A rchive Date
[ 18-03-2003 ]
Category
[ International Relations ]
sub-Categoy
[ U.N ]
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[http://www.canoe.ca/Columnists/mansur_toronto.html
Will the conflict violate international law?
By SALIM MANSUR -- For the Toronto Sun
March 18, 2003
Will the looming U.S.-led invasion of Iraq conform with international law or violate it?
Opponents of the use of force argue any military action against Saddam Hussein's regime automatically suspends the UN weapons inspection process put in place under the authorization of UN Security Council resolution 1441 and thus constitutes an infringement of international law.
They also contend that any unilateral move to war by the American-led coalition would breach the UN Charter prohibiting the use of force except under two conditions - for self-defence and for collective security, authorized by the Security Council under Chapter VII of the UN Charter.
This is the view of UN Secretary-General Kofi Annan, who argued recently: "If the U.S. and others were to go outside the Council and take military actions, it would not be (in) conformity with the Charter."
This argument, however, is not conclusive.
As Geoff Hoon, the British Defence Secretary, responded: "As a lawyer myself, I have always taken the view that if the law was so clear, you wouldn't need my profession. So I accept there are going to be differences of legal opinion."
Law, by which a society regulates itself - as many legal theorists have noted - is something that most of us can recognize or understand, but cannot easily define.
Even when legal theorists conclude, with qualifications, that law is, as John Austin observed, commands and habits, it remains a discipline burdened with ambiguities. This is never more so than when discussing international law.
The most that can be said about international law is that it is evolving, and while its sources are located in international conventions, treaties, juristic theories and, increasingly, in the UN Charter and accompanying documents, there is no sovereign international authority that can make international law binding on its subjects, which are member states sovereign within their own jurisdictions.
The UN is not a world government, and the Security Council is not a judicial body. Those who speak of international law in the strict sense of an existing body of rules and procedures, as is found in the UN Charter, and a sanctioning mechanism to enforce them, discount UN history for what it is - an institution whose decision-making in reference to war-making is primarily political.
The war-making authority of the UN resides in Chapter VII of the UN Charter, but this authority is constrained by the veto power of any one of the Security Council's five permanent members. Hence the legality of war depends upon how any permanent member decides to vote on such a resolution, and this decision is ultimately political in nature.
Indeed, French President Jacques Chirac's recent declaration that France would veto any resolution authorizing war indicated unambiguously the political nature of the Security Council's decision-making process. Chirac's notice underscores the point that even if there were justifiable reasons found for the UN to authorize the use of force, they can be nullified by a veto-wielding permanent member of the Security Council.
An argument can be made that the UN should not authorize war unless there is a consensus in the Security Council. But the absence of consensus alone does not necessarily define a war as unjust or illegal.
For examples, look to the recent past in Kosovo, or during the Cold War years in Pol Pot's Cambodia, or in the rape of former East Pakistan (now Bangladesh) by the Pakistani military junta in 1971.
In each of the above instances, the decision to go to war to end human rights abuses and bring about regime change was made outside of the Security Council. There is no dispute in the Security Council about the nature of Saddam's regime, and the record of its non-compliance with UN Security Council resolutions dating back to 1991.
This consensus was reflected in the unanimity behind the passage of Resolution 1441 more than four months ago, which warned Iraq to disarm immediately or face "serious consequences." Resolution 1441 also cited the authority of the Security Council through the use of "all necessary means" to uphold previous resolutions Iraq had ignored.
In the absence of a second Security Council resolution, the dispute is whether 1441 can be read as authorizing war if Iraq is not in "full and immediate compliance ... without conditions or restrictions" regarding its disarmament.
The interpretation of 1441 is, therefore, as much a political question as it is a legal one, and the legality of the coming war against Iraq will remain inconclusive and in dispute.
No doubt the opinions expressed in this column will be disputed. This will only confirm, paradoxically, Professor H.L.A. Hart's perspective that the realm of international law is a contested field, wherein disputes are mediated by politics as an expression of power and interests.
Salim Mansur is a professor of political science at the University of Western Ontario. His column appears alternate Thursdays. He can be reached at smansurca@yahoo.ca Letters to the editor should be sent to editor@sunpub.com
 World Fact Book (CIA)]
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