Relying on U.N. Security Council
Resolution 1441 (2002) and on the sovereign authority
of the United States to use force in assuring its own
national security, President Bush has said that the
United States and its allies will use armed force to
disarm Iraq if Saddam Hussein and his sons do not leave
Iraq within a 48-hour deadline.
An issue not discussed in
those Insights concerns the unsuccessful effort by the
United States, the United Kingdom and Spain to secure
the nine votes that would be necessary in the Security
Council (in the absence of a veto by a permanent member)
to obtain a further resolution that would clearly authorize
the use of force. It could be argued that the effort
itself shows that the proponents recognized not only
that Security Council support is necessary (and that
the only other permissible ground for use of force,
self-defense, is inapplicable), but also that Resolution
1441 and the earlier Resolutions 678 and 687 did not
clearly enough authorize the current use of force.
The proponents then could be said to have regarded a
clearer demonstration of support by the Security Council
to be a legally significant - perhaps a necessary -
authorization for the use of force under the current
circumstances. The withdrawal of the proposed resolution
in the face of a lack of sufficient backing from other
Security Council members thus could indicate that an
essential prerequisite to the use of force is lacking.
The argument to the contrary
would be that the effort to obtain nine votes for a
new resolution simply shows that the United States and
its allies were doing everything possible to work within
the system, without conceding that it was legally necessary
to obtain any new authorization for the use of force.
The U.S. government has consistently made that argument
since Resolution 1441 was adopted. Some support for
the argument could be drawn from the willingness of
the United States to push for nine votes in the Security
Council even in the face of an inevitable veto that
would have defeated the proposed resolution and would
have blocked any new authorization.
About the Author:
Frederic L. Kirgis is Law School Association Alumni
Professor at Washington and Lee University School of
Law. He has written a book and several articles on United
Nations law, and is a member of the Board of Editors
of the American Journal of International Law.
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