¹ Charter of the United Nations, June 26, 1945, Can. T.S. 1945 No. 7, 59 Stat. 1031, 145 U.K.F.S. 805. art/ 2(7) [hereinafter Charter].

² For a classic and accessible introduction to this approach, see Reisman, Michael, “International Lawmaking: A Process of Communication” (1981) 75 Proceedings of the American Society of International Law 101.Google Scholar

³ Axworthy, Lloyd, “Keynote Speech” (“Think Canada” Conference on Issues for the Twenty-First Century: Think Peace and Security, Tokyo, Japan, April 17 2001 Google Scholar [unpublished].

⁴ See Axworthy, Lloyd,Minister of Foreign Affairs of Canada, “Human Rights and Humanitarian Intervention: Notes for an Address (2000/29)” (Washington, DC, June 16, 2000Google Scholar) [unpublished]; van Aartsen, Jozias, Foreign Minister of the Netherlands, “Opening Remarks,” in International Peace Academy, “Humanitarian Action: International Peace Academy Report,“ report of a Conference (New York: International Peace Academy, 2000), Annex II, at 12.Google Scholar

⁵ On US normative exceptionalism, see, on the academic front, Glennon, Michael, “American Hegemony in an Unplanned World Order” (2000) 5 Journal of Conflict and Security Law 3 CrossRefGoogle Scholar; and, on the journalistic front, Hitchens, Christopher, “Rogue Nation U.S.A.,” Mother Jones, May/June 2001, at 32.Google Scholar

⁶ I do not wish to deny that the concerns about the production and possible re-use of some weapons of mass destruction by the current, or a future, Iraqi regime does not have a humanitarian component. It clearly does. The goal of preventing a capacity to use such weapons as chemical and bacteriological warheads is clearly a legitimate humanitarian concern from a preventative perspective. The use of the term “weapons of mass destruction” includes mass death.

⁷ UN Security Council Resolution 678 (1990), November 29, 1990, text can be accessed online at <http://www.un.org/Docs/scres/1990/678e.pdf> (last visited March 28, 2002).

⁸ UN Security Council Resolution 687 (1991), April 3, 1991, text can be accessed online at <http://www.un.org/Docs/scres/1991/687e.pdf> (last visited March 28, 2002).

⁹ This is an argument by analogy with the provisions on material breach of treaties: see Article 60 of the Vienna Convention on the Law of Treaties, January 27, 1969, 1155 U.N.T.S. 331.

¹⁰ United Nations — Iraq Memorandum of Understanding, February 23, 1998, (1998) 37 I.L.M. 501.

¹¹ See, UN Security Council Resolution 1154 (1998), March 2, 1998, at para. 3, text can be accessed online at <http://www.un.org/Docs/scres/1998/sres1154.htm> (last visited March 28, 2002): “The Security Council ... [s]tresses that compliance … is necessary for the implementation of resolution 687 (1991), but that any violation would have severest consequences for Iraq.”

¹² Note by the President of the Security Council, UN Doc. S/25091 (1993). In 1997, the president said: “The Security Council warns of the serious consequences of Iraq’s failure to comply immediately and fully.” Statement of the President of the Security Council, UN Doc. S/PRST/1997/49, October 29, 1997, text can be accessed online at <http://www.un.org/Docs/sc/statements/1997/prst9749.htm> (last visited 28 March 2002).

¹³ See Gray, Christine, “After the Ceasefire: Iraq, the Security Council and the Use of Force” (1994) 65 British Yearbook of International Law 135 at 154, 167.Google Scholar

¹⁴ For the summary records of China’s remarks, see UN Doc. S/PV.3858, 1998, at 14. With respect to the fact that China was reported to have the support of two other permanent members, see Goshko, John, “Three on Security Council Oppose ‘Automatic Trigger’ on Iraq,” Washington Post, February 28, 1998, at A20 Google Scholar: “Diplomatic sources said that France, Russia, China and council members belonging to the Non-Aligned Movement, all of which have opposed military strikes, are insisting that any resolution require further council consideration before force is authorized. The sources said these countries are agreeable to warning Iraq of potential consequences but, as of now, refuse to accede to the idea of an automatic trigger.”

¹⁵ See “Annan: U.S. Must Consult before Attacking Iraq,” remarks of the Secretary-General, which can be accessed online at <http://www.cnn.com/WORLD/9803/08/iraq.wrap/index.html> (last visited March 28, 2002) [emphasis added]. The remarks of the Secretary-General were made on ABC News, This Week (ABC television broadcast, March 8, 1998).

¹⁶ Lobel, Jules and Ratner, Michael, “Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime” (1999) 93 American Journal of International Law 124.CrossRefGoogle Scholar

¹⁷ Ibid. at 219.

¹⁸ It is this latter move that some scholars and states attempt to make when they argue that Article 51 of the Charter should be viewed as permissive and not preclusionary in terms of the circumstances that generate a right of self-defence. Article 51 states that self-defence is triggered if “an armed attack occurs.” There are those who make the point that this language should not be read as if it says “if and only if an armed attack occurs.” In this way, these jurists seek to find open space in the customary realm for the law of self-defence to develop as custom.

¹⁹ While being at pains to emphasize custom exists apart from the Charter, the International Court of Justice could, nonetheless, be read as having said some-thing similar in Military Activities in and against Nicaragua Case (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14 at para. 181: “However, so far from having constituted a marked departure from a customary international law which still exists unmodiied, the Charter gave expression in this ield to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law low from a common fundamental principle outlawing the use of force in international relations.”

²⁰ “Decisions of the Security Council on all other [non-procedural] matters shall be made by an affirmative vote of nine members including concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.” Article 27(3) of the Charter, supra note 1.

²¹ Lobel and Ratner, supra note 16 at 135, note 42. See also Constantin Stavro-poulos, “The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, Paragraph 3, of the Charter of the United Nations” (1967) 61 American Journal of International Law 737, notably at the article’s final sentence at 752: “That practice [of voluntary abstentions counting as concurring votes] has been acquiesced in by other Members of the Organization, and can now be considered a irm part of the constitutional law of the United Nations.”

²² “On April 4, 1946, Australia was the first non-permanent member, and on April 9, 1947, the United Kingdom was the first permanent member, not to take part in a vote of the Security Council. This practice, which has been followed by other permanent members of the Security Council, has been used most frequently by the People’s Republic of China.” Simma, Bruno and Brunner, Stefan, “Article 27,” in Bruno Simma, ed., The Charter ofthe United Nations: A Commentary (New York: Oxford University Press, 1994) 433 at 453.Google Scholar

²³ McDougal, Myres and N. Gardner, Richard, “The Veto and the Charter: An Interpretation for Survival?” (1951) 60 Yale LawJournal 258 at 259.CrossRefGoogle Scholar

²⁴ Ibid.

²⁵ Chapter XI consists of two articles, Articles 73 and 74, neither of which use the word “colony” or any derivative.

²⁶ It is only with respect to a special kind of colony called the “trust territory,” which, in effect, were/are colonies of losing powers in both the First and Second World Wars, that the Charter specifically refers to the independence of the peoples of trust territories as a goal, however much it is a hedged goal. The specific mention of independence with respect to this form of territory and its stark absence in relation to the broader category of Chapter XI non-self-governing territories reinforced the textual and background assumptions that the Charter did not intend that colonizing powers be under a duty to de-colonize. See Chapter XII, entitled “International Trusteeship System,” Articles 75-85 and notably Article 76, of the Charter, supra note 1.

²⁷ Declaration on Granting Independence to Colonial Countries and Peoples, UN GA Res. 1514 (XV), December 14, 1960 [colloquially known as the Colonial Declaration].

²⁸ See, for example, Ofuatey-Kodjoe, W. “Chapter Seven: Self-Determination,” in Oscar Schachter and Christopher Joyner, eds., United Nations Legal Order, vol. 2 (New York: Cambridge University Press, 1995) 349 at 350Google Scholar: “Still others have argued that the principle of self-determination has evolved into a legal right by virtue of UN practice. For instance, considering the Declaration on the Granting of Independence to Colonial Countries and Peoples, Rosalyn Higgins arrived at the conclusion that ‘that Declaration, taken together with seventeen years of evolving practice by the United Nations organs, provide ample evidence that there now exists a legal right of self-determination.’”

²⁹ The lack of explicit retroactive endorsement is in considerable contrast to the retroactive response by the Security Council to ECOWAS’s 199o intervention into Liberia. In that context, the Security Council did not go so far as to expressly say that what was an illegal intervention was to be treated as retroactively validated as lawful, but the language of “commend[ing]” the intervention was used. See UN Security Council Resoultion 788 (1992), November 19, 1992, text can be accessed online at <http://www.un.org/documents/sc/res/1992/s92r788e.pdf> (last visited March 28, 2002), in which, in operative paragraph 1, the Security Council “[c]ommends ECOWAS for its efforts to restore peace, security and stability in Liberia.” In addition, in paragraph 4, the Council uses more implicit, but still signiicant, language when it “[c]ondemn[ed] the continuing armed attacks against the peace-keeping forces of ECOWAS in Liberia” [emphasis added]. There is also an indirect form of “support and endorsement,” albeit in the preamble only, when the Council welcomes the Organization of African Unity’s “endorsement and support” of ECOWAS. By such a double reference to a pan-continental regional organization and a sub-regional organization, the Council may well have wanted to signal that the retroactive validation found in paragraph 1 (recall “commends ECOWAS …”) had something to do with the depth of legitimacy created by two regional organizations acting in concert, a signal even more strongly hinted at by another preambular paragraph “[r]ecall-ing the provisions of Chapter VIII [Regional Arrangements] of the Charter.” As Resolution 788 occurred a full two years after the ECOWAS intervention, evidence of ongoing acquiescence by the Security Council during those two years would help bolster an interpretation that paragraph 1 of Resolution 788 amounts to a retroactive validation removing any unlawfulness that might have otherwise attached to the act of intervention. In this respect, the following observations by Christine Gray in “Chapter Six: Regional Arrangements and the United Nations Collective Security System,” in Hazel Fox, ed., The Changing Constitution of the United Nations (London: British Institute of International and Comparative Law, 1997) 91 at io4-5, are of interest: “In this [Liberia/ ECOWAS] instance … it is striking that not much attention was paid in the Security Council even to the question of the legality of the operation under the UN Charter. States in the Security Council debates simply assumed that ECOWAS had legally established peacekeeping forces. The ECOWAS communiqués to the Security Council made no express reference to Chapter VIII but Nigeria spoke of ‘ECOMOG as holding the fort for the UN in accordance with Chapter VIII.’ The USA and China spoke simply of the peacekeeping forces set up by ECOWAS and appeared to assume their legality.”

Some commentators addressing the Kosovo intervention have considered Resolution 788’s treatment of the Liberia situation to be a precedent for the possi-bility of the Security Council sanctioning an intervention after the fact. See, for example, Christopher Greenwood, “International Law and the NATO Interven-tion in Kosovo” (2000) 49 International and Comparative Law Quarterly 926 at 929. This point is fine as far as it goes — and indeed this is an important benchmark against which future Security Council resolutions do indeed need to be interpreted — but the simple fact of a post-intervention Security Council resolution seeking to deal with the results of an intervention does not in itself amount to the support and endorsement of the intervention itself. Absent some-thing explicit along the lines of what the Security Council said about the Liberia context, the Council must be taken only to be dealing with the aftermath of a war in the best fashion that it can, as it would deal with any war, however illegally initiated.

³⁰ The kind of premises to which I refer include understandings about the prima facie legal standards in play, about the facts, about the nature and function of the law, and of the particular decision-making institution called upon to act, about systemic background values that cocoon legal reasoning, about the balance between textual, contextual, and instrumental arguments in one’s approach to interpretation, and so on. For an account of how political and moral discourses can insinuate themselves into the realm of legal rhetoric in the use of force context, see Scott, Craig, “Grenada, Nicaragua and Panama: Tracking Force-for-Democracy Discourse in the 1980s,” in LeBouthillier, Yves, McRae, Donald, and Pharand, Donat, eds., Selected Papers in International Law: Contribution of the Canadian Council of International Law (The Hague, London, Boston: Kluwer Law International, 1999) 169 at 195-200.Google Scholar

³¹ These have been distilled and amalgamated from, inter alia, the accounts in the following articles: Simma, Bruno, “NATO, the UN and the Use of Force: Legal Aspects” (1999) 10 European Journal of International Law 1 CrossRefGoogle Scholar; Brownlie, Ian and Apperley, C. J., “Kosovo Crisis Inquiry: Memorandum on the International Law Aspects” (2000) 49 International and Comparative Law Quarterly 878 and 910CrossRefGoogle Scholar; Chinkin, Christine, “The Legality of NATO's Action in the Former Republic of Yugoslavia (FRY) under International Law” (2000) 49 International and Comparative Law Quarterly 345 CrossRefGoogle Scholar; Greenwood, supra note 29; Lowe, Vaughan, “International Legal Issues Arising in the Kosovo Crisis” (2000) 49 International and Comparative Law Quarterly 358 CrossRefGoogle Scholar; Wedgwood, Ruth, “NATO's Campaign in Yugoslavia” (1999) 93 American Journal of International Law 828 CrossRefGoogle Scholar; Henkin, Louis, “Kosovo and the Law of 'Humanitarian Intervention'” (1999) 93 American Journal of International Law 389 CrossRefGoogle Scholar; Falk, Richard, “Kosovo, World Order, and the Future of International Law” (1999) 93 American Journal of International Law 412 CrossRefGoogle Scholar; and Reisman, Michael, “Kosovo's Antimonies” (1999) 93 American Journal of International Law 425 CrossRefGoogle Scholar; Foreign Affairs Committee, House of Commons, United Kingdom, Fourth Report of the House of Commons Foreign Affairs Committee (June 7, 2000), Doc. HC28-I, text can be accessed online at <http://www.fas.org/man/dod-101/ops/2000/2802/index.html> (last visited March 28, 2002).

³² UN Security Council Resolution 1203 (1998), October 24, 1998 at para. 1, text can be accessed online at <http://www.un.org/Docs/scres/1998/sres1203.htm> (last visited March 28, 2oo2): “Endorses and supports the agreements signed in Belgrade on October 16, 1998 between the Federal Republic of Yugoslavia and the Organization for Security and Cooperation in Europe, and on October 15, 1998 between the Federal Republic of Yugoslavia and NATO, concerning the veriication of compliance by the Federal Republic of Yugoslavia and all others concerned in Kosovo with the requirements of its resolution 1199 (1998), and demands the full and prompt implementation of these agreements by the Federal Republic of Yugoslavia.”

³³ All of that said, Resolution i2o3 does not expressly refer to the means adopted to achieve the agreement with Yugoslavia, so there is still some room to say that the Security Council simply did not address the question of the unlawfulness of any actions by the North Atlantic Treaty Organization [hereinafter NATO] in the lead-up to that October 1998 agreement. As well, some might be inclined to say that the loosening of tolerance for the rule against threatening force in international relations — assuming Resolution i2o3 is an example of that loosening — does not in and of itself mean that the same agreement produced as a result of the actual use of force in the same circumstances would have been welcomed in the same fashion. However much diplomats wish for threats of force to be understood as credible threats, there is a qualitative difference between threatening and actually carrying out military action.

³⁴ It is important to note here that NATO states may have thought that they had Russia's quasi-consent to use force. Tim Judah in his book Kosovo, War and Revenge (New Haven: Yale University Press, 2000) 183-85, describes how the foreign minister of Russia, Igor Ivanov, had said at a meeting with NATO foreign ministers that Russia would veto any resolution brought to the Security Council seeking permission to use force (that is, of the “all necessary means” kind), but that, if the Security Council was avoided entirely, all that Russia would do would be to “make a lot of noise” through a public protest. NATO's legal strategy may have assumed that Russia would not bring the matter to a vote in the way that it actually did and, thus, that there would be no voting record of P-5 opposition. This is all to say that, even as the failed motion by Russia indicates that a majority of the Security Council were opposed to the condemnation of NATO, it simultaneously is an important official record that the intervention did not have the support of two permanent members, China and Russia. It should also be noted in passing that there are several reasons why it was unacceptable for the NATO states to have invested so much meaning — that is, if they sincerely did — in the statements made by Foreign Minister Ivanov on that one occasion; however, elaboration of this point will have to wait until another occasion. See also the discussion in note 40 in this article.

³⁵ In Miller, Judith, “Conflict in the Balkans: The U.N.; The Secretary General Offers Implicit Endorsement of Raids,” New York Times, March 25, 1999,Google Scholar at A13, Secretary-General Anan is quoted as saying: “I deeply regret that, in spite of all the efforts made by the international community, the Yugoslav authorities have persisted in their rejection of a political settlement, which would have halted the bloodshed in Kosovo and secured an equitable peace for the population there. It is indeed tragic that diplomacy has failed, but there are times when the use of force may be legitimate in the pursuit of peace.”

³⁶ Article 53 reads in part: “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” Here, it must of course be noticed that NATO has consistently resisted characterizing itself as a regional organization precisely in order to avoid an overly onerous degree of accountability to the United Nations. To the extent that this is formally the case even if, in substance, NATO is indeed a regional organization, the remaining points to be made with respect to Article 53 should probably be approached more in terms of a close analogy than in terms of a directly applicable argument.

³⁷ Recall the linkage of the ECOWAS/Liberia precedent to regional enforcement, which is dicussed in note 29 in this article. This loosening of the standard for the interpretive importing of authorization into a Security Council resolution, of course, makes most sense where the intervention at issue is into a member state of the regional organization. This was not the case with respect to the NATO intervention, as Yugoslavia was out of area with respect to NATO's mem-bership. Note also the Cuban missile crisis and the arguments relating to implicit authorization used by the United States, which were widely accepted in the Western Hemisphere at that time. See Chayes, Abram, The Cuban Missile Crisis: International Crises and the Role of Law (Oxford: Oxford University Press, 1974)Google Scholar; Smith, Roger K., “The Legality of Coercive Arms Control” (1994) 19 Yale Journal of International Law 455 Google Scholar at 491–93.

³⁸ Security Council Resolution 1244 (1999), June 10, 1999, text can be accessed online at <http://www.un.org/Docs/scres/1999/99sc1244.htm> (last visited March 28, 2002).

³⁹ Falk, supra note 31 at 856.

⁴⁰ Here I would draw attention to the significance of one point made by Axworthy in his April 2001 Tokyo speech, supra note 3, when he revealed that Canada, during the Kosovo crisis, considered various different ways of trying to engage Russia so as to try to secure Russian agreement on a different resolution from one that would simply have authorized NATO states to use “all necessary means” based on NATO’s judgment of necessity. Mention was made of the possibility that an economic forum such as the G-8 might have been an avenue to explore, had the right conditions been in place for such an initiative. In this regard, I would note that it does not take great imagination to conclude that Russia may well have accepted that some intervention could be justiied if it was centred on providing signiicant military support to the on-site Organization for Security and Cooperation in Europe observers on the ground in Kosovo as a result of the Fall 1998 agreement between NATO and Slobodan Milosevic. If Russia also had been content with some arrangement that would have involved itself in the military contingents, it is not at all unlikely that China would have followed its consistent practice of abstaining. In this way, a very different resolution might have gone forward in the Security Council as compared to the sort that Russian Foreign Minister Ivanov warned would be vetoed by Russia if brought before the council — in other words, a resolution that would indeed have authorized the use of force against Yugoslavia's will but in a way far different from the full-blown air campaign that NATO opted for. I have strong views on the failure to have fully pursued what might be called “the Russia option,” but, as with the earlier footnoted discussion of the significance of Ivanov’s role, elaboration of these views will need to be put aside for another occasion; see discussion in note 34 in this article.

⁴¹ Uniting for Peace Resolution, UN GA Res/337A, UNGAOR, 5^th Sess., Supp. No. 2o, at 10, UN Doc. A/1775, 1951.

⁴² Foreign Affairs Committee, supra note 31.

⁴³ Note that, because the Uniting for Peace Resolution foresees only a recommendation of action by the General Assembly, consistent with its powers under Article 1o of the Charter, it is misleading to say the General Assembly authorizes the intervention itself; rather, what it authorizes to binding legal effect are the expenses associated with a military operation that it has recommended come into being. In terms of the observation, this “authorization” is limited to interventions that would otherwise be lawful if states organized themselves outside the auspices of the United Nations. The International Court ofJustice in Certain Expenses ofthe United Nations, [1962] I.C.J. Rep. 151 (Advisory Opinion) determined that inancial levies on UN members to cover UN expenses arising from two peacekeeping operations (one in the Congo and one in the Middle East) were within the General Assembly jurisdiction. However, these missions were within the purview of states to have organized on their own due to the consent of the relevant actors. Similarly, once the Soviet Union returned to the Security Council and began to veto further Council resolutions on the Korean conlict, the General Assembly called on states to aid the UN Supreme Command, but, in this case, the title for intervention was one that states, again, could have invoked without UN authorization, namely, collective self-defence. (It was the Korean conlict that led both to the adoption of the Uniting for Peace Resolution and its first invocation.) This is all to say that, quite apart from the binding force of any Uniting for Peace initiative, the General Assembly has never, to the knowledge of this writer, purported to use the resolution as a way to authorize or order what the Charter assigns as the Security Council’s function: enforcement action that cannot be justified by either self-defence or invitation.

⁴⁴ Hailbronner, Kay and Klein, Ekhart, “Article 10,” in Simma, Bruno, ed., The Charter of the United Nations: A Commentary (Oxford: Oxford, University Press, 1994) 227 Google Scholar, share this view:

From [the reasoning of the ICJ in Certain Expenses ofthe United Nations] … it remains unclear whether recommendations of the GA can also include the adoption of enforcement measures. Consideration of the fundamental division of functions between the SC and the GA, and also the practice of the organization, support the interpretation that the authority of the GA is only limited … when the GA is of the opinion that binding enforcement measures according to Chapter VII of the Charter, for which the SC alone is responsible, are to be decided upon.

There is a decisive difference between the recommendation of enforcement actions, and the actual taking of such measures. This is illustrated by the formal deinition of the term “enforcement,” according to which the existence of an “enforcement action” is not determined by the character of the action itself but by the binding nature of the measure taken. Therefore a non-binding recommendation is not to be considered “action,” so that the GA is not prevented … from recommending coercive measures. This norm only recalls the fact that the GA shall not take any enforcement measures binding on all member states (at 233).

Such valid recommendations of “coercive measures” would function in effect as recommendations to the Security Council because states would not be able to invoke General Assembly authority as a ground of lawfulness should they act on the General Assembly’s recommendation. To the extent that the General Assembly recommends intervention to states outside the self-defence and consent bases for intervention, then it is recommending unlawful conduct. Any subsequent levies to pay for UN expenses related to unlawful uses of force would have to be seen as ultra vires the General Assembly.

⁴⁵ Foreign Affairs Committee, supra note 31 at para. 128 [emphasis added].

⁴⁶ Ibid. It is, of course, not surprising, given the United Kingdom’s position in the Kosovo crisis, that this Foreign and Commonwealth Ofice oficial would have taken this position.

⁴⁷ Axworthy, supra note 3.

⁴⁸ It would be evident to scholars of UN law that such a declaration would probably also need to reorient the balance of powers between the General Assembly and the Security Council beyond that endorsed in the Certain Expenses of the United Nations judgment of the ICJ, supra note 43, to the relatively limited extent of allowing the General Assembly to consider crises that are under active consideration by the Security Council while they are under such consideration. This is why I have taken care to indicate that the General Assembly would be in an informal session.

⁴⁹ Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, September 18, 1997, Conference on Disarmament CD/1478, text can be accessed online at <www.mines.gc.ca/VII_AA_I-en.asp> (date accessed: September 2, 2002).

⁵⁰ Statute of the International Criminal Court, July 17, 1998, UN Doc. A/Conf. 183/9, text can be accessed online at <www.un.org/law/icc/statute/romefra.htm> (date accessed: September 2, 2002).