Between the Devil and the Deep Blue Sea- Bush or Kerry?

Frank - You seem to be starting to lose your sunny disposition. Hope it's a temporary thing.

For clarification, are you suggesting that China and Russia did not sign 1441?

Seems to me as he is a former soldier, that he would have looked past all his political disagreements and voted for the Bill to at least support the troops and the effort since we were already there. Especially since he has been bitching that the troops weren't well equipped when they fist went over. He knew the prospect of other countries jumping in with thousands of troops and money was very unlikely.

If you ever get the chance, Scrat-- go to New York's St. Paddy's Day parade. You will not be disappointed.

If you believe differently, offer me evidence of other UN resolutions that were similarly written and show that the effective treatment was different.

That way you could at least offer me a precedent for the notion that when a UN resolution reads that it grants authority to member states to take action

Of course, my point seems to square with the evidence, while yours suggests that we can't really take the evidence to mean what it (again) clearly reads in English.

(And yes, I love that word "clearly".)

Scrat wrote:

If you believe differently, offer me evidence of other UN resolutions that were similarly written and show that the effective treatment was different.

I can't do that, just like you can't - neither of us apparently is a legal expert.

On a related point, note that the ceasefire, according to the text of the resolution, was "based on acceptance by Iraq of the provisions of that resolution". Problem here is that previously, Iraq had been shown to be in violation of those provisions, but that right now, it had actually let the weapons inspectors back in and no evidence that there were still weapons forbidden by the resolutions there had been found yet.

3. Decides that, in order to begin to comply with its disarmament obligations, in addition to submitting the required biannual declarations, the Government of Iraq shall provide to UNMOVIC, the IAEA, and the Council, not later than 30 days from the date of this resolution, a currently accurate, full, and complete declaration of all aspects of its programmes to develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery systems such as unmanned aerial vehicles and dispersal systems designed for use on aircraft, including any holdings and precise locations of such weapons, components, sub-components, stocks of agents, and related material and equipment, the locations and work of its research, development and production facilities, as well as all other chemical, biological, and nuclear programmes, including any which it claims are for purposes not related to weapon production or material;

4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations...

I am sure the government has people much more educated in international law than us working on this. If it were indeed illegal, it would have come out long before now.

McGentrix wrote:

I am sure the government has people much more educated in international law than us working on this. If it were indeed illegal, it would have come out long before now.

Ah, the "the government knows more than us and is going to take care of us" arguement.

Saddam had to go. If not now, when? The US-led coalition simply stepped up and put teeth in the UN's toothless grin. (Shame they lack the sense to just say thank-you.)

The Right of Individual and Collective Self-Defense (Article 51)

Article 51 regarding the right of "individual and collective self-defense", which the authors do cite, is no less riddled with unresolved conundrums, some of which the post-September 11 realities have served to heighten.

"Nothing in the present Charter", the provision states, "shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security". Measures so taken are to be reported to the Security Council and are not to affect that organ's responsibility "to take at any time such action as it deems necessary in order to maintain or restore international peace and security".

-- There has been a persistent debate among scholars about whether anticipatory self-defense is or is not permitted. On the basis of the drafting history of the provision and considerations of logic, renowned international law experts such as James Brierly, Julius. Stone, Derek Bowett, and Myres McDougall concluded that it was. State practice too accords with that view. A state need not wait for an attack to occur; an "imminent" attack may be preempted. But how "imminent" need the attack be in order to activate a right of self-defense as a matter of "necessity"?

Even before September I 1, states occasionally asserted the right to act to remove weapons possessed or being developed by dictators with presumed aggressive designs. Israel's 1981 action in Iraq is a prominent example; and though it was condemned by the UN at the time, it was retrospectively vindicated by world public opinion a decade later as a result of the Gulf War. The U.S. quarantine of Cuba in 1962 ­ a warlike act ­ was aimed at removing the threat of Cuban missiles and was similarly directed at a less than imminent threat -- and this, despite the arguably defensive nature of the Cuban missiles and the possibility of a grave confrontation with a nuclearized Soviet Union.

-- Since the terrorist attacks on the Twin Towers and the Pentagon, the case for preemptive action against Saddam's Iraq is even more compelling. When dealing with rogue states which support, harbor and encourage such terrorism, it has been plausibly suggested, the test of "imminence" and "necessity" requires reassessment and revision. The oft-cited Caroline formula regarding self-defense enunciated in 1842 by U.S. Secretary of State Daniel Webster in correspondence with Britain may be inapplicable in a context such as Saddam's Iraq. To require that the "necessity" of self-defense be shown to be "instant, overwhelming, leaving no choice of means and no moment for deliberation" makes sense when dealing with a state able and willing to suppress terrorist threats to other states. But as Abraham Sofaer has cogently argued ("lraq and International Law", Wall Street Journal, January 30, 2003), Saddam is a major part of the problem. And on the basis of his past aggressive words and deeds, the conclusion that he is not likely to be deterred by measures short of war appears more reasonable than the opposite assumption, of deterrability, adopted by the authors of the joint letter.

-- "Necessity" and "proportionality" as concomitants of the right of self-defense have always involved generous doses of subjective appreciation along with some fundamental theoretical questions. Is the "necessity" to be limited to repelling the immediate danger or does it include the removal of the danger? Must actions be proportionate to measures taken or also to those threatened? (The issue has been perceptively discussed by Robert W. Tucker, inter alia in his edition of Hans Kelsen's Principles of International Law.) In some instances, "necessity" might include action taken to induce regime change. As noted by Justice Stephen Schwebel in the Nicaragua case, government overthrow can be a defensive measure, as in anti-Axis acts in World War Il. Similar arguments were put forward by Iran during the lran-Iraq War.

-- Article 51 does not indicate who is to determine whether or not the Security Council "has taken the measures necessary to maintain international peace and security". Though the assumption that it is the Security Council is widely held, the provision's silence on this point, as Hans Kelsen notes, permits states to press a valid argument that they are the final arbiters in the matter. In some situations, such arguments have been deemed sufficiently persuasive to be endorsed, implicitly or explicitly, by other states and international lawyers. Most notably this was the case when Israel decided to act in 1967 against threats to its security which were becoming more palpable daily as the Security Council was proceeding with its vacillation and virtual deadlock. Would the United States and its coalition partners be entitled to press a similar argument today, given the dangers of continued delay? Would they be required to stay their hand while the Security Council remains deadlocked, inspections proceed interminably. Saddam's prevarications are increasingly and naively accepted as signs of "progress", and the possibility of launching effective actions against the dangers posed by his regime diminish perilously?

-- Both legally, practically, and morally, the effects of delay on the right of self-defense have been insufficiently recognized by most observers. Even in 1991, Iraq furnished a good example of the Catch 22 aspects involved. Following the invasion of Kuwait, attempts were made to settle the matter diplomatically and through the adoption of economic sanctions. Politically, these were surely the preferred means of settlement; and some have read the relevant Charter articles (41 and 42) to mean that any UN endorsement of the use of force must be preceded by the proven ineffectiveness of non-military measures of enforcement. But the more a military response to prior aggression is delayed, the more inevitably it begins to appear like the initiation of hostilities rather than as a defensive response to a prior aggression. Thus, when the UN-sanctioned Gulf War coalition launched its attack in January l 991 to liberate Kuwait from Iraq's invasion of the previous August, the Pope and Coretta Scott King (Martin Luther King's widow), among others, deplored the decision of the defending forces to resort to force. Today, the dilemmas are, if anything, more acute. The actions of President Bush and his coalition partners are daily being more widely depicted as "war-mongering" rather than defensive; and as the real threats emanating from lraq increase, the risk of U.S.-U.N. paralysis and "self-deterrence" threatens to grow commensurately.
http://www.aijac.org.au/updates/Mar-03/030303.html

Security Council Resolutions and Authorization

Much of the continuing debate in the Security Council on Iraq is premised on the assumption, shared by the authors of the joint letter, that the Security Council has not yet endorsed the use of force, and that failing a further resolution authorizing resort by states to "all necessary means" against Saddam, any action taken would fall outside the realm of legality and multilateral legitimation. An opposite and plausible case can and has been made on the basis of the wording of resolutions already adopted, and on a comparison between the present context and that of Kosovo.

-- Security Council Resolution 1441 of November 2002 was a carefully crafted compromise, and from the American perspective, for example, several of its formulations and references to previous resolutions could well furnish a foundation for military action against Saddam even if no further enabling resolution is adopted. The reference to Resolution 687, which established the cease-fire and disarmament regime following the 1991 Gulf War, is deemed particularly significant, combined as it is with the Council's finding that Iraq has been in "material breach" of its obligations under that resolution. Among other provisions noted in Resolution 1441 are the Council's "deploring" Iraq's failure to comply with its commitments with regard to terrorism, ending the repression of its civilian population, providing needed access to humanitarian organizations and accounting for Kuwaiti and third country nationals wrongfully detained. Though the resolution contemplated further meetings by the Security Council, it also referred to the "final opportunity" which it was granting Iraq to comply with its disarmament obligations, and the "serious consequences" which Iraq would face if it continued to violate its obligations. The assumption of the American and British cosponsors of the resolution was that the inspection regime would not be dragged out indefinitely; and their conclusion, on the basis of the reports submitted so far, that Iraq had in fact committed a "further material breach" of its obligations was far from unreasonable under the circumstances.

-- lf such purported Security Council authorization of force can be deemed ambiguous, at best, it is instructive to compare it with the Kosovo intervention in which UN authorization was totally lacking. In that case, the 77-day bombing of Serbia was conducted by a Clinton-led "coalition of the willing" under a NATO umbrella, without the UN endorsement required by Article 53 of the Charter. Paradoxically, many of today's most vocal critics of the contemplated use of military force by a "coalition of the willing" against Saddam Hussein hailed the Kosovo action as an admirable instance of "humanitarian intervention". Yet both legally and morally, the justification for using force in Kosovo was far weaker than in the case of Iraq. As Australia's Foreign Minister, Alexander Downer, correctly noted, the Milosevic regime was terrible "but not as terrible, by a very long stretch of the imagination, as the regime of Saddam Hussein". Nor was there in the former case any credible threat of weapons of mass destruction against the surrounding region or the world. Moreover, the chances of removing Milosevic by democratic means were far from remote; and indeed many of his harshest internal democratic critics resented the NATO bombing, attributing to it the two-year delay in ridding the Serb population of his oppressive rule. Also resented was the "collateral damage" inflicted on innocent civilians, including third parties and some of those who were to be rescued by the bombing campaign.

-- The authors of the joint letter imply that even a Security Council resolution authorizing an attack on Iraq might not render the military action legal. The Council's action might contravene the Charter for lack of sufficient evidence of an actual threat to the peace and for failure to prove that the threat could not be averted by non-force means. There are indeed many instances in which past Security Council actions should arguably not have been regularly viewed by so many international lawyers as presumptively intra vires. But to imply an ultra vires argument in the present case is to press a particularly questionable, if not spurious view of the facts, and to indulge in a goodly measure of wishful thinking regarding Saddam's intentions and ability to threaten the peace.
http://www.aijac.org.au/updates/Mar-03/030303.html

[No, it's the "the Government hires people who have trained most of their lives to be lawyers and specialize in international law and have experience in dealing with issues whereas many of the poster on A2K do not" arguement.

Now go back into your hole.

Quote:

lf such purported Security Council authorization of force can be deemed ambiguous, at best, it is instructive to compare it with the Kosovo intervention in which UN authorization was totally lacking.

Scrat wrote:

Quote:

lf such purported Security Council authorization of force can be deemed ambiguous, at best, it is instructive to compare it with the Kosovo intervention in which UN authorization was totally lacking.

Didnt the UN legitimize that action after the fact (after the start of the intervention)?

I do not know. I do not believe that [Kerry] is, quote, "weak on defense." He's responsible for his voting record and we all are responsible for our records and he'll have to explain it. But, no, I do not believe he is necessarily weak on defense. I don't agree with him on some issues, clearly, but I--I decry this negativism that's going on on both sides. The American people don't need it. And the end result will be lower voter turnout, particularly amongst younger Americans.

Both sides have been beating up on the other in the most negative campaign earlier than I've ever seen. I would like to see it stop. I would like to see a serious discussion about Medicare, Social Security, education, what we're going to do about the deficit and overspending.