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What Happens Now? The United Nations After Iraq

Published online by Cambridge University Press:  27 February 2017

Thomas M. Franck
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Extract

Thirty-three years ago I published an article in this Journal entitled Who Killed Article 2 (4)? or: Changing Norms Governing the Use of Force by States, which examined the phenomenon of increasingly frequent resort to unlawful force by Britain, France, India, North Korea, the Soviet Union, and the United States. The essay concluded with this sad observation:

The failure of the U.N. Charter's normative system is tantamount to the inability of any rule, such as that set out in Article 2(4), in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the super- Powers, has usually won out over treaty obligations. This is particularly characteristic of this age of pragmatic power politics. It is as if international law, always something of a cultural myth, has been demythologized. It seems this is not an age when men act by principles simply because that is what gentlemen ought to do. But living by power alone ... is a nerve-wracking and costly business.

Type
Agora: Future Implications of the Iraq Conflict
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 607 - 620
Copyright
Copyright © American Society of International Law 2003

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References

1 Franck, Thomas M., Who Killed Article 2(4) ? or: Changing Norms Governing the Use of Force by States, 64 AJIL 809, 836 (1970)Google Scholar.

2 Thucydides, The Peloponnesian War: The Complete Writings of Thucydides 331 (Richard Crawley trans., 1934). The effort Thucydides describes, of a highly cultivated, relatively democratic Athens, destroyed in a futile effort to protect itself against every eventuality by attacking and securing the submission of all islands from which danger might emanate, is highly relevant to our times.

3 GA Res. 377A (V), UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (1950).

4 Chief among these was a general, if still controversial, acceptance that self-defense could entail a right of first strike against an immediate and overwhelming threat of attack, and the use of force in egregious instances of the violation of human rights and humanitarian law. See Franck, Thomas M., Recourse to Force: State Action Against Threats and Armed attacks 53–173 (2002)CrossRefGoogle Scholar.

5 SC Res. 1368, pmbl., para. 3 (Sept. 12, 2001), 40 ILM 1277 (2001).

6 SC Res. 1373, paras. 1, 2 (Sept. 28, 2001), 40 ILM 1278 (2001).

7 GA Res. 3379 (XXX), UN GAOR, 30th Sess., Supp. No. 34, at 83, UN Doc. A/10034 (1975).

8 The deputy legal adviser of the British Foreign Office, however, resigned in repudiation of this line of legal reasoning. Burns, Jimmy, Anti-War Group Beset by Strategy Arguments, Fin. Times (London), Mar. 22, 2003, at 8 Google Scholar. The British academic supporter was Professor Christopher Greenwood, who prepared an opinion for use in Parliament. Greenwood, Christopher, Memorandum: The Legality of Using Force Against Iraq (Oct. 24, 2002), available at <http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmselect/cmfaff/196/2102406.htm>>Google Scholar.

9 Taft, William H. IV, Remarks Before National Association of Attorneys General (Mar. 20, 2003), excerpted at <http://usinfo.state.gov/regional/nea/iraq/text2003/032129taft.htm>..>Google Scholar

10 SC Res. 1441 (Nov. 8, 2002), 42 ILM 250 (2003).

11 Lord Goldsmith, Attorney General Clarifies Legal Basis for Use of Force Against Iraq (Mar. 18,2003), available at <http://www.fco.gov.uk> (statement in answer to a parliamentary question).

12 Taft, supra note 9; see also Murphy, Sean D., Contemporary Practice of the United States, 96 AJIL 419, 427 (2003)Google Scholar.

15 Goldsmith, supra note 11.

14 SC Res. 660 (Aug. 2,1990), 29 ILM 1325 (1990).

15 SC Res. 661 (Aug. 6,1990), 29 ILM 1325 (1990).

16 SC Res. 662 (Aug. 9,1990), 29 ILM 1327 (1990).

17 SC Res. 678 (Nov. 29,1990), 29 ILM 1565 (1990).

18 The president said, “The U.N. resolutions never called for the elimination of Saddam Hussein. It never called for taking the battle into downtown Baghdad.” 1992–93 Pub. Papers 568.

19 SC Res. 687, para. 33 (Apr. 3,1991), 30 ILM 846 (1991).

20 Id., paras. 8, 9, 10, 12, 13.

21 Id., paras. 9, 10, 13.

22 Id., para. 32.

23 Id., para. 34.

24 Goldsmith, supra note 11.

25 SC Res. 687, supra note 19, para. 34.

26 SC Res. 1441, supra note 10, pmbl., para. 2.

27 Id., paras. 12, 13.

28 Id., para. 14.

29 Goldsmith, supra note 11.

30 Id.

31 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, 1155 UNTS 331.

32 Id., Art. 43.

33 Franck, supra note 4, at 5–9.

34 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16,22, para. 22 (June 21).

35 Franck, supra note 4, at 135–73.

36 Constitutive Act of the African Union, July 11, 2000, Art. 4(h), available at <http://www.africa-union.org>.

37 Anne-Marie, Slaughter, Chance to Reshape the U.N., Wash. Post, Apr. 13, 2003, at B7 Google Scholar.

38 Id.

39 That the evidence adduced for the Security Council by the British and American governments was, at best, unconvincing and in part misrepresented and falsified is suggested by many commentators. See Krugman, Paul, Matters of Emphasis, N.Y. Times, Apr. 29, 2003, at A29 Google Scholar; Kristof, Nicholas D., Missing in Action: Truth, N.Y. Times, May 6, 2003, at A31 Google Scholar.

40 Glennon, Michael J., Why the Security Council Failed, Foreign Aff., May/June 2003, at 16, 34.CrossRefGoogle Scholar

41 Phillips, Kevin, How Wealth Defines Power, Am. Prospect, May 1, 2003, at A8, A9 Google Scholar.

42 Glennon, supra note 40, at 34.

43 Id. at 31.

44 The National Security Strategy of the United States of America (Sept. 17, 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf> [hereinafter NSS].

45 Id. at 15 (in Part V, Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction).

46 Id.

47 Id.

48 Franck, supra note 4, at 53–68, 97–108.

49 Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), quoted in 2 John Bassett Moore, A Digest of International Law 412 (1906). For a discussion, see 1 Oppenheim’s International Law 420–27 (Jennings, Robert & Watts, Arthur eds., 9th ed. 1992)Google Scholar.

50 NSS, supra note 44, at 6 (in Part III, Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends).