The UN Charter is certainly a “treaty” within the Constitution’s meaning. But here is the UN Charter: http://www.un.org/aboutun/charter/. What provision would the United States supposedly be violating by attacking Iraq? The Charter is, unsurprisingly, silent on this particular conflict.
The Security Council will not pass any resolution that prohibits the use of force in Iraq, because the United States will veto it. Arguably, the existing resolutions already authorize the use of force. But even if they don’t, the Security Council has never adopted a resolution against the use of force here, especially after authorizing the use of force in the Gulf War. At best, the United States has presented the relevant information to the Security Council, and the Council has reached no resolution. The United Nations is effectively silent on this dispute. There is no positive law coming out of the United Nations that the United States will be violating if it attacks Iraq.
I oppose a war against Iraq for reasons of policy and precedent. But the argument that the United States will somehow be violating the UN Charter by attacking is a red herring.
**
Perhaps so. But that’s not the issue. The U.S. doesn’t want to surrender authority to the UN, it wants the UN to accept responsibility for the authority it’s already supposed to have.
The world is currently deriding the U.S. as a unilateralist cowboy. The American perspective is somewhat different, and with some justification. “What in heaven’s name is wrong with you people? Look, here’s a problem. Everybody agrees it’s a problem. So get off the fence and do something about it!” The U.S., for example, mightily resisted getting sucked into the Balkans. They would have loved nothing better than for the U.N. to do what was necessary to sort it out. The U.N. utterly failed to do so and has admitted as much, particularly in the horrendous case of Srebrenica.
Time and time again, it is the U.S. that has forced the U.N. to get off its duff and actually do something. Time and time again, it is the U.S. that inevitably is forced to actually do the lion’s share of the work once the U.N. does get off its duff. This problem partially underlies the U.S. resistance to a war crimes tribunal. The U.S. believes, that the rules might be somewhat different if every signatory to the treaty genuinely believed they might someday be called to account under it.
“I can call spirits from the vasty deep!” “So can I. So can any man. But will they come for you when you do call for them?” The U.N. can issue lofty denunciation after lofty denunciation from its high moral ground. But if the U.N. is never willing back up what it says, with steel, if need be, they’re a waste of good New York real estate. The spirits only come when you call if they know you’re willing to get right down in the vasty deep and haul their asses out if they don’t.
The general rule, brian, is that using armed force is illegal except when acting in self-defense. This is a long accepted principle of international law and is reflected throughout the UN Charter. For example, Article 2(4) states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Chapter VII allows the Security Council to authorize the use of force when necessary to maintain peace and security.
I am not arguing that the United States attacking Iraq is necessarily consistent with “international law” on general principles. I am saying only that the United States attacking Iraq does not explicitly violate the UN Charter.
The article that you quote, 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. But in any case, if the Security Council is paralyzed, then Truth Seeker’s point makes a lot of sense.
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 now 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.
FWIW, I agree with brianmelendez. There will be no resolution forbidding military action for two reasons. First, the UN has already authorized military action. Second, the US would veto any such proposal.
The US does not require any additional authority to take military action in this matter.
The preamble to Security Counsel Resolution 1441 specifically references resolution 678.
“Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area,”
Therefore, I don’t think that violation of international law would not be a legitimate ground for the opposition of military force.
As for the OP, I don’t think anything would change in the UN. It is an organization based on wind, not action, unless prodded to action by the US or GB. Technically, all resolutions were complied with, but let’s face it, how seriously can you take an organization that can’t or won’t enforce it’s own resolutions. Bush made that point in his speech before the UN in September.
I don’t think military action would violate Article VI of the US Consitution, even if military action were in direct contravention of the UN. Congress has already given the President its approval for any necessary action to be taken, and that action supercedes any UN mandate.
The treaty commitments of the United States do not diminish Congress’ constitutional powers. ‘‘Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.’’ Head Money Cases, 112 U.S. 580, 598-599 (1884). ‘‘Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.’’ La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899).
The votes don’t even have to be in favor. All the U.S. needs is abstentions. Didn’t China and Russia abstain from the first U.N. resolution authorizing the Gulf War?
It certainly looks like this is the U.S. stance on things.
Personally I feel kinda screwed over.
For decades, after WWII, the US has been high and moral on Europe.
Bad, naughty European colonists, give them their freedom.
You don’t need big armies with big fleets, we have NATO, we will take care of that.
You don’t need strategic basis or control of resources, we must have free trade and the UN will resolve international issues.
Then, one day, we wake up and the US has all the strategic bases, the biggest fleet in the world, wipes it’s ass with international treaties and attacks countries willy nilly.
Suddenly the name of the game is ’ Anyone can do as he wants, provided he has the means.’
Oh, you haven’t got the means? Well isn’t that too bad for you, hehe.’
I think it will end up ripping the last dangling tooth from the UN, and reduce it to the equivalent of the flaccid League of Nations it originally replaced.
However, I don’t think this will happen. I think (fear) that at the eleventh hour, Germany - and more importantly France, as it wields the veto - will cave.
France (gov’t) is loving all the attention it is getting, but does not want to be left standing at the station. That’s what I meant by “diplomatic games” in my above post. All one needs to know is that it starts getting hot in the desert in April.
Brainmelendez, I won’t claim that I was the best student in international public law but:
In a treaty or in a code all articles are imperative. I didn’t find anything in the chart that says that article 2(4) is a guideline.
Another important thing, the worst mistake you can do is focusing on just one article, a treaty is an organic group of norms the only possible interpretation is to interprete the whole. That said, you are correct, article 1 says exactly what you say BUT according to charter it is the security council (and in some cases of exception the general assembly) which says what are the threats to peace. That means that U.S.A can’t by itself (without violating the charter) attack Irak. It needs an authorazation written by the security council (or in cases of exeption the general assembly).
In fact if the U.S.A attacks Irak without it, that country would be in violation on the charter and the security council (without U.S.A participation) can take the proper measures. Of course I am dreaming at this time of my exposition. The rest of the world would prabably do nothing right them and would start opening “Manhattan Project” franchises all around the planet
The US can simply invoke right to self-defense clause and attack Iraq. Whether that excuse is viable or not is irrelevant as the US can veto any meaningful act of censure against itself. In practical terms, no permanent member of the Security Council is really restricted by the UN charter.
I don’t think disarmament is an issue after UNSCR 1441. Putting that aside, I don’t see how your interpretation of UNSCR 660 leads to your conclusion. Assuming your interpretation of the situation is correct (and you may be, there is certainly a heated debate going on right now about that very topic), that still would not prohibit military action in its entirety.
UNSCR 678 and 687 require Iraq to take steps towards disarmament to restore international peace and security. Iraq has not done so. UNSCR 1441 follows the US position that Iraq must disarm. It promises “serious consequences” if it continues its failure to comply. 678 and 687 are all that the US needs to authorize a military action.
Note also, that while you made specific reference to UNSCR 660, UNSCR 678 authorized the use of "all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area." Since the failure of Iraq to disarm has been acknowledged as a breach of international peace and security, the US is authorized to take action to disarm Iraq. While, I agree that 1441 does not provide regime change as an objective, President Bush stated that if Saddam Hussein were to meet all the conditions of the United Nations, “that in itself will signal the regime has changed.” link
The US has also steadfastly maintained that it is authorized to attack Iraq in self defense, a right reserved under Article 51 of the UN Charter. That is a whole different debate for another day, and whether a pre-emptive attack is authorized is very much a matter of debate.
First of all, I don’t expect the US to seek a further UNSC resolution, as we already have what we need to invade Iraq, and holding another vote will just slow things down - we’re already on a tight deadline, with the hot season in Iraq fast approaching. If, for some reason (likely just to raise domestic support), we do decide to seek a vote, and France vetoes, we would go it alone. In such a case, the UN would be rendered effectively irrelevant, and France would be regarded with much disdain by the US government. In the event of a vote, I would expect France to support the resolution, and China to abstain. The US, Russia, and the UK would vote yes, of course.
France, in particular, can’t afford to be sidelined by the US like this, as it would look pretty bad. France seeks to establish a united Europe, with France (and - to lesser extent - Germany) as the dominant entities, which is why it’s currently standing its ground against the US. Standing up against the Scourge of Americanism makes it look powerful, and rallies support. However, standing up to the US and having the US effectively laugh at it as it shoves it aside is certainly not in their best interests. For this reason, in the event of a new SC vote, I expect France to find itself suddenly persuaded by new evidence of WMDs, and have an unexpected change of heart. This way, it can save face, and be remembered as the nation that had the courage to stand up to the world’s sole superpower, while maintaining its facade as the moral center of the EU. If the UN toppled, it would, to some extent, take France with it. France won’t let that happen.
Jeff
