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[Previous entry: "A perspective from Dili"] [Main Index] [Next entry: "The proposed smoking ban in Washington State"] 13 March 2003: "The "unique legitimacy" conferred by the Security Council"I was recently made aware of something Peggy Mason, "Ambassador to the UN for Disarmament" for Canada between 1989 and 1994, said in a CTV interview (source: "PM wraps up Mexico trip focused on Iraq crisis"): "I find it very interesting that the United States is leading the charge calling for Saddam Hussein to comply to the letter ... with resolution 1441 but the U.S. itself cares nothing for this resolution," Mason said.For starters, I should point out that I've never heard of something like an "Ambassador for Disarmament"; I suspect Ms. Mason is a member of the Canadian foreign service, who attained the rank of Ambassador within the service, and served as Canada's representative to the UN Conference on Disarmament. But I digress. While I think Ms. Mason has a point, speaking in a very narrow legalistic sense, I think her opinion is short-sighted. The US has claimed that it already has the authorisation it needs to initiate military action, though it has not explicitly set out the rationale upon which it bases this assertion. I would speculate that the rationale is something along the following lines: Let us assume that when, the UN Security Council passes a resolution, it is the Council's intention that that resolution be complied with; for otherwise, the resolution in question is merely a dead letter (I will leave aside the possibility that certain Member States may actually intend for this to be the case). Iraq has demonstrated abundantly over the past twelve years that it has, in spite of many statements by the Iraqi government to the contrary, no intention of divesting itself of its NBC weapons and complying with resolution 687 (1991) and all subsequent relevant resolutions. A wide array of measures has been employed against Iraq in an effort to coerce its government to comply—from sanctions to punitive bombing (Operations "Desert Strike," "Desert Fox" et al.)—and all have failed to do so. Thus, the US government argues, the only option left is to remove the current Iraqi government and replace it with one which will comply with these resolutions. To argue, as Mason does, that this action would be illegal because it has not been explicitly authorised by the Council is to argue the letter of the law to the detriment of the framers' intent. This is what US Secretary of State Powell means when he says the UNSC is in danger of making itself irrelevant; if the Members of the Council pass one resolution after another, yet make no move to provide for the enforcement of these resolutions, and, moreover, one or more Member States can prevent another taking action to see these resolutions are enforced ("We didn't authorise that!"), the inevitable result will be a devaluation of UNSC resolutions to the point they're not worth the paper they're written on. No resolution passed by the UNSC regarding Iraq since 678, including 1441, has explicitly authorised the use of force, though all of them have been passed acting under Chapter VII. Mason's argument, therefore, must be that none of these resolutions explictly provides for the enforcement of itself or any other, and that therefore action to enforce these sanctions is illegal, illegitimate, unwarranted, or some term to that effect. This, however, is analogous to saying that if a UNSC resolution calls for its favourite baseball team to hit a home run, a second resolution would be required to allow a player to even pick up a bat, let alone step up to the plate. (Sports analogies? I must be integrating.) If we take Mason's argument to be correct, the logical conclusion is that the UNSC, as a body, has been passing laws which it never intended to enforce for nigh on twelve years. And when a legislative body of any kind creates a law it knows beforehand it is unwilling or unable to enforce, that reflects adversely upon the body of law as a whole. In short, UNSC resolutions are worthless, and thus the credibility, indeed the legitimacy, of the UNSC goes down the drain. Alternatively, one may argue that the provision to enforce a Chapter VII sanction is implicit in the resolution; the exact method how needs to thrashed out in the Council, and preference should be given to enforcement measures not involving the use of armed force before armed force is resorted to (Article 41 before Article 42), but in order to authorise the enforcement of an existing resolution, it should not be required that new, separate resolution be passed. Resolution 1154 (1998) warned Iraq to comply with the terms of resolution 687 (1991) or face "the severest measures" (and that was five years ago); 1441 gave Iraq one final opportunity to comply or face "serious consequences" (and given what had already been thrown at Iraq, up to and including punitive bombing, and given the prior existence of a resolution threatening the "severest measures," I find it hard to imagine that "serious consequences" could mean anything short of full-scale ground war.) Both these resolutions were passed—and I cannot stress this enough—unanimously: 15 votes in favour, no votes against, no abstentions even. When a body unanimously passes a resolution, and then refuses to enforce it (or have it enforced), what credibility can that body possibly have? The US hasn't so much driven the UNSC into a corner, as that France and Russia have painted the Council into one by voting in favour of 1441 and then trying to weasel out of having it enforced; if any member of the Council had wanted to make a stand, it should have done so by voting against 1441. But since it has passed 1441, the Council can now choose (as a body) to assert its primacy, but that would be at the expense of its credibility. It would also be at the expense of ever being able to call on the US for assistance for a long time to come; and since the US has the 13 best-equipped and most heavily armed standing divisions in the world (10 Army, 3 Marines), that means the Council's means to enforce its resolutions (as if it would matter) will be severely impaired as well. Another problem to the Masonesque argument is that if the US were to invade Iraq without invoking any UNSC resolution, the task of assessing whether the US's action formed a threat to international peace and security would fall to the Council. And any resolution to the effect that the US's action did form a threat would be vetoed by the US. The result is that, taking Ms. Mason's reasoning to its logical conclusion, legally, the US is better off doing what it wants without consulting the Security Council. I doubt that was what Ms. Mason had in mind. |
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