Attacking Iraq and international law.
International law is an arcane subject for those at all levels of opinion, ranging from the general public to top opinion leaders. For the man or woman on the street, hearing from the mass media that an adversary "has broken international law" is likely to evoke horror. And there is a need for reassurance that "we" are upholding international law and that our country's adversaries are lawbreakers. However, if indeed there is an authoritative judgment to the contrary, as exemplified in the International Court of Justice (ICJ) ruling against the United States in the Nicaragua case in 1986, portions of the public that favored the condemned policy typically react with righteous indignation about the alleged "unfairness" of the decision, while media coverage gives the matter so little salience that the great bulk of even the educated population hardly become, or at least long remain, aware of their country's misdeeds.
If an important policy is obviously in violation of international law, prominent statesmen - here I am thinking of a much-quoted statement by Dean Acheson justifying the clearly illegal blockade ("quarantine") of Cuba in 1962 on the ground that a situation in which our country's "power, position and prestige" are involved cannot be treated as "a legal issue"(1) - typically resort to the argument that their nation's position in the world is far too important to allow legalistic considerations to stand in the way. Such arguments of course are not accepted if one's opponents invoke them, thus making for a constant double standard applied to "us" and to "them" and for an extreme manifestation of arrogance in the hands of those who possess a preponderance of military might. Of course, one cannot expect journalists to be jurists. But the paucity of critical treatment by the "elite press" of questions relating to the legality of Washington's positions and indeed the one-sided effort to legitimize them provide at least one small example of its role in what Edward S. Herman and Noam Chomsky, in elucidating a "propaganda model" of the mass media in the United States, have labeled "manufacturing consent."(2)
MANUFACTURING CONSENT: NEW YORK TIMES LEGAL PRONOUNCEMENTS
Coverage by the New York Times in the early weeks of 1998 provides an example of the way international legal issues are run over roughshod by the reputedly best newspaper in the United States. At the height of the buildup for what then seemed to be an immediately impending attack on Iraq, the New York Times on 4 February began to deal with the legal question. First came an article(3) that garbled the issues to an incredible extent. The article reported that Washington - and here the obfuscation may have been as much that of the anonymous officials being quoted as of the author of the article - was basing its right to carry out the envisaged air attack on the Congressional resolution of January 1991. The article continued with the statement that "international law specialists generally agreed" (citing Lori Fisler Damrosch, professor of international law at Columbia University, in particular) that no new Congressional resolution would be necessary but thought the passage of a new Congressional resolution, which of course was relevant only to domestic constitutional issues, "would strengthen the Administration's hand under international law." Oddly confusing the distinction between American domestic and international law (and thus seeming to say that what Congress had determined about the authority of the president under the United States Constitution was determinative of international law), the same New York Times article then jumped incoherently to the State Department's position that no new Security Council authorization for the use of force was necessary and finally went on again to invoke the 1991 Congressional resolution.
No apology for or retraction of such egregious distortions followed. Aside from a brief letter by Joanne Mariner - published three days later - pointing out that the article "mistakenly conflates two very different issues" and another letter by Michael Ratner and Jules Lobel (published 11 February 1998) noting that provisions of Security Council Resolution 678 (of 29 November 1990) had mistakenly been attributed to the Congressional resolution, readers of the New York Times did not subsequently find any admission that the 4 February article was in any way flawed. Thus only a careful reader who looked very hard and was willing to accept the wisdom provided in letters to the editor, a medium that typically is delegitimated by being associated with those who dissent from the "normal," or "mainline" views, had access to more competent, less biased analysis.
Presumably as a result of embarrassment over the flagrant' incompetence of the 4 February article, the New York Times did go ahead the next day with the publication of an article with a headline containing a pejorative reference to "the likes of Iraq," by Christopher S. Wren,(4) that made another stab at legitimating Washington's position while avoiding the confusion between international and United States constitutional law. Without mentioning the constitutional issue, Wren started out by saying that the Clinton Administration's claim that it is authorized to attack Iraq "is based on . . . Security Council resolutions and statements and on the United Nations Charter itself."(5) Following several quotes from Chapter 7 of the Charter and from Security Council Resolution 678, the article went on to explain that Resolution 687 had "made the cease-fire in the gulf war contingent on Iraq's" cooperation with provisions relating to destruction of weapons and to inspection. Pointing to statements approved by the Security Council in recent months that Iraq had not complied, the author seemed to imply - misleadingly - that that added up to authorizing an armed attack by a particular member of the United Nations. It then went on to refer to statements by "American and other diplomats" invoking provisions relating to "A material breach of a treaty" in the Vienna Convention on the Law of Treaties of 1997, of 1971, hereafter referred to as the 1971 Vienna Convention (which, as will become apparent below, not only is the wrong convention - although this really does not matter, as will become apparent - but, more importantly, constitutes a badly flawed understanding of the same provision both in the more relevant convention and in customary international law, which in fact is applicable).
The only inkling that not everybody was in agreement with the United States position was a statement by the Russian representative at the United Nations, Sergey Lavrov, in the 5 February article. He was quoted as having argued that only another invasion of Kuwait would constitute a material breach of the resolution. (This argument is questionable from a legal point of view; what he should have argued, a point I will develop below, is that the cease-fire remains in effect until the Security Council, not a state or group of states, abrogates or suspends it and that even then another action by the Security Council under the authority of Article 42 would be required.) Wren's article gave the supporters of Washington's position the last word by quoting Ruth Wedgwood, professor of International Law at Yale University and senior fellow at the Council on Foreign Relations, to the effect that the failure of Iraq to cooperate with provisions of the cease-fire, as the article paraphrased her, "would allow the United States to infer that the gulf war is not over." If Professor Wedgwood provided any explanation of how the United States obtained the legal authority to decide unilaterally that a Security Council resolution was abrogated or suspended, the author of the article fails to mention it. It is further notable that while the credentials of Professor Wedgwood are highlighted (although perceptive observers may not be surprised to hear someone associated with the Council of Foreign Relations refrain from challenging establishment positions), we were not told whether her opinion was a considered one or merely an off-the-cuff answer to a reporter or, indeed, whether her studies in the vast field of international law have focused on questions relating to the abrogation of Security Council resolutions following the violation of one provision.
Again, the only "balance" to such biased, incompetent reporting was provided by short letters to the editor. John Carey (in a letter published on 11 February 1998), described as an international lawyer, pointed to the "doubtful relevance" of the Vienna Convention on the Law of Treaties to a Security Council resolution (an argument we will return to) and noted perceptively that termination of the cease-fire "brought back into play Resolution 678" relating to the liberation of Kuwait but questioned whether it would be invoked for such a purpose as "enforcing inspection." The most pointed critique of Wren's article came in a letter by John Quigley, professor of law at Ohio State University, who aptly, in a letter published on 12 February 1998, noted that any action in response to a violation of a provision of a Security Council resolution comes within the authority of the Security Council, not of Washington and London. Thus while the reader was exposed to highly salient biased, confused, and otherwise incompetent coverage wrapped in much questionable citation of the authority of people attached to prestigious institutions, any objections were relegated to hopelessly brief statements made in the form of letters to the editor, which cannot be expected to get the same attention from most readers as a news article with a headline in such biased language as "the likes of Iraq."
THE ISSUE: TERMINATION OF THE CEASE-FIRE
Public discussion of an impending attack on Iraq by United States military forces provides an interesting example of the way "we" get treated as upholding international law. With Iraq recurrently failing to comply with the provision of Security Council Resolution 687 (of 3 April 1991)(6) relating to arms inspection, Washington has claimed the right to take military action against that country - that is, to terminate the cease-fire provided for in the same resolution - without further Security Council authorization on the ground that "existing resolutions," particularly Resolution 678 of November 1990, which authorized the military action taken during the following year, already provide such authorization, although only one of the other four permanent members of the Security Council, the United Kingdom, has supported this point of view.
Iraq was accused of being in violation of Security Council Resolution 687, which provided for a formal cease-fire in the then-recent hostilities "upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions" of the same resolution (Article 33), provisions that include, inter alia, Iraq's unconditional acceptance of "the destruction, removal, or rendering harmless, under international supervision" of its "chemical and biological weapons" (Article 7). As formally acknowledged in a letter by the President of the Security Council to the Iraqi Permanent Representative to the United Nations five days later, Baghdad officially communicated, in the form of a four-and-a-half-page statement by Iraqi Foreign Minister Ahmad Husayn and delivered to the Secretary General of the United Nations and to the President of the Security Council, its acceptance of the terms of Resolution 687 on 6 April 1991.(7) In short, we are dealing with an arrangement proposed in the form of a Security Council resolution which, as designed, came into effect when a state (Iraq) communicated its acceptance.
APPLICATION OF THE LAW OF TREATIES
All of this is essential to an understanding of the legal issues involved because it shows that we are dealing with a formal written agreement between an international organization and a state, namely the United Nations and Iraq. According to Article 2 of the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, signed 21 March 1986 (hereafter referred to as the 1986 Vienna Convention),(8) such "an international agreement governed by international law and concluded in written form . . . , whether . . . embodied in related instruments and whatever its particular designation" comes under the rubric of "treaty" in international law.(9) It is significant that the cease-fire was established, not by Resolution 687 per se (despite the right of the Security Council to make authoritative decisions under Chapter 7 of the Charter), but by an agreement between the United Nations and Iraq, for that means that the rules stated in the Convention clearly are applicable to it, although the legal rules relating to agreements generally are the same regardless of which convention governs them or whether the relevant rules are to be derived from customary international law or the opinio juris(10) (a term which indeed is used to designate those rules incorporated in treaties that have passed, sometimes as a result of the treaty, while in other cases a treaty represents the codification of existing rules or the crystallization of rules already in the process of formation,(11)into customary law even for states - including Iraq in this case(12) - that are not parties to the treaty itself and even before such a treaty goes into force). Although the rules for treaties between states are found in a separate, earlier document, the 1971 Vienna Convention, the rules are essentially the same, with appropriate adjustments, as those in the convention relating to international organizations, notably in the case of the definition of the word "treaty" in each.(13)
THE SOUTH WEST AFRICA/NAMIBIA PARALLEL
The present reasoning parallels that of the ICJ in the South West Africa Cases, Preliminary Objections in 1962. Although the Supreme Council of the Allied Powers selected mandatory powers in 1919, the Council of the League of Nations determined the specific terms of each mandate. The preamble of the mandate for South West Africa in particular stated that "His Britannic Majesty, for and on behalf of the Government of the Union of South Africa, has agreed to accept the Mandate . . . and has undertaken to exercise it on behalf of the League of Nations in accordance with" particular provisions.(14) Pointing specifically to this preamble in its judgment in 1962, the Court concluded that "The Mandate, in fact and in law, is an international agreement having the character of a treaty or convention." It noted "the confirmation of its [the mandate's] acceptance on 9 May 1919 by the Union of South Africa, following the decision of the Supreme Allied Council to award the territory two days earlier, concluding that this and other such mandates constitute
A special type of instrument composite in nature . . . [which] incorporates a definite agreement consisting in the conferment and acceptance of a Mandate . . , a provisional or tentative agreement on the terms of this Mandate between the Principal Allied and Associated Powers to be proposed to the Council of the League of Nations and a formal confirmation agreement on the terms therein explicitly defined by the Council and agreed to between the Mandatory and the Council representing the League and its Members. It is an instrument having the character of a treaty or convention and embodying international engagements for the Mandatory as defined by the Council and accepted by the Mandatory.(15)
As Judge Philip Jessup pointed out in his separate opinion, the Permanent Court of International Justice had already concluded in the Mavrommatis Palestine Concessions case of 1924 that provisions of the Palestine mandate - which also involved a resolution of the League of Nations Council to which a state indicated its consent - constituted a treaty.(16)
AN ALTERNATIVE POSITION
Even a United Nations resolution as such, though not a treaty, often has been deemed analogous to one in many respects (e.g., in matters of interpretation).(17) This reflects the fact that the principles found in both Vienna Conventions on treaties generally represent a codification of preexisting customary law rather than an example of the "progressive development" of law (that is, of the creation of new rules). To a large extent, even the municipal law of various states contains parallel rules relating to legislative statutes, reflecting a similar underlying logic that brings to mind the use of the phrase "general principles of law" (as a subsidiary source of law the Court is authorized to apply) in Article 38 of the Statute of the ICJ. Therefore, even if we were engaged strictly in the application of Security Council Resolution 687 without regard to its being an arrangement that came into effect when another party gave its consent (i.e. a treaty), the validity of this analysis would remain intact. Note that the ICJ statements relating to the South West African mandate came before the adoption of the convention that is being invoked here or, for that matter, before the adoption of any convention on the law of treaties, but which - at least insofar as the issues with which we are dealing are concerned - represents a codification of customary rules pertaining to agreements in general and, as I am suggesting, to such other documents as United Nations resolutions.(18)
NO AUTOMATIC ABROGATION
The South West Africa mandate constitutes the same sort of arrangement adopted by an international body that becomes a treaty by virtue of a declaration of acceptance made by a state that we see in the case of the cease-fire adopted by the Security Council that Iraq formally assented to in 1991. But just as the violations of the terms of the mandate by South Africa required an action of the General Assembly - in the form of Resolution 2145 of 27 October 1966(19) - the cease-fire arrangement agreed upon by the United Nations and Iraq in 1991 remains binding even in the face of a material violation by Iraq until the Security Council decides to terminate or to suspend it. In a written statement to the Court, the United States in particular stressed that "The United Nations Had the Right to Terminate South Africa's Authority . . . . Because of South Africa's Material Breaches of its Mandate Obligations . . . ."(20) No one argued that the arrangement automatically became void by virtue of South Africa's violation of its terms.
The Vienna Convention of 1986 (Article 60) provides that, in the case of "A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as grounds for terminating the treaty or suspending its operation in whole or in part." Article 60 further specifies "the violation of a provision essential to the accomplishment of the object or purpose of the treaty" as constituting a material breach.
Insofar as Iraq reneged on the commitments relating to inspection it made to the United Nations when it communicated its acceptance of Resolution 687, a material breach would seem to have occurred. Such a situation could make way for terminating or suspending other provisions of the agreement, including the cease-fire. But, as is clear from the wording of Article 60 that is cited above, a material breach does not automatically have this effect in the absence of a decision by the other party to terminate it. In other words, unless the other party to the agreement opts to abrogate or to suspend it in whole or in part, it continues in force even in the face of a material breach by one party. Such a decision on the part of the United Nations would have to be made by the Security Council, and it clearly would qualify as a non-procedural matter, that is, one where the unanimous consent of the permanent members would be required.
Furthermore, the other party to the agreement concluded by Iraq when it communicated its acceptance of Resolution 687 was not the United States or any other state. This was an agreement between Iraq and the United Nations. It would be for the United Nations - in this case, the Security Council - to terminate or suspend the agreement in the case of a material violation by the other party. Neither any single member of the Security Council nor any group of members of the world organization acting outside the framework of the body is authorized to take such action. The fact that one member of the United Nations may be in violation of an agreement, a Security Council resolution, or any other legally binding rule does not make it legal for other members to carry out an armed attack against it.
AUTOMATIC REVERSION TO SECURITY COUNCIL RESOLUTION 678?
It may be important to point out that Security Council Resolution 678 of 29 November 1990 authorized member states to use "all necessary means," which includes force, to carry out not only Resolution 660 of August of the same year demanding withdrawal from Kuwait but also "all subsequent relevant resolutions." Does this mean that the violation of any United Nations resolution following the 1991 cease-fire automatically authorizes any member of the organization at any time in the future to use "all necessary means," including force? What is meant by "all subsequent relevant resolutions?" Does Security Council Resolution 687 constitute an example of such a "subsequent relevant resolution?" While the Security Council repeatedly determined that Iraq was not complying with Resolution 687's provisions for inspection, there has been no determination by this organ that that country is in "material violation" of the agreement.
The ordinary interpretation of "subsequent" would seem to be those concluded after the adoption of Resolution 660 up to the adoption of Resolution 678 (and certainly not including resolutions passed after the liberation of Kuwait, the purpose of the latter, was accomplished). To determine otherwise would be to conclude that by passing Resolution 678 the Security Council was delegating its enforcement authority under Chapter 7 of the Charter to whatever member of the United Nations chooses to use it for the indefinite future. That is to say that if Iraq is deemed to have violated any resolution at any time any other member is automatically authorized to bomb or invade it - as though it is subjected to a permanent mark of Cain. To carry the argument further, Resolution 678 would seem to authorize an attack on other countries - not just on Iraq (and, to carry the logic of Washington's position to further absurdity, perhaps by Iraq itself on other states) - to uphold "subsequent relevant resolutions." Is any one member of the United Nations authorized to determine what are "subsequent relevant resolutions?" Considering the interconnected nature of the world, what situation anywhere at any time in the future would not arguably be "relevant" to Security Council Resolution 678?
In one fell swoop, the United States interpretation of Resolution 678 would constitute a major revamping of the provisions - notably of Article 2(4) of the Charter relating to force, with any revocation of the resolution that would constitute a reversion to the Charter's original principles depending on the unanimous consent of the permanent members. This is patently absurd. Such an interpretation of Resolution 678 - i.e., negating Article 2(4) - would put it in conflict "with a peremptory norm of general international law [jus cogens], which, according to Article 53 of both the 1986 Vienna Convention and the 1971 Vienna Convention (another case of a rule that seems to be part of the opinio juris as well), makes a treaty, and by analogy a decision of the Security Council, void (not just voidable at the option of the parties). In any case, a blanket authorization for any state to use force without a time limit would amount to a Security Council decision being used to undo a basic norm of the Charter.
A more reasonable interpretation of the provision relating to "all subsequent relevant resolutions" would limit its application to those involving the demand for withdrawal from Kuwait. Indeed, public explanations of the decision to end the assault on Iraq emphasized that with the liberation of Kuwait the states acting under the authority of Resolution 678 had no authority to go further. And while Resolution 687 imposed new obligations on Iraq in regard to arms reduction and other matters, its adoption of a provision for a cease-fire that would go into effect once Iraq communicated its acceptance of the terms would seem to supersede Resolution 678, thus making it necessary for further action by the Security Council - as in the form of determining that Resolution 687, with its provision for cease-fire, is suspended in response to a material breach by Iraq before that resolution would be relevant to new enforcement measures under Chapter 7.
Furthermore, the authorization to use force in Resolution 678 must be interpreted in light of the evolving positions of members of the Security Council. With the United States unable to get support for its position (and able to get only one other permanent member, the United Kingdom, to back it), it would be difficult to say that unilateral action was being carried out under the authority of the Security Council. Besides muddying the obvious distinction between the Security Council's warning of the possibility of "severest consequences" and the actual use of its authority under Article 42 of the Charter, the Clinton administration demonstrated extreme arrogance when, in the immediate aftermath of the United States failure to get the Security Council to endorse a military threat it still claimed that it had authority to use force.(21) The situation would be different if the provisions of Resolution 678 clearly applied, as if, say, the liberation of Kuwait had been delayed until now. But even in such a hypothetical situation one permanent member would not have the authority to abrogate the cease-fire resolution. In any case, that simply is not the situation we are faced with today when the United States, now challenged by most members of the Security Council, claims the right to use force on the basis of the authority of a resolution passed nearly a decade ago and then implemented soon afterward.
LEGAL LIMITS ON FORCE
If the United States and the few other states that are willing to go along with it cannot base their use of force on the authority of Security Council Resolution 678, on what authority could they do so, considering the provision of the Charter - Article 2(4) - forbidding the use or threat of force? Aside from a special provision in Article 107 relating to actions taken against enemy states during World War II, the Charter allows for only one other possibility, that is, according to Article 51, "individual or collective self-defense if an armed attack occurs." This is not self- defense in some loose sense, such as defense against the long-range peril of Iraqi weapons of mass destruction, but rather self-defense after an armed attack has taken place. For that matter, self-defense in international law was already narrowly defined long before the Charter was written; the classic definition is that of United States Secretary of State Daniel Webster in 1842 and later accepted by the Nuremberg Tribunal as the basis for convicting individuals accused of waging war of aggression. According to Webster, an attack on another state could qualify as self-defense only if such necessity "is instant, overwhelming, and leaving no choice of means and no moment for deliberation."22 Whether or not Iraq is violating a Security Council resolution is strictly irrelevant to the question of using force against it, as is any finding by the Security Council that Iraq is violating one of its resolutions. Similarly irrelevant is any threat by the Security Council to use force (as opposed to an actual decision to use force). The Security Council does not have to wait for an armed attack to occur before using force under Article 42; even "the existence of any threat to the peace" (Article 39) would suffice to justify military action once the Security Council has concluded that measures short of force (provided for in Article 41) are inadequate. Conversely, no violation of international law by one party other than an armed attack gives any member of the United Nations the right to take matters into its own hands through the use of armed force. Such a unilateral action even against a lawbreaker may constitute a more grievous violation of international law, particularly if lives are lost in the process, than the act provoking it.(23)
Taking the treatment of the matter by the New York Times as an example, I have shown how the elite American press has dealt with the question of legality of use of force against Iraq in the context of the recent crisis over the search for weapons of mass destruction. The claims of the United States government have been accepted without serious critical analysis. The press seemed ready to issue legal rulings to legitimize what Washington proposed to do, that is, to "manufacture consent." Only a few short letters to the editor have been allowed to challenge official positions. And yet on such arguments rests the distinction between a government that is acting to enforce the world legal order, as Washington claims to be doing, and one which, whether or not it is reacting to violations by another party, is itself engaged in the use of force in grave violation of the United Nations Charter.
The United States government's claim that it has the right under "existing" Security Council resolutions to carry out an armed attack on Iraq to force it to stop violating commitments it has made is extremely weak. One of the most basic principles established in the United Nations Charter is the ban on use of force, even against a law-breaker, except in cases of individual or collective self-defense (after an armed attack has occurred) or as part of an action taken by the Security Council under Article 42. The action against Iraq in 1991, whose legal justification rested on decisions of the Security Council (and might have been justified in terms of collective self-defense had the Security Council not taken action), has been completed. The new obligations imposed on Iraq relating to inspection for and destruction of armaments as part of the cease-fire (Resolution 687) in 1991 do not come under the authority of Resolution 678 authorizing the use of military force. And to argue that a violation of the terms by Iraq automatically terminates the cease-fire established by Resolution 687 is to ignore the fact that any such action would require a decision by the Security Council, not by a state or states acting on their own. For that matter, with the liberation of Kuwait, the goal for which military action was authorized in the first place, now completed, even a decision of the Security Council abrogating the cease-fire arrangement would have to be followed up by a new action under Article 42 for military action to be legitimate. Those big powers who might act on their own without Security Council approval against what they label a "rogue" state, are themselves playing the role of giant "rogue states." An attack on Iraq, other than one carried out as a new action taken under Article 42, notwithstanding that state's past acts of aggression and even the possibility that it is again acting illegally (short of carrying out an armed attack against another state), would constitute an attack on international law.
1. "Remarks by the Honorable Dean Acheson," Proceedings of the American Society of International Law at the Fifty-Seventh Annual Meeting Held at Washington, D.C. April 25-27, 1963 (Washington, D.C.: American Society of International Law, 1963), pp. 13-15. Quotes from Acheson's statement may also be found in Louis Henkin et al., International Law: Cases and Materials, 3rd edition, American Casebook Series (St. Paul, Minn.: West Publishing Co., 1993), p. 40.
2. Edward S. Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media (New York: Pantheon Books, 1988), passim. In Herman and Chomsky's words, "the media . . . serve to mobilize support for the special interests that dominate the state and private activity" (p. xi).
3. Philip Shenon, "The Law: U.S. Citing Its Authority in 1991 Congress Measure," New York Times, 4 February 1998.
4. Christopher S. Wren, "The Law: U.N. Resolutions Allow Attack on the Likes of Iraq." New York Times, 5 February 1998.
5. It goes without saying that authority based on Security Council resolutions is also based on the United Nations Charter, as the Security Council's authority is derived from the Charter. But see below for the narrow range of military action allowed by the Charter in the absence of a Security Council action. Note that, properly speaking, Article 51, which allows for self-defense in response to an armed attack, does not give such a right but rather recognizes it as an inherent right.
6. For this and other Security Council resolutions, see <gopher://gopher.undp.org:70/00/undocs/scd/scouncil/s>.
7. S/22456. For a documented summary of United Nations' actions in this crisis, see "War in Persian Gulf Area Ends," U.N.Chronicle, June 1991, pp. 4-14. Relevant quotes from the Iraqi foreign minister's letter and of the president of the Security Council's subsequent acknowledgment of it may be found on pp. 5, 7 of the same article. Also see Yearbook of the United Nations 1991, vol. 45 (Dordrecht: Martinus Nijhoff Publishers, 1992), p. 176. In a "Memorandum of Understanding between the United Nations and the Republic of Iraq" (23 February 1998), Iraq reconfirmed its acceptance of Security Council Resolution 687. The text may be found at <http://www.cnn.com/WORLD/9802/23/un.iraq/agreement/index.html> or at <http://www.undp.org/missions/iraq/mou98.htm>.
8. See International Legal Materials 25 (May 1986): 545-546 for the text of this convention.
9. Note that the definition of a treaty in international law is broader than that in the United States Constitution (which is a matter of municipal law), encompassing not only those agreements made by the United States president that require the "advice and consent" of the Senate but also most executive agreements and some exchanges of notes.
10. The complete Latin phrase is opinio juris sive necessitis.
11. See the selections from the International Court of Justice's decision in 1969 in the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark) (Federal Republic of Germany v. Netherlands) in Henkin, pp. 78ff.
12. Iraq has neither signed nor ratified the 1986 Vienna Convention. With only 38 signatories (states and international organizations) and 24 ratifications, the Convention still is not in force. Multilateral Treaties Deposited with the Secretariat of the United Nations <http://www.un.org/Depts/Treaty/fined/ts2/newfiles/part_boo/xxiiiboo/xxiii_3.html>.
13. See Article 2(a) of the 1971 Vienna Convention, which may be found in Ian Brownlie, ed., Basic Documents in International Law, 4th edition (Oxford: Oxford University Press, 1995), pp. 388-425.
14. For the text of the South West Africa mandate, see John Dugard, The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations (Berkeley: University of California Press, 1973), pp. 72-74.
15. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) Preliminary Objections, Judgment of 21 December 1962: I.C.J. Reports 1962, pp. 7, 15. For relevant selections, see Dugard, p. 246. Further analysis may be found in M. Hidayatullah, The South-West Africa Case (Bombay: Asia Publishing House, 1967), pp. 20ff.
16. South West Africa Cases, pp. 90, 91. In Judgment No. 2 (Jurisdiction), the Court's decision read as follows: "The Parties in the present [Mavromatis] case agree that Article 26 of the Mandate falls within the category of 'matters specially provided for in Treaties and Conventions in force'. . . ." See Manley Hudson, ed., World Court Reports: A Collection of the Judgments Orders and Opinions of the Permanent Court of International Justice, Volume I, 1922-1926 (New York: Carnegie Endowment for International Peace, 1934; reprinted by Oceana Publications, Inc., Dobbs Ferry, N.Y., 1969), p. 301. However, I see no statement in the Court's decision that explicitly explains the rationale for this conclusion.
17. See Glenn Perry, "Security Council Resolution 242: The Withdrawal Clause," Middle East Journal 31 (Fall 1977): 414; Yehuda Blum, Secure Boundaries and Middle East Peace (Jerusalem: The Hebrew University of Jerusalem Faculty of Law, Institute for Legislative Research and Comparative Law, 1971, p. 74.
18. Paragraph 94 of the ICJ's opinion on Namibia states that "The rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject." John Dugard, ed., The South West Africa/Namibia Dispute.' Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations (Berkeley: University of California Press, 1973), p. 471.
19. See Legal Consequences, p. 123.
20. These are the words of the heading for Section VIII of the United States statement, p. 871 of Legal Consequences.
21. Steven Lee Myers, "U.S. Insists It Retains Right to Punish Iraq," New York Times, 4 March 1998.
22. See Henkin, pp. 872, 881-882.
23. It can be argued that use of force by member states even when authorized by the Security Council is a violation of the Charter, which provides for special agreements designating what forces are to be available to the Security Council (Article 43), with such forces directed by a Military Staff Committee made up of the chiefs of staff of the permanent members (Article 47). Such provisions fell into disuse as a result of divisions among the permanent members during the Cold War, but it is notable that even at a time when no such excuse seemingly existed there was no attempt to revive the provisions.
Glenn E. Perry is a professor of political science at Indiana State University, Terre Haute.
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|Author:||Perry, Glenn E.|
|Publication:||Arab Studies Quarterly (ASQ)|
|Date:||Jun 22, 1998|
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