the UN Charter, because it is a ratified treaty that is the law of the land. Surely that is a binding obligation that cannot be undone through the common practice of other states, regardless of how impotent the UNSC may be in actual practice.
I guess my point is that the resolutions may not expire as you have suggested? Else why the need to predicate a new resolution with a meaningless outdated old one.
BTW, I didn`t just read the preamble. I quoted it because, as you said, that is the only place it shows up. But why?
rjung, we clearly have difference of opinion on this. The ends do sometimes justify the means. I think each case can be dealt with on its own merit and that a blanket statement should not be made.
As far as what happened to the weapons?, I rather doubt that they just dried up and blew away. But that`s just speculation on my part…
Jim:
While I understand your point, I find your argument incoherent. The US regularly defends its military interventions under the provisions of Article 51; the invasions of Grenada, of Panama, and of Iraq were all defended as legitimate acts of “self-defense” under our government’s broad (and rather unique) interpretation of that article. It is therefore the standard party line of the current administration that the US did not violate the UN Charter when it attacked Iraq – since the invasion was a matter of self-defense, and thereby protected under the provisions of 51. Hence all the hullabaloo regarding “WMDs,” which you may or may not remember. Hence as well the shocked reaction when Perle stated publicly, in complete contradiction the official US stance, that invasion of Iraq was a breach of international law.
You are correct that my complaint about the situation is precisely that the US in this act is no different from the other “128 nations”, including such shining gems of democracy as, well, for example, Iraq under Saddam Hussein, that engage various forms of military adventurism. In fact, you’ve struck the nail on the head. I mean, after all, Gulf War I started precisely because Saddam ignored Article 51 and engaged in the unprovoked use of force in his relations with a neighboring state. This act was such a clear violation of the Charter that all the members of the UNSC were able to agree to authorize force to deal with it. And yet, when we engage in exactly the same sort of activity a decade later, apologists for the US are still trying to find angles or arguments or ways of thinking about it that somehow make it justifiable as far as the US is concerned, even as they condemn precisely the same behavior in our official enemies. Or perhaps you are prepared to argue that Iraq’s invasion of Kuwait was “legal” as well?
In other words, your argument boils down to little more than a simple confirmation that the US is as much a “rogue state” as is, say, North Korea, which is what we on the left have been arguing all along.
The problem is that the US claims to stand for the “rule of law” in international relations, while regularly and gratuitously flaunting those rules whenever they stand in the way of its national interests. Most patriotic Americans believe it is precisely this fact that the US represents the noble ideal of lawfulness – equality under law, freedom, etc. – which makes the US such a great place – one superior to most other nations on the globe. And yet it practice, we see the US is just as power-hungry, ruthless, conniving, manipulative, etc., as, say, China. Maybe more so.
You’re response seems to be that of saying that this way of behaving is really “legal,” since everybody does it. It’s like claiming that since most drivers speed, speeding is therefore legal. That’s clearly absurd. And judging from the history of interstate relations, I’m not sure what we might replace Article 51 with, other than some form of the “law of the jungle,” such as was common prior to the creation of the UN (and still is, truth to tell).
PS: Ravenman, thanks for the interesting insights.
>> The ends do sometimes justify the means.
That is, among other things, a defense of terrorism as a valid tool for achieving ends which a person or group consider important. You are defending the methods used by terrorists.
Well I guess I would say because the other nation posed no real threat and the US holds itself up as a more enlightened nation. There isn’t a compelling reason for the US to “get in on the action” of breaking UN agreements.
A parallel might be a vice cop who starts pimping. 
Good point, but we are dealing with terrorists aren`t we?
– when in Rome, do as the Romans.
Pontification;
Why give lattitude to Iraq? A people that have allowed a ruler to govern their country in such a manner as he had. To be as ruthless as he has been, to murder so many, to torture so many, to develop and maintain WMD and the worlds fourth largest army, to flip off the UN in so many ways. Why should the US be so concerned about courting the rest of the world and kowtowing the UN when a clear and present danger existed in Iraq? Forget WMDs, if Saddam had somehow been able to develop nukes and had them in position to use, he could have essentially terrorized the rest of the world as long as he felt like it. Once the man had such weapons, an attack on Iraq would have been out of the question. We would have had to let the bully be.
Even on a lower level of allowing him to exist knowing he had the power to develop WMDs, it would only be a matter of time before one got into the center of some foreign city and was detonated.
Yes, we could have waited for every country on the planet to give the OK. We could have waited until every person on the planet agreed that it was “legal”. We could have waited until every terrorist was armed with dirty nukes or chemical weapons. We could have waited until we were attacked again. We could wait forever. There is absolutely no doubt* in my mind that things would have only gotten worse, harder to deal with, and bloodier then all hell if we would have waited. The war effort has gone way better than anyone could have anticipated, and it pisses off the left something fierce. Even the Capturing of Saddam pissed off some of the left. Well, thats not even half the country, imagine if we had waited a few years to dispose of Saddam and it would have been a real battle. The entire country would have been pissed off. Ill take upsetting half the country over upsetting the whole thing any day.
Actually, I believe it was Ravenman who suggested that. I may be wrong; I don’t feel like searching the whole thread right now.
Like I said, my reading of it is that the preamble is simply giving the background for the current resolution. It seems rather obvious that 1441 is saying: “Because of X,Y, and Z (preamble), we are now deciding to resume weapons inspections in Iraq.”
You might have a point were it not for the unambiguous fact that the United States tried very hard to get the UN to authorize the use of military force, and was unsuccessful. I don’t see how you can seriously argue that the UN intended an implicit authorization of force, when the same organization explicitly denied such authorization. Seizing on such technicalities is the ethical equivalent of saying: “I had my fingers crossed.”
Blowero, understood.
You’re getting less and less coherent. The problems with this statement are so obvious, I don’t even think I need to say anything.
I’m stopping you right here, because you are conflating two points. This first point is that Saddam was an evil despot. We actually have quite a few evil despots in the world right now, some even worse than Saddam. It is tempting to say “why can’t we just blow 'em all away?”, but there are a lot of really great reasons why we shouldn’t. Just take a moment to imagine a world where any country can, on a whim, declare any other country to be “evil”, and start bombing them; no rule of law, just let anyone decide for himself when to start bombing another country. Now I ask you, do you really want to live in such a world? Before you answer, consider that Osama bin Laden believes that the United States is evil, and in a world with no rule of law, the 9/11 attack would have been justified.
So as tempting as it is to want to rid the world of evil tyrants, doing so without any sort of rules whatsover is too scary a thought to even contemplate.
Now this is an entirely different argument. First of all, nukes are WMDs, and Iraq didn’t have them. So your ruminations that “if Saddam had them…etc.” are meaningless, since he didn’t have them. There is a difference between defending oneself from attack, and attacking only for the purpose of destroying a sovereign government. It’s a very important difference, which is why there is a distinction made between the two in international law.
No it hasn’t. It’s actually not going well at all; our soldiers are getting shot at and killed almost every day. Here’s a clue: the left was pissed off from the moment Bush declared the UN “irrelevant” and launched an illegal and ill-conceived invasion. And the left is pissed off that he is spending billions upon billions of dollars in Iraq when we desperately need the money here at home, while at the same time thumbing his nose at the rest of the world, who quite possibly might have helped with the effort had we gone about things a little differently. Good news is good news; capturing Saddam is a good thing, but it doesn’t undo all the bad things Bush has done.
Strawman.
Without Bush’s “my way or the highway” mentality, we could have had help from the whole world, not just the UK.
Dang, I shoulda quit there.
It`s OK, I just needed to vent…
I`m all better now.
Not at all. However, I am of the opinion that state practice and custom reflects a different interpretation, meaning, and understanding of the word “self-defense” than is attached to it by the International Court of Justice. Considering that a source of international law is derived from consistent state practice and custom, and such action reflects a much broader understanding of the term “self-defense,” then it is quite possible the U.S. did not violate the UN Charter. Admittedly at this point it is a stretch because the ICJ and the UN does not want the meaning of “self-defense” broadened but state practice reflects a different tenor. State practice reflects a different understanding of the meaning of “self-defense,” in Article 51.
Mr. Svinlesha:
If the U.S. is defending their conduct as “self-defense,” then they are no doubt at some point going to make the same arguments I have made.
Then you clearly misundestand how International law is created and did not comprehend my argument at all. My argument is nothing of the sort you allege it to be here and if it is then it is the result of the operation of International law. A source of International law is state custom which is derived from state practice, a point the well versed in International law Ravenman will admit. Since the state practice regarding the term “self-defense” is much different from the meaning the UN and ICJ attach to it, then it is plausibe the U.S. complied with the accepted state practice when it invaded in Iraq and hence, possibly International law. If this state custom or practice is in fact accepted by the ICJ. However, the ICJ is supposed to rely upon state practice and custom in settling disputes and applying international law.
Very good query Ravenman but the obvious rebuttal would be there is no conflict. Rather, Article 51 merely codified the international meaning of “self-defense” as opposed to abrogating it. If this is so, then there is no conflict.
Admittedly so.
Well according to the ICJ and the interpretation of “self-defense” by the UN the United States did not act in “self-defense”. Why? Because they have both interpreted the meaning of “self-defense” in such a narrow way. Since the government of Afghanistan nor its representatives attacked the U.S. on 9/11/01 the United States could not have engaged in the military conflict it did without violating article 51. The attack was not by Afghanistan as it was by Japan in WWII but rather by terrorists living inside of Afghanistan. This is significant because it most likely leads to the conclusion that the U.S. violated article 51 when it invaded Afghanistan. Let me be more specific.
I never had an opportunity to state this completely but my argument rests upon a particular definition of “armed attack” and “self-defense”. The latter is only permissible if the former is present. Hence, no armed attack, then the right of self-defense can hardly be used to justify military action. I have only argued how the United States conduct may constitute as “self-defense” under international law as it existed prior to the UN Charter and presumably codified by the UN Charter. However, the U.S. must also take an expansive interpretation of “armed attack” in order to justify their conduct as “self-defense”. Once again, state custom and practice is in disagreement with the ICJ and the UN as state practice and custom reflects a much broader interpretation of “armed attack,” and U.S. conduct is in harmony with the state custom. However, under the more narrow interpretation by the UN and the ICJ the military involvement in Afghanistan, Kosovo, and a host of other military conflicts were clear violations of a plain reading of Article 51.
In Nicar v. U.S. the court said " While the concept of an armed attack includes the dispatch by one State of armed bands into the territory of another state…the supply of arms and other support to such bands cannot be equated with armed attack…Assistance to rebels in the form of the provision of weapons or logistical or other support does not constitute an armed attack…Active, not passive support, in actual sending of armed bands, groups, irregulars or mercenaries or substantial involvement therein is necessary to meet the armed attack requirement. Based on this reasoning by the ICJ in articulating what constitutes as an “armed attack,” then the attacks on 9/11/03 hardly qualifies as an “armed attack” by Afghanistan and consequently, the United States could not take any military action inside Afghanistan’s borders without their consent, or the approval of the UN Security Council, without violating Article 51 of the UN Charter.
Now the UN General Assembly “strongly condemned the heinous acts of terrorism” but declined to characterize the acts as an “armed attack” under article 51. The Security Council also condemned the attacks in two resolutions that contained preambular language recognizing the inherent right of self-defense. However, the Council stopped short of authorizing the use of force. Harvard Journal of Law and Public Policy, Self-Defense and Incoherence in the UN Charter, page 543.
Now despite this I contend there is a consistent state practice which interprets “armed attack” and “self-defense” differently from that of the ICJ. Mr. Glennon argued the ICJ blatantly ignored state custom and practice in defining “armed attack” and “self-defense” Specifically he says, "*The application of customary international law thus requires at least minimal deference to what states have actually done, as a means of determining precisely what, in the real world, states regard as law. Yet the Court deigned to cite nary any instance in which any state-let alone a ‘very widespread and representative’ group of states (the test it had earlier prescribed for finding custom) had actually adhered to the new limits it announced on defensive rights. It doubtless steered clear of the touchy question of state practice because state practice concerning the use of force demonstrates precisely the opposite of what the Court strained to conclude. So many states have used force with such regularity in so wide a variety of situations that it can no longer be said that any customary norm of state practice constrains the use of force. * So under state practice and custom regarding “armed attack” and “self-defense,” the U.S. has not acted differently in its military engagement in Afghanistan or Iraq and hence, not contrary to state custom. However, under the ICJ’s narrow meaning of “armed attack” and “self-defense” U.S. military engagement in Afghanistan, Iraq, Kosovo, or other areas cannot be justified as legitimate under Article 51.
As Mr. Glennon noted, the Court has reached absurd and unrealistic interpretations of the meaning of “armed attack”. The ICJ interpretation would require bombs to fall first. Hence, the U.S. would have had to wait until Japan dropped its first bomb on Pearl Harbor before an “armed attack” occurred but state custom, particularly during the cold war, reflects a different understanding of “armed attack” and “self-defense”.
I think U.S. military action, statements, and foreign policy make it clear they are interpreting the law differently and according to this interpretation they are not violating the UN Charter or their obligation under it. Especially since their conduct is no different from the well documented state practice and custom regarding the terms “armed attack” and “self-defense” under Article 51. The U.S. would of course argued they have not violated international law because their conduct has been wholly and entirely consistent with state practice and custom.
As the result of policy considerations, I would have to disagree. The United States can hardly be said to adequately defend itself, its citizens, or its interests from attack if they are required to play by the rules of Marquis of Queensberry while others are permitted to disregard them and fight freestyle. The U.S. must keep its gloves on and fight with one arm tied around their back for the sake of formality in adhering to rules while most of the rest of the world, including enemies of the U.S., summarily disregard these rules and fight not only with their gloves off but with knives and guns.
This seems a little peculiar. There are no examples of states solving their problems without invoking “self defense”?
I understand your argument now I believe: The self-defence in Article 51 should reflect the broader historical definition. But: what evidence can be put forth of a new commonly held narrower understanding? -other than the straight act of demanding it by orgs like the ICJ, the UN itself, and various others. That’s an honest question. I think (hope) that world opinion is at odds with historical precedent here and that the former should trump.
As far as the whole fight fair vs fight fire with fire thing goes, I think there is another solution. If the US vigorously backed the UN (financially and politically) it might be given more legitimate routes to flex it’s might against guys breaking the rules.