DID THE SECURITY COUNCIL'S RECENT IRAQ RESOLUTION VIOLATE THE U.N. CHARTER BY AUTHORIZING UNILATERAL FORCE?
And If So, What Are the Consequences?

By GEORGE P. FLETCHER
Wednesday, Nov. 13, 2002

On November 8, the U.N. Security Council voted 15-0 vote in favor of Resolution 1441, which concerns Iraq. Through its passage of the Resolution, the Security Council indirectly supported the U.S.'s threat to go to war against Saddam Hussein.

Some parts of the Resolution are unobjectionable. But others may violate the U.N. charter, and thus violate international law. If they do, what are the consequences?

Security Council Resolutions May Be Binding, But Nevertheless Illegal

It is important, to begin, to separate the question whether the Resolution is binding from the question whether it violates international law. The resolutions of the Security Council are implicitly binding on the member states of the United Nations - and thus so is Resolution 1441.

But the question remains: Is Resolution 1441 legitimate, and consistent with international law?

To see why the two questions are separate, consider a hypothetical court injunction against conducting a parade. The injunction, until and unless it is overrruled or stayed, is binding on the parade commissioner; he violates it at his peril. Yet it may also violate the First Amendment - as a later, higher court may subsequently pronounce.

Similarly, under Article 40 of the Charter, the Security Council can call on member states to comply with provisional measures "without prejudice to the rights, claims, or position of the parties concerned." Put another way, member states can be forced to comply with even those U.N. decisions they believe to be illegal under international law - but if they do comply, they do not give up their right to protest the decision.

Which Parts of Resolution 1441 Are Legal, and Which May Be Illegal

That's all fine. But a legal problem will arise if, for instance, Saddam Hussein makes what appears to be only partial disclosure of his WMD capability. The Resolution says that "false statements or omissions" will constitute a material breach of the Resolution (augmenting the finding that Iraq is in material breach of prior resolutions), and have "serious consequences." And everyone understands that the "serious consequences" would mean the use of military force to restore "international peace and security."

But who decides whether Iraq is in breach? And who decides if the use of military force under these circumstances is legal? There's the rub - and there may be the illegality.

The Import of the Special Chinese/French/Russian Proviso

Three of the fifteen states voting - China, France, and Russia - added a special proviso to the Resolution, stating that they do not understand it to authorize "automaticity in the use of force." Put another way, they do not believe the Resolution authorizes the U.S. and the U.K. to make an independent judgment that Saddam Hussein is in violation, and then use the Resolution as a warrant for going to war.

What force does this separate proviso have? The three states who wrote it expressly rely on declarations made by representatives of the U.S. and U.K. But these declarations are, if anything, incorporated into the Proviso - not the Resolution - and the Proviso was only joined by 3 of 15 Security Council members. Ten other states declined to join. As a result, one might conclude the Proviso has only the force of a concurring judicial opinion - expressing the reasoning of the three signatories, but not of anyone else, necessarily.

Indeed, one might read the other 10 states' decision not to join the Proviso as meaning that they believe the Resolution does in fact implicitly authorize "automaticity in the use of force." That is, we might think that, in the view of the 10, at least, the United States and its single ally, the United Kingdom, do indeed have the power, under the Resolution, to make a unilateral judgment that a material breach has occurred and impose "serious consequences" - namely, military force.

The Possible Illegality of the Resolution If Construed to Authorize the Use of Force

There are several problems with this. First, China, France, and Russia, as permanent members of the Security Council, have veto power over any use of force. They seem to be using this veto power through the Proviso - which makes clear that they do not read the Resolution to authorize the use of force, and are voting for it on that basis. Yet the Resolution, as read by the other 10 Security Council members, seems to take away this veto power by delegating to the two remaining permanent members - the U.S. and the U.K. - the right to decide whether to use force against Iraq.

One way to resolve this problem might be to adopt the narrower reading of the Resolution, which the Proviso offers. Like a concurring judicial opinion that is narrower than the opinion it augments, and necessary to establish a majority, the Proviso arguably operates to limit the scope of the Resolution. If three members do not believe they authorized force, and each of the three has veto power over such authorization, it is hard to contend that force has actually been authorized. In short, the 10 are wrong to view the Resolution as authorizing force.

Is a U.N. Resolution a Legislative Act, A Judicial Act, Or a Mix of the Two?

That leads to an interesting final question: Is a U.N. Security Council Resolution, or Proviso, like a judicial opinion in the first place? The Council itself has the qualities of both a legislative and a judicial body.

Like a judicial body, the Security Council is governed by a document: the Charter. But in reality, the Charter's principles are mostly too vague to provide much legal restraint, so that the Council operates quite freely, like a legislature.

Like a judicial body, it must make findings of fact, such as the finding that Iraq is in "material breach" of prior resolutions. Yet it has no trial-like mechanism for making these findings - all it can do, like a legislature, is hear submissions from its members.

The United Nations is torn, therefore, between some tight substantive principles, such as those on the use of force, and its loose procedural forms. Its principles, in theory at least, prohibit preventive or "preemptive" war by one nation against another. But its procedures permit the Security Council to enact policies like those expressed in Resolution 1441.

The result is a body of law that - ironically and disturbingly - is subject to violation by its own organs of interpretation and application. By comparison, it is as if U.S. court orders routinely themselves violated the Constitution.

It is no great surprise, then, a particular Resolution, such as this month's on Iraq, might violate the U.N. Charter, and yet have been enacted by the Security Council all the same. It may make one wish that like the U.S. government, the U.N. had, since its inception, always included a judicial branch.


George P. Fletcher is Cardozo Professor of Jurisprudence at the Columbia Law School and the author, most recently, of Romantics at War: Glory and Guilt in the Age of Terrorism.

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