Interpretation of security council resolutions under chapter VII in the aftermath of the Iraqi crisis

International and Comparative Law Quarterly

Volumn 56, Issue 1, 2007, Pages 83-118

  Papastavridis, Efthymios ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33846045294     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/lei151     Document Type: Article

References (242)

1. Legal interpretation is part of the science of hermeneutics, whose historical roots date back to great thinkers such as Maimonides and Spinoza and has developed mostly around the interpretation of literary and historical texts. The literature on hermeneutics is extensive. See, inter alia, G Bruns, Hermeneutics Ancient and Modern (Yale University Press, Yale, 1992)
2. G Shapiro and A Sica (eds), Hermeneutics: Questions and Prospects (University of Massachusetts Press, Amherst, 1994)
3. J Bleicher, Contemporary Hermeneutics: Hermeneutics as Method, Philosophy and Critique (Routledge, London, 1980). Modern hermeneutics has developed with the theories of Schleiermacher and Betti (theoretical hermeneutics), Heidegger and Gadamer (philosophical hermeneutics), Habermas and Hirsch (critical hermeneutics), Ricoeur (phenomenological hermeneutics), Baratta and Lévi-Strauss (structural hermeneutics) and Derrida (deconstruction).
4. General hermeneutic theories are relevant to legal interpretation, since they create a number of options among which the interpreter must choose, at his or her discretion, but not without restriction. Nonetheless, legal hermeneutics are distinctive, because of the nature of law and rules of legal interpretation should not give the reader the freedom to understand the text according to his or her subjective perception; see: R Posner, Law and Literature (rev edn, Harvard University Press, Cambridge, Mass, 1998) 211
5. and A Barak (n 69) 58.
6. There is arguably a basic dichotomy in the literature around treaty interpretation arising from a choice between conflicting political objectives. On the one hand, there is the 'conventional' or mechanical approach to the enterprise of interpretation, based on firm canons of interpretation, which is supposed to resolve the interpretive issue with minimum human intervention between the text and its operational content. The actual text and its grammatical hermeneutics, ie its natural and ordinary meaning, have primacy over all other interpretive principles. Apart from the above approach, which can also be designated as the 'objective school', there are those who assert that the aim is to ascertain the intention of the parties ('the subjective school') and secondly, there are those who think that the interpreter must first ascertain the object and purpose of the treaty and then give effect to that ('teleological school'). For all these schools see inter alia: CF Amerasinghe, 'Interpretation of Texts in Open International Organisations' (1994) 65 British Yearbook of International Law 188
7. and G Fitzmaurice, 'Treaty Interpretation and Certain Other Treaty Points' (1951) 28 British Yearbook of International Law 1 et seq.
8. On the other hand, there is a varied group of authors, advocates par excellence of legal realism, maintaining that in the framework of treaty interpretation, more than in any other areas of the law, the end may determine the means adopted and policies may govern the procedure followed; see inter alia: J Stone, 'Fictional Elements in Treaty Interpretation-A Study in the International Judicial Process' (1954) 1 Sydney Law Review 334.
9. Another source of criticism of the predominant textualism stems from the New Haven Approach, which discards sheer textualism and instead lays emphasis on 'contextualism'; see: M McDougal, H Lasswell, and J Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure (Yale University Press, New Haven, 1967)
10. and RA Falk, 'On Treaty Interpretation and the New Haven Approach: Achievements and Prospects' (1968) 8 Virginia Journal of International Law 332.
11. As Justice Oliver Wendell Holmes famously observed a century ago, the hard cases are frequently the great ones and '[g]reat cases like hard cases make bad law', see Nothern Sec Co v US, 193 US, 197, 400 (1904).
12. LF Damrosch and BH Oxman avered in the Editor's Introduction in the Agora of the American Journal of International Law dedicated to Iraq conflict that: '[t]he military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century', see 'Editors' Introduction' (2003) 97 American Journal of International Law 553.
13. SC Res 687 (3 Apr 1991) in [1991] 30 ILM 846.
14. SC Res 1441 (8 Nov 2002) in [2003] 42 ILM 250.
15. For scholarly commentary see inter alia: C Gray, International Law and the Use of Force (2nd edn, OUP, Oxford, 2004) 271 et seq,
16. FL Kirgis, 'Security Council Resolution 1441 on Iraq's Final Opportunity to Comply with Disarmament Obligations' (Nov 2002) in ASIL Insights available at
17. P McLain, 'Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force' (2003) 13 Duke Journal of Comparative and International Law 233-91.
18. It is true that Operation Iraqi Freedom had possessed the right factual matrices associated with claims of preemptive self-defence: No armed attack had been launched by Iraq against the United States; Iraq had fired no shot against the United States before the operation in question and so forth. For the National Security Strategy see 'The National Security Strategy of the United States of America' (17 Sept 2002), available at ,
19. reprinted in [2002] 41 ILM 1478
20. and with regard to Bush Doctrine on Pre-emptive Self-Defence, see inter alia: Per AD Sofaer, 'On the Necessity of Pre-emption' (2003) 14 European Journal of International Law 19 et seq.
21. Contra M Bothe, 'Terrorism and the Legality of Pre-emptive Force' (2003) 14 European Journal of International Law 19 et seq;
22. R Kolb, 'Self-Defence and Preventive War at the Beginning of Millenium' (2004) 59 Zeitschrift für öffentliches Recht 111 et seq.
23. UN Doc S/2003/351 (21 Mar 2003) 1. See also the views of the US Legal Adviser and Deputy Legal Adviser published in WH Taft IV and TF Buchwald, 'Preemption, Iraq and International Law, Agora: Future Implications of the Iraq Conflict' (2003) 97 American Journal of International Law 557-63.
24. UN Doc S/2003/350 (21 Mar 2003). See also 'Attorney-General Clarifies Legal Basis for the Use of Force against Iraq', available at (18 Mar 2003)
25. and Foreign and Commonwealth Office, 'Iraq: Legal Basis for the Use of Force' (17 Mar 2003),
26. reproduced by C Warbrick, 'The Use of Force against Iraq' (2003) 52 International & Comparative Law Quarterly 811-14.
27. The highly controversial and slightly different 'Attorney General's Advice on the Iraq War: Resolution 1441' (7 Mar 2003) is published in [2005] 54 International and Comparative Law Quarterly 767-78.
28. Australia, also, followed the same line of reasoning in its communication to the Security Council, see UN Doc S/2003/352 (20 Mar 2003) and 'Attorney-General's Memorandum of Advice on the Use of Force against Iraq' (18 Mar 2003) in [2005] 24 Australian Journal of International Law 413-18.
29. See Arts 31-3 of Vienna Convention on the Law of Treaties (1969) (opened for signature 23 May 1969), 1155 UNTS 331 [hereinafter referred to as VCLT]. According to Art 31 of VCLT, apart from the bona fides obligation, which permeates the whole fabric of VCLT, the primary rule of natural meaning is to be applied in the light of the context, the object and purposes of the treaty and the six other considerations set out in the ensuing paragraphs of the said Article, which implies that an abstract natural meaning may be modified by any of these. Noteworthy is that the intention of the parties as such as well as the travaux préparatoires, which reveal the latter are diminished significantly under the scheme of VCLT (Art 32)
30. see inter alia: M Fitzmaurice, 'The Practical Working of the Law of Treaties' in M Evans (ed), International Law (2nd edn, OUP, Oxford, 2006) 187 et seq.
31. In para 3 of Art 60 of VCLT, the 'material breach' is defined as: '(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.' Regarding Art 60 of VCLT and the principle of exceptio non (rite) adimpleti contractus, see inter alia: B Simma, 'Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law' (1970) 20 Österreichisches Zeitschrift für Öffentliches Recht 18
32. MM Gomma, Suspension or Termination of Treaties on Grounds of Breach (Martinus Nijhoff, The Hague, 1996).
33. As regards the Security Council, it is well attested that it has the power under the Charter to adopt three types of Resolutions. First, internal recommendations or decisions, eg recommendations to the General Assembly or decisions regarding the establishment of subsidiary organs under Art 29 of the Charter; secondly, recommendations to the Member States (eg Art 40) and last but not least, decisions for the Member States (eg Arts 41-2). Moreover, it would be apposite to add also the sui generis institution of authorization-delegation by the Security Council of enforcement powers under Chapter VII to Member States (eg SC Resolution 678/1990) as well as the generic or legislative Resolutions, which impose general and abstract obligations on Member States (eg 1373/ 2001), 1540/2004). See inter alia: SD Bailey and S Daws, The Procedure of the United Nations Security Council (3rd edn, Clarendon Press, Oxford, 1998) 18-20
34. B Conforti, The Law and Practice of the United Nations (3rd edn, Kluwer Law International, The Hague, 2005) 291 et seq;
35. S Talmon, 'The Security Council as World Legislature' (2005) 99 American Journal of International Law 175
36. E Rosand, 'The Security Council as Global Legislator: Ultra Vires or Ultra Innovative?' (2005) 28 Fordham International Law Journal 542-90.
37. See H Thirlway, 'The Law and Procedure of the International Court of Justice' (1969) 67 British Yearbook of International Law 29 et seq.
38. See the general provision of Art 34 of VCLT (1969) regarding third States: [a] treaty does not create either obligations or rights for a third State without its consent.'
39. See M Wood, 'The Interpretation of Security Council Resolutions' (1998) 2 Max Planck Yearbook of United Nations Law 73-95
40. A Frowein, 'Unilateral Interpretations of Security Council Resolutions: a Threat to Collective Security' in V Götz, P Selmer, and R Wolfrum (eds), Liber Amicorum Günter Jaenicke-zum 85. Geburstag (Springer, Berlin, 1998) 97-112
41. CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP, Cambridge, 2005) 61 et seq;
42. Bos, 'The Interpretation of Decisions of International Organisations' (1981) 28 Netherlands International Law Review 1-13
43. Byers, 'The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq' (2002) 13 European Journal of International Law 21-41, 23 et seq.
44. In response to the refusal of Iraq to cooperate with the inspectors of UNSCOM and IAEA, United States, United Kingdom and France launched a limited air and missile campaign against Iraq, see [1993] 39 Keesings 39231 and 'UK Materials on International Law' (1993) 65 British Yearbook of International Law 736.
45. See from the vast amount of literature in this regard, inter alia: J Lobel and M Ratner, 'Bypassing the Security Council: Ambiguous Authorizations to Use Force, Ceasefires and the Iraqi Inspection Regime' (1999) 93 American Journal of International Law 124 et seq;
46. JM Thouvenin, 'Le jour le plus triste pour les Nations Unies-Les Frappes anglo-américaines de décembre sur l'Iraq' (1998) 44 Annuaire Français de Droit International 209-31
47. Wedgwood, 'The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destructions' (1998) 92 American Journal of International Law 724-8.
48. For the operations in 1993 and 1998 see ibid.
49. As regards Operation Iraqi Freedom, the preponderant view is that it was beyond the bounds of international law. From the plethora of relevant scholarly opinions see inter alia, per the legality of the war: WH Taft IV and TF Buchwald (n 9) 557 et seq;
50. Greenwood, 'International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq' (2003) 4 San Diego International Law Journal 7 et seq;
51. and contra: ND White and EPJ Myjer, 'Editorial: Use of Force against Iraq' (2003) 8 Journal of Conflict and Security Law 1-14
52. Lowe, 'The Iraq Crisis: What Now?' (2003) 52 ICLQ 866
53. TH Franck, 'What Happens Now? The United Nations After Iraq The Agora: Future Implications of the Iraq Conflict' (2003) 97 American Journal of International Law 607 et seq;
54. Cotten, 'Opération Iraqi Freedom: Peuton Admettre l'Argument de l' Autorisation Implicite du Conseil de Securité?' (2003) 36 Revue Belge de Droit International 205-47.
55. The Security Council has been involved in numerous crises after the Iraqi conflict and has authorized correspondingly many operations under Chapter VII. See inter alia: SC Res 1484 (2003), 1565 (2004), 1597 (2005) over DR Congo, SC Res 1528 (2004) over Côte d'Ivoire (cf and 1464/2003), SC Res. 1575 (2004) for Bosnia-Herzegovina, SC Res 1545 (2004) over Burundi, SC Res 1562 (2004) over Sierra Leone, SC Res 1529 (2004) over Haiti and of course SC Res 1511 (2003) and 1546 (2004) concerning Iraq.
56. See the reform proposals of the Secretary-General of the United Nations enunciated in his Report 'In Larger Freedom: Towards development, security and human rights for all' (21 Mar 2005) UNGA A/59/2005 available at .
57. See also with regard to the High-Level Panel Report: KM Manusama, 'The High Level Panel Report on Threats, Challenges and Change and the Future Role of the UN Security Council' (2005) 18 Leiden Journal of International Law 605-20.
58. On the issue of authorization of Chapter VII powers, the benchmark work is of D Sarooshi, The United Nations and the Development of Collective Security (OUP, Oxford, 1999) 13.
59. See also N Blokker, 'Is the Authorization Authorized? Powers and Practices of the UN Security Council to Authorize the Use of Force by Coalitions of the Willing' (2000) 11 European Journal of International Law 541
60. and L-A Sicilianos, Authorisation by the UN Security Council to Use Force (Ant N Sakkoulas, Athens, 2003) [in Greek] and a summary of his work in French, in id, 'L'autorisation par le Conceil de sécurité de recourir à la force' (2002) 106 RGDIP 5-50.
61. Significant in this regard is the jurisprudence of the European Court of Justice and the Court of First Instance concerning cases arising from the implementation of sanctions imposed by decisions of Security Council under Art 41 of the UN Charter. See, eg, the recent Judgment of the Court of First Instance of 21 Sept 2005, Case T-315/01 Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities;
62. for scholarly opinion see: I Canor, 'Can Two Walk Together, Except they be Agreed? The Relationship between International Law and European Law: The Incorporation of United Nations Sanctions Against Yugoslavia into European Community Law through the Perspective of the European Court of Justice' (1998) 35 Common Market Law Review 137-87.
63. Of cardinal importance to the international legal order is the question quis custodiet ipsos custodes ('who will guard the guards themselves?') in the framework of Security Council or, in other words, the matter of the judicial review of its Resolutions. As the Appeals Chamber of the ICTY held in the Tadić case: 'neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law)'. The fact that the international system does not allow for any automatic review of the Council's decision does not rule out the possibility that, in practice, matters of ultra vires will be dealt with juridically, either indirectly or incidentally. See in this regard V Gowlland-Debbas, 'The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case' (1994) 88 American Journal of International Law 643 et seq.
64. See also E de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, Oxford, 2004)
65. and D Schweingman, The Authority of the Security Council under Chapter VII of the UN Charter. Legal Limits and the Role of the International Court of Justice (Kluwer Law International, The Hague, 2001).
66. See Jaworzina Advisory Opinion of 6 Dec 1923, PCIJ Rep Series B, No 8, p 37.
67. See Certain Expenses of the United Nations case, [1962] ICJ Rep, p 297.
68. This was also the contemplation of the relevant sub-committee at the San Francisco negotiatons of the UN Charter, which recommended that the interpretation of the Charter should be left, at least initially, to the institutional organs, see 'Report of the Rapporteur of Committee IV/2, as approved by the Committee' UN Doc 933 IV/2/42 (2) (1945).
69. See also in this regard: J Alvarez, 'Constitutional Interpretation in International Organizations' in J-M Coicaud and V Heiskanen, The Legitimacy of International Organizations (United Nations University Press, Tokyo, 2001) 104 et seq.
70. According to Sarooshi, the principle delegatus non potest delegare (see in this respect: Meroni v High Authority Case 9156, [1958] ECJ 133), which applies to the delegation of powers by the Security Council, entails that there must be imposed certain limitations on the exersise of the power on the delegate, as well as that the terms of the delegation are to be construed narrowly.
71. See D Sarooshi (n 22) 36 et seq.
72. An array of examples of such interpretations is furnished by Sir Michael Wood in his seminal article on the present topic, see (n 16) 83 et seq.
73. See also in this regard D Sarooshi (n 22) 57 et seq. However, it is difficult to countenance the thesis propounded by Sarooshi, namely that 'until the Security Council makes a decision of which contrary to the Secretary-General's interpretation then it is binding on UN Member States'. This contention is erroneously based upon the premise that the Secretary-General is a different delegate than the Member States; on the contary, since it is warranted that the latter's interpretations cannot be binding erga omnes partes, as corollary to the application of the aforementioned non-delegation principle, the same should apply to the Secretary-General.
74. See (n 16) and corresponding text.
75. It should be mentioned here that the present enquiry has confined itself solely to the assessment of the relevant decisions of international bodies and not of national courts, since the former bear much more evaluative weight for its purposes than the latter.
76. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep, p 53 [hereinafter Namibia]
77. and also the pertinent remarks by R Higgins, 'The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter?' (1972) 21 ICLQ 270 et seq.
78. See M Wood (n 16) 75.
79. See Advisory Opinion of 15 May 1931 Access to German Minority Schools in Upper Silesia PCIJ Series A/B, No 40, p 16.
80. See ibid 18.
81. See also the analysis in M Bos (n 16) 6.
82. See Tadić IT-94-1-AP72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 Oct 1995), [1996] 35 International Legal Materials 32-74.
83. See also the methods of interpretation employed by the same Tribunal in the later Judgment of the Appeals Chamber in Tadić case (judgment of 15 July 1999) paras 282-6 and 287-302. It is worth underlying that the Tribunal commenced its interpretive process with the following words: '[n]otwithstanding the fact that the ICTY Statute is legally a very different instrument from an international treaty...', see para 282.
84. In its words 'the Statute of the International Tribunal is interpreted as a treaty', see Slobodan Milošević (Decision on Preliminary Motions), ICTY Trial Chamber III, Decision of 8 Nov 2001 (case no IT-99-37-PT) para 47.
85. See ibid paras 45-7.
86. See Arbitral Award of 21 Oct 1994.
87. Dispute concerning the course of the frontier between BP 62 and Mount Fitzroy (Argentine/Chile), in RGDIP (1996) 552.
88. It enunciated the following requirements: 'the interpretation must be a logical one; it must be based upon an attempt to understand both the letter and spirit of the rule under construction and the interpretation must be in conformity with the context of the body of rules and regulations to which it belongs and must seek to give the maximum effect to these rules and regulations'; see Howrani and Four Others, UNAT Judgment No 4 (1951), Judgments of the United Nations Administrative Tribunal (JUNAT) Nos 1-70, p 8,
89. cited in Wood (n 16) 86.
90. See per ibid 77
91. and Thirlway (n 14) 29
92. contra: Amerasinghe, who claims that 'in the interpretation of decisions of organs which are clearly of a delegated nature, the principles of interpretation used will be similar to those used in the interpretation of constituted texts, though there may have to be a change in emphasis and priorities', see (n 16) 61.
93. cf, eg, the relevant dictum of the Namibia case, which alludes specifically to the provisions of the Charter invoked as criterion of the interpretation to be given respectively, see (n 32) and corresponding text.
94. Note in this regard that the interpretive communities have much in common with 'epistemic communities', though their main difference is that the interpretive community offers not only knowledge and policy advice but more importantly passes judgment. See for 'epistemic communities', PM Haas, 'Introduction: Epistemic Communities and International Policy Coordination' (1992) 46 International Organization 1.
95. See S Fish, Is There a Text in the Class? The Authority of Interpretive Communities (Harvard University Press, Cambridge, Mass, 1980).
96. Fish explains the concept as follows: '[t]he notion of interpretive communities was originally introduced as an answer to a question that had long seemed crucial to literal studies. What is the source of interpretative authority: The text or the reader? [...] What was required was an explanation that could account for both... and that explanation was found in the idea of an interpretive community, not so much as a group of individuals who shared a point of view, but a point of view or way of organizing experience that shared individuals in the sense that its assumed distinctions, categories of understandings and stipulation of relevance and irrelevance were the content of the consciousness of the community members who were therefore no longer individuals but, in so far as they were embedded in the community's enterprise, community property', see id, Doing what Comes Naturally (Clarendon Press, Oxford, 1989) 141-2.
97. These assumptions and beliefs are, for the community associated with the particular institutional setting, 'facts', which are not immutable but provide objectivity within a community of interpretation where they need not to be questioned. See K Abraham, 'Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair' in S Levinson and S Mailloux (eds), Interpreting Law and Literature: A Hermeneutic Reader (Northwestern University Press, Evanston, I11., 1988) 115 et seq, 122-4.
98. See I Johnstone, 'Security Council Deliberations: The Power of the Better Argument' (2003) 14 European Journal of International Law 437-80, 444-5.
99. Johnstone imagines the interpretive community composed of two concentric circles. The inner circle (or what he christened in his earlier writings as 'narrow interpretive') consists of all individuals directly or indirectly responsible for the formulation, negotiation, conclusion, implementation and application of a particular legal norm. It is surrounded by an outer circle of lawyers and other experts engaged in professional activities associated with the practice or issue area regulated by the norm. This broader community is analogous to what Oscar Schachter has called the invisible college of lawyers - a group of professionals dispersed throughout the world who are dedicated to a common intellectual enterprise and engage in a continuous process of communication and collaboration. See ibid 450.
100. Also, see O Schachter, 'The Invisible College of International Lawyers' (1977) 72 Northwestern Law 217 et seq.
101. Dworkin's point of departure is that law is based on integrity. In explaining this view, he notes that 'according to law as integrity, propositions of law are true if they figure in or follow from principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community's legal practice'; see: Id, Law's Empire (Hart Publishing, Oxford, 1986) 225.
102. Thus, he calls his theory of interpretation 'constructive', which in its simplest formulation is the following: 'constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which is taken to belong', ibid 52.
103. According to Dworkin, '[1]egal practice is an exercise in interpretation not just when lawyers interpret documents or statutes but also generally. Propositions of law [...] are interpretive of legal history, which combines elements of both description and evaluation, but is different from both', id, 'Law as Interpretation' (1982) 60 Texas Law Review 529.
104. See Johnstone (n 48) 447.
105. Dworkin claims that constraints are inherent in that enterprise. According to him, 'the history of shape of a practice or object constrains the available interpretations of it'; see (n 50) 63.
106. See in this regard their dialogue in S Fish, 'Working on the Chain Gang: Interpretation in Law and Literature' (1981-2) 60 Texas Law Review 551
107. and R Dworkin, 'My Reply to Stanley Fish' in W Mitchell (ed), The Politics of Interpretation (University of Chicago Press, Chicago/London, 1982) 287 et seq.
108. See JW Harris, Legal Philosophies (2nd edn Butterworths, London, 1997) 193 et seq.
109. Fish, for example, accuses Dworkin of 'rather than avoiding the Scylla of legal realism ("making it up wholesale") and the Charybdis of strict constructionism ("finding the law just there"), commiting himself both to them', while he condemns him by the aphorism that 'Dworkin's failure to see this [Fish's source of interpretive constraints] is an instance of a general failure to understand the nature of law' ibid 555 and 562.
110. Conversely, Dworkin argues that the constraints imposed by the practices of the professional literary community are so weak that, despite Fish's protest to the contrary, interpretation is effectively rendered wholly subjective by his theory see ibid 294.
111. See S Fish (n 45) 14.
112. See JW Harris (n 55) 197.
113. According to Dworkin, '[h]ard cases arise, for any judge, when his threshold test does not discriminate between two or more interpretations of some statute or line of cases. Then to decide which of those interpretations is "right" (in Dworkin's theory, there is only one right answer), his ideal Judge Hercules must ask which shows the community's structure and institutions and decisions - its public standards as a whole - in a better light from the standpoint of political morality', see R Dworkin (n 50) 255-6.
114. See also C Sustein's criticism on that point in The Partial Constitution (Harvard University Press, Cambridge, Mass, 1993) 113.
115. See I Johnstone, 'Treaty Interpretation: The Authority of Interpretive Communities' (1991) 12 Michigan Journal of International Law 382
116. and (n 48) 449-50.
117. Concurring is ND White (n 19) 656.
118. See discussion in ibid 452 et seq.
119. See J Habermas, Theory of Communicative Action (Beacon Press, London, 1981).
120. In the words of Risse, '[t]he theory of communicative action holds that there are at least three kinds of communicative behaviour: Bargaining based on fixed preferences; strategic argumentation, in which arguments are used to justify positions and persuade others to change their minds; and true reasoning, in which actors seek a reasoned consensus on the basis of shared understandings, where each actor not only tries to persuade but also is prepared to be persuaded', see id, 'Let's Argue!: Communicative Action in World Politics' (2000) 54 International Organization 7-9.
121. See Johnstone (n 48) 464.
122. 'A common lifeworld consists of shared experiences and assumptions: A supply of collective interpretations of the world and of themselves, as provided by language, common history or culture', Risse (n 60) 10-11.
123. See Johnstone (n 48) 460.
124. In this regard, he argues that '[a]ll that is necessary is a sense of being in a relationship of some duration from which common meanings and expectations have emerged and of being engaged in an enterprise the general purpose of which all understand in roughly the same way.' ibid 456.
125. ibid 475.
126. See, eg, the critique by Dworkin (n 54)
127. and A Marmor, Interpretation and Legal Theory (Hart Publishing, Oxford, 2005) 64 et seq.
128. See I Johnstone (n 58) 382.
129. More specifically, the PS have a common interest in the upholding of the balance of power therein, which emanates from their privileges, and the Non-Permanent Members usually are interested in not disturbing the above balance and losing, consequently, other contingent benefits.
130. See A Barak, Purposive Interpretation in Law (Princeton University Press, Princeton and Oxford, 2005) 88 et seq.
131. Noteworthy is also that the purposive theory shares many fundamentals with Dworkin's 'constructive' system of interpretation, see ibid 296.
132. See ibid 307 et seq.
133. This methodology, namely the perusal of the interpretation of Security Council Resolution against the background of the rules of VCLT, was followed primarily by Sir M Wood in his relevant analysis, see id (n 16) 85 et seq.
134. Sir Gerald Fitzmaurice argued in this respect that the '[i]nterpretation starts as it must with a careful consideration of the text to be interpreted. This is so because the text is the expression of the will and intentions of the parties. To elucidate its meaning, therefore, is, ex hypothesis, to give effect to that will and intention,' see id, 'The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpetation and Other Treaty Points' (1957) 33 British Yearbook of International Law 207.
135. See in this regard the Namibia and Tadić cases (n 32) and (n 37) correspondingly.
136. and Tadić cases (n 32) and (n 37) correspondingly.
137. See (n 11).
138. We should recall at this point the definition of Johnstone, namely that 'the interpretive task is to ascertain what the text means to the parties collectively rather than to each individually', see (n 58).
139. See also White (n 19) 657.
140. Resolution 678 (1990) authorized Member States cooperating with the government of Kuwait 'to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions...' in the context of the Second Gulf War, see SC Res 678 (29 Nov 1990) para 2, [1990] 29 ILM 1565.
141. See, eg, the Resolution 837 (1994) in regard to Somalia, whereby the Security Council authorized the first real 'peace-enforcement' operation of UN (UNOSOM II), following the Proposals of Secretary-General in his Report, which the Council adopted expressis verbis. The latter should be considered as relevant interpretive material under the veil of the 'context' of the Resolution.
142. See also Sarooshi (n 22) 217.
143. See (n 34) and corresponding text.
144. It is this aspect of that principle, not its counterpart ('la règle de l'effet utile') that pertains to effectiveness and involves giving the object and purpose an important place in the interpretive technique (the celebrated maxim ut res magis valeat quam pereat). See in this regard G Berlia, 'Contribution à l'interprétation des traités' 114 Recueil des Cours de l'Académie de Droit International (1965-1) 306 et seq.
145. See Sir G Fitzmaurice (n 72) 207 et seq.
146. See the pertinent remarks in CF Amerasinghe (n 3) 182 et seq.
147. See also Talmon (n 13) 190.
148. See Tadić case (n 37) and especially the Judgment of the Appeals Chamber (1999) para 282.
149. Sir Gerald Fitzmaurice makes the following remarks with regard to the relationship between these two schools of thought: 'while the teleologist himself has little direct regard for intentions as such, the intentionist finds himself quite at home among the teleologists: There is always a tendency for an inquiry as to what the framers of a treaty intended to develop into one as to what object they had in view and from this to conclude that the treaty has a certain purpose, in the light of which all its clauses must be interpreted' (n 72) 209.
150. See (n 70) and corresponding text.
151. See Barak (n 69) 91.
152. In his words, 'purposive interpretation is a kind of dialogue between the intention of the reasonable author and of the system and the intention of the actual author. Interpreters play a dual role in this dialogue. On the one hand, they live in the present, and their understanding is a product of the legal system's contemporary values. On the other hand, interpreters try to understand a text that was created in the past...' ibid 112.
153. See Dworkin (n 50).
154. See in this regard Byers (n 16) 25 et seq.
155. See T Farer, 'An Inquiry into Legitimacy of Humanitarian Intervention' in L Damrosch and D Scheffer (eds), Law and Force in the International Order (Westview Press, Boulder, 1991) 185 et seq,
156. and ibid 23.
157. See Barak (n 69) 66 et seq.
158. ibid 24.
159. Contra 'implied authorization': L-A Sicilianos (n 22) 42 et seq,
160. Lobel and Ratner (n 18).
161. See (n 11).
162. See on the last point the remarks of Frowein (n 16) 99.
163. See with regard to 'unilateral acts': E Suy, Les Actes Juridiques Unilatéraux en Droit International Public (LGDJ, Paris, 1962)
164. Fiedler, 'Unilateral Acts in International Law' in R Bernhard (ed), Encyclopedia of Public International Law (Max Planck Institute, Heidelberg, 1984) 522 et seq.
165. See also the definition adopted by the ILC Special Rapporteur, VR Cedeño, in the pertinent study undertaken by ILC: 'unilateral act of a State means an unequivocal expression of the will which is formulated by a State with the intention of producing legal effects in relation to one or more other States or international organizations and which is known to that State or international organization' in Third Report on Unilateral Acts of States (2000), A/CN.4/505, p 13.
166. See VR Cedeño, Fourth Report on Unilateral Acts International Law Commission (2001) A/CN.4/519, p 36.
167. See ibid 22 et seq
168. and M Fitzmaurice, 'The Optional Clause System and the Law of Treaties: Issues of Interpretation in Recent Jurisprudence of the International Court of Justice' (1999) 20 Australian Yearbook of International Law 127-59.
169. Pursuant to Art 32 of VCLT, recourse to them should be made either to confirm the meaning resulting from the application of Art 31, or when the meaning is still obscure or 'leads to a result manifestly absurd'. For a contrary opinion see inter alia S Schwebel, 'May Preparatory Work be Used to Correct rather than Confirm the "Clear" Meaning of a Treaty Provision' in J Makarczyk (ed), Theory of International Law at the Threshold of 21st Century (Kluwer Law International, The Hague, 1996) 541-7.
170. See also J Klabbers, 'International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?' (2003) 50 Netherlands International Law Review 267-88.
171. See inter alia SD Bailey and S Daws (n 13)
172. and M Wood, 'Security Council Working Methods and Procedure: Recent Developments' (1996) 45 International and Comparative Law Quarterly 150 et seq.
173. See I Johnstone (n 58) 462 et seq
174. and J Prantl, The UN Security Council and Informal Groups of States: Complementing or Competing for Governance? (OUP, Oxford, 2006).
175. See Sir M Wood (n 16) 93 et seq.
176. As a Rapporteur of ILC on the Law of Treaties (1951), Sir Gerald Fitzmaurice drew up a comprehensive set of principles of interpretation. Amongst them was 'Principle VI: Contemporaneity-that the terms of a treaty must be interpreted in the light of linguistic usage current at the time when the treaty was concluded', see id (n 72) 203.
177. See also a discussion of them in light of the recent jurisprudence of ICJ in H Thirlway, 'The Law and Procedure of the International Court of Justice, 1960-1989 (Part Three)' (1991) 62 British Yearbook of International Law 16 et seq.
178. See in this regard (n 24).
179. See (n 28).
180. See the relevant dictum in Nicaragua case, which implies that the above norm is considered as such by the whole international community. See [1986] ICJ Rep, p 100
181. and more generally for jus cogens: Inter alia, R Kolb, Theorie du Ins Cogens International (Presses Universitaires de France, Paris, 2001)
182. and A Orakhelasvili, Peremptory Norms in International Law (OUP, Oxford, 2006).
183. See Furundzija (Trial Chamber, ICTY) [1999] 38 ILM 349.
184. Judge Lauterpacht in his Separate Opinion in the Genocide case between Bosnia-Herzegovina and FRY referred to jus cogens and Security Council Resolutions maintaining that: 'the relief which Article 103 may give to the Security Council in case of one of its decisions and an operative treaty cannot-as a matter of simply hierarchy of norms- extend to a conflict between a Security Council resolution and jus cogens', Separate Opinion [1993] ICJ Rep, p 440.
185. The Chamber held that 'it is open to Security Council-subject to peremptory norms of international law (jus cogens) - to adopt definitions of crimes in the Statute which deviate from customary international law' (n 37) para 296.
186. See Kadi case (n 23) para 226. Moreover, the Court referred to the consequences in case of a breach of jus cogens, stressing that: '[i]nternational law thus permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: Namely, that they must observe the fundamental peremptory provisions of jus cogens.
187. If they fail to do so, however improbable that may be, they would bind neither the Member States of the United Nations nor, in consequence, the Community', ibid para 230.
188. See A Reinisch, 'Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions' (2001) 95 American Journal of International Law 858, 859.
189. This was recognized also by the International Law Commision when it was drafting the Vienna Convention on Law of Treaties between States and International Organizations (1986), see II UNCLT Official Records (1986) 39.
190. See for this issue, inter alia A Orakhelashvili, 'The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions' (2005) 16 European Journal of International Law 59-88, 69 et seq.
191. Nicholas Angelet 'International Law Limits to the Security Council' in V Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer Law International, The Hague, 2001) 76 et seq.
192. See HP Gasser, 'Collective Economic Sanctions and International Humanitarian Law' (1997) 57 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 883
193. Orakhelashvili (n 113) 80.
194. The latter's very structured analysis, however, steps on a slippery slope when he goes to examine the means of challenging Resolutions infringing peremptory norms, where among others, he avers that the States can defy compliance with that Resolution, ibid 85-6
195. contra: K Doehring, 'Unlawful Resolutions of the Security Council' (1997) 1 Max Planck Yearbook of United Nations Law 98 et seq.
196. See relevant discussion in ibid.
197. See in this regard inter alia: S Lamb, 'Legal Limits to United Nations Security Council Powers' in G Goodwin-Gill and Stefan Talmon (eds), The Reality in International Law: Essays in Honour of Ian Brownlie (OUP, Oxford, 1999) 361-88,
198. Gowlland-Debbas, 'The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance' (2000) 11 European Journal of International Law 361-83.
199. For a slightly different opinion, namely that the Purposes and Principles of the Charter 'establish guidelines rather than concrete limits for SC action', see J Frowein and V Krisch, Introduction to Chapter VII, in B Simma (ed), The United Nations Charter. A Commentary (2nd edn, OUP, Oxford, 2002) 710-11.
200. See Barak (n 69) 90 et seq.
201. See in this regard Amerasinghe (n 3) 182.
202. This is premised upon an old rule of interpretation of treaties, frequently invoked before the VCLT, according to which treaties must be interpreted as respecting the sovereignty of States as far as possible, cf Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder PCIJ Series A, No 23, p 26.
203. See also S Sur, L'intérpretation en droit international public (Librairie générale de droit et de jurisprudence, Paris, 1974) 121 et seq.
204. Concurring are Frowein and Krisch '[f]or Security Council resolutions under Chapter VII, it seems therefore warranted to have recourse to the old rule of interpretation according to which limitations of sovereignty may not be lightly presumed' (n 116) 713 and Frowein (n 16) 112.
205. See the interpretation of Rule 27 of the General Assembly's Rules of Procedure by the UN Legal Counsel in 1970, where it was concluded that efficiently suspension of membership was not permitted by the rejection of credentials because the rule of procedure could not be interpreted to have a result in conflict with the Charter of the UN. See UN Juridical Yearbook (United Nations, New York, 1970) 169,
206. cited in Amerasinghe (n 16) 64.
207. See Dworkin (n 50).
208. It is imperative to stress here that the ensuing discussion will be restrictred to the Resolutions pertaining to the legality of the invasion of Iraq and will not canvass the ex post facto ones regarding its occupation (see Res 1483 (2003), 1500 (2003), 1511 (2003), 1546 (2003) et al). This is not due to the insignificance of the latter but due to the spatial confines of the present essay and moreover due to the emphasis placed herein predominantly on the type of Resolutions-Authorizations.
209. See (n 9) (USA) and 10 (UK).
210. See inter alia N Krisch, 'Unilateral Enforcement of the Collective Will: Kosovo, Iraq and the Security Council' (1999) 3 Max Planck Yearbook United Nations Law 71 et seq;
211. Denis, 'La Résolution 678 (1990) peut-elle légitimer les actions armies menées contre l'Iraq postérieurement à l'adoption de la resolution 687 (1991)?' (1998) 31 Revue Belge de Droit International 485-525
212. Wedgwood (n 18) et al.
213. See also per the above position: C Denis (n 124) 495
214. Franck (n 19) 613
215. Hofmann, 'International Law and the Use of Military Force against Iraq' (2002) 45 German Yearbook of International Law 19.
216. The Council meeting at which 678 was adopted showed that the Member States viewed this as giving the Coalition authority to push Iraq out of Kuwait and to restore peace between the two States, not to take any wider action. See S/PV 2963rd meeting (29 Nov 1990).
217. See also relevant analysis in Sicilianos (n 22) 75.
218. The Coalition of the Wiling never pursued a regime change in Iraq and the hostilities ceased as soon as Kuwait was liberated. President Bush Sr said respectively that 'The UN Resolutions never called for the elimination of Saddam Hussein', quoted in Franck (n 19) 612 (n 18).
219. See with regard to this principle (n 103) and corresponding text.
220. Of paramount importance in this regard is besides the reaffirmation of the commitment of all States to the sovereignty and territorial integrity of Iraq in the preamble, the declaration of the Council in the last paragraph that it 'remains seized of the matter and would take such further steps as may be required for the implementation of this resolution and to secure peace and security to the area' (para 34). This was confirmed by an Indian declaration in the Council debate preceding the adoption of the said Resolution. According to that statement, 'as regards operative paragraph 34 of the draft resolution, it is India's understanding that it does not confer authority on any country to take unilateral action under any of the previous resolutions of the Council. Rather, the sponsors have explained to us that in case of an threat or actual violation of the boundary in the furure the Security Council will meet to take, as appropriate, all necessary measures...', see Doc S/ PV.2981, 3 Apr 1991, p 72 et seq.
221. See also Sicilianos (n 22) 103
222. and Frowein (n 16) 107.
223. See Lobel and Ratner (n 18) 149.
224. See respectively G Gottereau, 'Rebondissement d'octobre en Iraq: La resolution 949 du conseil de sécurité (15 octobre 1994)' (1994) 40 Annuaire Français de Droit International 175-93.
225. See nn 17 and 18 and corresponding text.
226. See nn 17 and 18 and corresponding text.
227. See nn 17 and 18 and corresponding text.
228. See nn 17 and 18 and corresponding text.
229. See S/PV. 4644, 8 Nov 2002, p 2 et seq and thorough analysis of the relevant travaux in O Corten (n 19) 216 et seq
230. and ND White and PJ Myjer (n 19) 4 et seq,
231. and Hofmann (n 124) 22 et seq.
232. See S/PV. 4644, 8 Nov 2002, p 3.
233. See D McGoldrick, 'From "9-11" to the "Iraq War 2003"' International Law in an Age of Complexity (Hart Publishing, Oxford, 2004) 62.
234. See (n 131).
235. It should be reiterated here that, according to the view of the present writer, the 'context' of a Resolution encompasses also the documents to which explicit allusion is made in the corpus of the Resolution in question, eg the Reports of the Secretary General. See (n 78) and corresponding text.
236. See in this respect F Nguyen-Roualt (n 18) 843 et seq and further references therein.
237. See Lord Goldsmith (n 10) 812.
238. In his Advice on 7 March 2003, Lord Goldsmith revealed in this respect that 'I was impressed by the strength and sincerity of the views of the US Administration which I heard in Washington on this point. However, the difficulty is that we are reliant on their assertions for the view that the French (and others) knew and accepted that they were voting for a further discussion and no more', see ibid 774.
239. See D McGoldrick (n 135).
240. Logic as interpretive method is not a terra incognita in the context of our enquiry, bearing in mind the relevant reference to it in the Tadić case; see (n 37).
241. See also in this respect: O Corten (n 19) 212 et seq.
242. See Byers (n 16) 41.