Agreeing to disagree: Security Council Resolution 1441 and intentional ambiguity

Global Governance

Volumn 10, Issue 2, 2004, Pages 165-186

  Byers, Michael ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 2942722784     PISSN: 10752846     EISSN: None     Source Type: Journal    
DOI: 10.1163/19426720-01002004     Document Type: Review

References (76)

1. See, for example, Jeffrey Fleishman, "World Sees Unanimous U.N. Vote as Triumph of Diplomacy," Los Angeles Times, 10 November 2002, p. 19.
2. SC Res. 1441, UN Doc. S/Res/1441 (8 November 2002), available on-line at http://www.un.org/documents/scres.htm (accessed 3 November 2003).
3. James Traub, "The Next Resolution," New York Times, 13 April 2003, sec. 6, p. 50. For an extreme view, see Michael J. Glennon, "Why the Security Council Failed," Foreign Affairs 82, no. 3 (May-June 2003): 16.
4. James Traub, "The Next Resolution," New York Times, 13 April 2003, sec. 6, p. 50. For an extreme view, see Michael J. Glennon, "Why the Security Council Failed," Foreign Affairs 82, no. 3 (May-June 2003): 16.
5. Richard Bilder, "The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs," American Journal of International Law 56 (1962): 654. For an extensive discussion, see Guy de Lacharrière, La politique juridique extérieure (Paris: Economica, 1983), pp. 89-103.
6. Richard Bilder, "The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs," American Journal of International Law 56 (1962): 654. For an extensive discussion, see Guy de Lacharrière, La politique juridique extérieure (Paris: Economica, 1983), pp. 89-103.
7. Fourteenth session of the Council on Trade and Development, 20 August 1974, Doc. TD/B (XIV)/Misc. 8. (My translation: "The solution to the problem of compensation may consist in a formula which preserves the position which both parties have supported for almost a century, that is to say, which is expressed in sufficiently general and abstract terms [I am tempted to say deliberately ambiguous] to encompass the respective positions without changing anything there and without settling anything.")
8. See Francis Boyle, "International Law in Time of Crisis: From the Entebbe Raid to the Hostages Convention," Northwestern University Law Review 75 (1980): 831-835.
9. International Convention Against the Taking of Hostages, UNGA Res. 34/ 146 (17 December 1979), reproduced in American Journal of International Law 74 (1980): 277.
10. Boyle, "International Law in Time of Crisis," p. 835.
11. Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, available online at http://www.wto.org/english/docs_e/legal_e/27-trips. pdf (accessed 3 November 2003).
12. Richard Bilder, Managing the Risks of International Agreement (Madison: University of Wisconsin Press, 1981), p. 39.
13. See John McHugo, "Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians," International and Comparative Law Quarterly 51 (2002): 815; Shabtai Rosenne, "On Multi-Lingual Interpretation," Israel Law Review 6 (1971): 360.
14. See John McHugo, "Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians," International and Comparative Law Quarterly 51 (2002): 815; Shabtai Rosenne, "On Multi-Lingual Interpretation," Israel Law Review 6 (1971): 360.
15. De Lacharrière, La politique juridique extérieure, p. 92. (My translation: "As it happens, certain delegations indicated that they were prepared to accept the text only in one of the two versions, the French version for some, the English for others. The ambiguity thus appeared as a condition for the adoption of the resolution, the divergence of views being otherwise insurmountable. The ambiguity, introduced and maintained at the strong insistence of Israel, can be considered as having been, for that state, a means for limiting its defeat.") Rosenne, ibid., takes the view that any ambiguity was unintentional.
16. De Lacharrière, La politique juridique extérieure, p. 92. (My translation: "As it happens, certain delegations indicated that they were prepared to accept the text only in one of the two versions, the French version for some, the English for others. The ambiguity thus appeared as a condition for the adoption of the resolution, the divergence of views being otherwise insurmountable. The ambiguity, introduced and maintained at the strong insistence of Israel, can be considered as having been, for that state, a means for limiting its defeat.") Rosenne, ibid., takes the view that any ambiguity was unintentional.
17. Dietrich Rauschning et al., eds., Key Resolutions of the United Nations General Assembly 1946-1996 (Cambridge: Cambridge University Press, 1997), p. 195.
18. For a similar analysis, see Jane E. Stromseth, "Law and Force After Iraq: A Transitional Moment," American Journal of International Law 97 (2003): 629-631.
19. "Statement by the Attorney General, Lord Goldsmith, in Answer to a Parliamentary Question, Tuesday, 18 March 2003," available online at http://www.fco.gov.uk/servlet/Front=pagename=OpenMarket/Xcelerate/ShowPage &c=Page&cid=1007029394383&a=KArticle&aid=1047661460790 (accessed 3 November 2003); Times (London), 18 March 2003, p. 2.
20. For an early expression of the U.S. understanding of the application of "material breach" to Resolution 687, see Michael Matheson, "Legal Authority for the Possible Use of Force Against Iraq," American Society of International Law Proceedings 92 (1998): 141.
21. "Iraq: Legal Basis for the Use of Force," annex to "Statement by the Attorney General, Lord Goldsmith," par. 11.
22. UN Doc. S/PV.4644.
23. The concept of material breach is borrowed from the law of treaties. See Art. 60, Vienna Convention on the Law of Treaties, 1155 United Nations Treaty Series 331, International Legal Materials 8 (1969): 679, available online at http://untreaty.un.org/ (accessed 3 November 2003).
24. For a developed set of arguments against the existence of authorization, see Sean D. Murphy, "Assessing the Legality of Invading Iraq," Georgetown Law Journal 92 (forthcoming, 2004).
25. Gerard Baker et al., "Blair's Mission Impossible: The Doomed Effort to Win a Second UN Resolution," Financial Times, 29 May 2003, p. 17.
26. I b i d.
27. James P. Rubin, "Stumbling into War," Foreign Affairs 82, no. 5 (September 2003): 54. Confirmation of these reports may be found in a speech made by the ambassador on 25 March 2003: Jean-David Levitte, "France, Germany and the U.S.: Putting the Pieces Back Together, Address at the Council on Foreign Relations," available online at http://www.cfr.org/publication.php?id=5774 (accessed 3 November 2003).
28. James P. Rubin, "Stumbling into War," Foreign Affairs 82, no. 5 (September 2003): 54. Confirmation of these reports may be found in a speech made by the ambassador on 25 March 2003: Jean-David Levitte, "France, Germany and the U.S.: Putting the Pieces Back Together, Address at the Council on Foreign Relations," available online at http://www.cfr.org/publication.php?id=5774 (accessed 3 November 2003).
29. Jean Eaglesham, "Bush Impedes Backing for War," Financial Times, 14 November 2002, p. 2 (reporting polling results that indicated 32 percent of the British population considered Bush a greater threat to world peace than Saddam Hussein and that 46 percent agreed with a characterization of Blair as "Bush's lapdog").
30. Warren Hoge, "Blair Denies Misleading M.P.'s, Saying 'We Did the Right Thing,'" New York Times, 9 July 2003, p. A10.
31. Leaked drafts of the proposed "second" resolution indicated that it too would not have included an explicit authorization of the use of force. See "U.S.-British Draft Resolution Stating Position on Iraq," New York Times, 25 February 2003, p. A14. However, Blair succeeded in convincing the British press that what mattered most was the adoption of any second resolution and not its actual terms. See generally Baker et al., "Blair's Mission Impossible."
32. Leaked drafts of the proposed "second" resolution indicated that it too would not have included an explicit authorization of the use of force. See "U.S.-British Draft Resolution Stating Position on Iraq," New York Times, 25 February 2003, p. A14. However, Blair succeeded in convincing the British press that what mattered most was the adoption of any second resolution and not its actual terms. See generally Baker et al., "Blair's Mission Impossible."
33. In a YouGov poll conducted 14-16 March 2003, 76 percent responded positively to the following question: "If the United Nations Security Council decides to launch military action against Iraq, should Britain contribute troops to such an action?" But only 32 percent responded positively to the following question: "If a majority on the Security Council does NOT back the use of force against Iraq, and the United States launches such an action, should Britain contribute troops to the US-led action?" YouGov Survey Results, "A Possible War in Iraq, Prepared for Jonathan Dimbleby - Showdown in Iraq," 17 March 2003, available online at http://www.yougov.com/ (accessed 3 November 2003).
34. In a New York Times/CBS poll conducted 3-5 October 2002, 63 percent responded "wait for inspectors" when presented with the following question: "Should the U.S. take military action against Iraq fairly soon or wait and give the U.N. more time to get weapons inspectors into Iraq?" Only 30 percent of those questioned responded "take action." See Adam Nagourney and Janet Elder, "Public Says Bush Needs to Pay Heed to Weak Economy," New York Times, 7 October 2002, p. A1.
35. Krishna Guha and James Harding, "UK Ready to Ignore UN Veto on Iraq and Join US-Led War," Financial Times, 7 March 2003, p. 3.
36. Stephen Robinson, "Prime Minister Is America's Star of Breakfast TV," Daily Telegraph, 27 March 2003, p. 9.
37. Patrick E. Tyler, "A New Power in the Streets," New York Times, 17 February 2003, p. A1.
38. James Harding, "US President Telephones World Leaders for a Fourth Day in Succession in Battle to Get a Second UN Vote," Financial Times, 14 March 2003, p. 2 (citing research from the National Journal showing that 77 percent of Americans said, "We absolutely need to have British support in the event of war in Iraq").
39. William Boston, "Europe Shifts to Post-War Focus," Christian Science Monitor, 20 March 2003, p. 3.
40. Francis Fukuyama, "End of the Postwar Alliance Pact," Yomiuri Shimbun, 16 March 2003, p. 8.
41. Remarks by President George W. Bush at the 2002 graduation exercises of the United States Military Academy, West Point, New York, 1 June 2002, available online at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html (accessed 3 November 2003).
42. National Security Strategy of the United States, 20 September 2002, available online at http://www.whitehouse.gov/nsc/nss.pdf (accessed 3 November 2003).
43. President's remarks at the United Nations General Assembly, 12 September 2002, available online at www.whitehouse.gov/news/releases/2002/09/20020912-l.html (accessed 3 November 2003).
44. Michael Byers, "Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change," Journal of Political Philosophy 11 (2003): 171-190; "Adoption of Policy of Pre-emption Could Result in Proliferation of Unilateral, Lawless Use of Force, Secretary-General Tells General Assembly," UN press release SG/SM/8891, 23 September 2003, available online at http://www.un.org/News/Press/docs/2003/sgsm8891.doc.htm (accessed 3 November 2003).
45. Chris Buckley, "China Tiptoes Between Opposing the War and Not Angering U.S.," International Herald Tribune, 25 March 2003, p. 4.
46. Nicholas Blanford, "Shrewd Syrians Still Sitting on the Fence, " Times (London), 29 November 2002, p. 18.
47. Hersch Lauterpacht, "Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order," in Symbolae Verzijl: Présentées au professeur J.H.W. Verzijl à l'occasion de son LXXX-ième anniversaire (The Hague: Martinus Nijhoff, 1958), p. 196. It is widely accepted that the principle does not apply to "advisory opinions" rendered by the International Court of Justice, on one view because there the Court has not been charged with settling a particular legal dispute. See Prosper Weil, '"The Court Cannot Conclude Definitively ..." Non Liquet Revisted," Columbia Journal of Transnational Law 36 (1997): 109.
48. Hersch Lauterpacht, "Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order," in Symbolae Verzijl: Présentées au professeur J.H.W. Verzijl à l'occasion de son LXXX-ième anniversaire (The Hague: Martinus Nijhoff, 1958), p. 196. It is widely accepted that the principle does not apply to "advisory opinions" rendered by the International Court of Justice, on one view because there the Court has not been charged with settling a particular legal dispute. See Prosper Weil, '"The Court Cannot Conclude Definitively ..." Non Liquet Revisted," Columbia Journal of Transnational Law 36 (1997): 109.
49. Art. 38(1), Statute of the International Court of Justice, available online at http://www.icj-cij.org (accessed 3 November 2003).
50. Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002), pp. 5-9.
51. Vaughan Lowe, "The Politics of Law-Making: Are the Method and Character of Norm Creation Changing," in Michael Byers, ed., The Role of Law in International Politics (Oxford: Oxford University Press, 2000), p. 207.
52. Michael Byers, "Review of Thomas Franck, Recourse to Force: State Action Against Threats and Armed Attacks" (Cambridge: Cambridge University Press, 2002); American Journal of International Law 97 (2003): 721.
53. Michael Byers, "Review of Thomas Franck, Recourse to Force: State Action Against Threats and Armed Attacks" (Cambridge: Cambridge University Press, 2002); American Journal of International Law 97 (2003): 721.
54. UN Conference on the Law of Treaties, Official Records (1st sess., 1969), pp. 167-168.
55. Art. 60, Vienna Convention on the Law of Treaties, 1155 United Nations Treaty Series 331. On the reaction of other states, see also Official Records, ibid., pp. 168-185.
56. Art. 60, Vienna Convention on the Law of Treaties, 1155 United Nations Treaty Series 331. On the reaction of other states, see also Official Records, ibid., pp. 168-185.
57. I b i d.
58. James P. Rubin, "Countdown to a Very Personal War," Financial Times, 30 September 2000, p. 9.
59. ICJ Reports (1971), p. 53.
60. Michael C. Wood, "The Interpretation of Security Council Resolutions," Max Planck Yearbook of United Nations Law 2 (1998): 95.
61. Jochen Abr. Frowein, "Unilateral Interpretation of Security Council Resolutions - a Threat to Collective Security?" in Volkmar Götz, Peter Selmer, and Rüdiger Wolfrum, eds., Liber amicorum Günther Jaenicke - Zum 85. Geburtstag (Berlin: Springer, 1998), p. 99 (footnote omitted).
62. Ibid., p. 112 (footnote omitted).
63. See, Lotus Case (1927) PCIJ Reports, Ser. A, No. 9, p. 18. For the more specific rule, Frowein cites Territorial Jurisdiction of the International Commission of the River Oder (1929) PCIJ Reports, Ser. A, No. 23, p. 26.
64. See, Lotus Case (1927) PCIJ Reports, Ser. A, No. 9, p. 18. For the more specific rule, Frowein cites Territorial Jurisdiction of the International Commission of the River Oder (1929) PCIJ Reports, Ser. A, No. 23, p. 26.
65. See Jules Lobel and Michael Ratner, "Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime," American Journal of International Law 93 (1999): 125-130.
66. Sir Arthur Watts, "The Importance of International Law," in Michael Byers, ed., The Role of Law in International Politics (Oxford: Oxford University Press, 2000), p. 8.
67. See, for example, Independent International Commission on Kosovo, Kosovo Report (Oxford: Oxford University Press, 2000), available online at http://www.reliefweb.int/library/documents/thekosovoreport.htm (accessed 3 November 2003); Foreign Affairs Committee (UK), Fourth Report - Kosovo (23 May 2000), pars. 137-138, available online at http://www.fas.org (accessed 3 November 2003).
68. See, for example, Independent International Commission on Kosovo, Kosovo Report (Oxford: Oxford University Press, 2000), available online at http://www.reliefweb.int/library/documents/thekosovoreport.htm (accessed 3 November 2003); Foreign Affairs Committee (UK), Fourth Report - Kosovo (23 May 2000), pars. 137-138, available online at http://www.fas.org (accessed 3 November 2003).
69. For a similar argument, see Nico Krisch, "More Equal Than the Rest? Hierarchy, Equality and U.S. Predominance in International Law," in Michael Byers and Georg Nolte, eds., United States Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press, 2003), pp. 147-149.
70. See Arts. 53, 64, Vienna Convention on the Law of Treaties, supra, note 19.
71. For representative literature, see Judith Goldstein, Miles Kahler, Robert Keohane, and Anne-Marie Slaughter, eds., special issue, Legalization and World Politics, International Organization 54, no. 3 (2000); Anne-Marie Slaughter, "International Law and International Relations," Recueil des cours 285 (2001):1; Byers, The Role of Law in International Politics; Jutta Brunnée and Stephen Toope, "International Law and Constructivism: Elements of an Interactional Theory of International Law," Columbia Journal of Transnational Law 39 (2000): 19.
72. For representative literature, see Judith Goldstein, Miles Kahler, Robert Keohane, and Anne-Marie Slaughter, eds., special issue, Legalization and World Politics, International Organization 54, no. 3 (2000); Anne-Marie Slaughter, "International Law and International Relations," Recueil des cours 285 (2001):1; Byers, The Role of Law in International Politics; Jutta Brunnée and Stephen Toope, "International Law and Constructivism: Elements of an Interactional Theory of International Law," Columbia Journal of Transnational Law 39 (2000): 19.
73. For representative literature, see Judith Goldstein, Miles Kahler, Robert Keohane, and Anne-Marie Slaughter, eds., special issue, Legalization and World Politics, International Organization 54, no. 3 (2000); Anne-Marie Slaughter, "International Law and International Relations," Recueil des cours 285 (2001):1; Byers, The Role of Law in International Politics; Jutta Brunnée and Stephen Toope, "International Law and Constructivism: Elements of an Interactional Theory of International Law," Columbia Journal of Transnational Law 39 (2000): 19.
74. For representative literature, see Judith Goldstein, Miles Kahler, Robert Keohane, and Anne-Marie Slaughter, eds., special issue, Legalization and World Politics, International Organization 54, no. 3 (2000); Anne-Marie Slaughter, "International Law and International Relations," Recueil des cours 285 (2001):1; Byers, The Role of Law in International Politics; Jutta Brunnée and Stephen Toope, "International Law and Constructivism: Elements of an Interactional Theory of International Law," Columbia Journal of Transnational Law 39 (2000): 19.
75. SC Res. 1483, UN Doc. S/Res/1483 (22 May 2003), available online at http://www.un.org/documents/scres.htm (accessed 3 November 2003).
76. SC Res. 1511, UN Doc. S/Res/1511 (16 October 2003), available online at http://www.un.org/documents/scres.htm (accessed 3 November 2003).