Foto: A.Jansons
If the US attack on Iraq is allowed to take place, it would seriously undermine the efforts of many centuries in developing a legal and institutional regulation for the authorized use of force in relations between States. As they say – the genie may be let out of the bottle.
Several choices and reasons have been offered. The support Latvia and the Baltics have received from the US in the not so distant past as well as during the occupation of the Baltic States, when the US represented one of the strongest examples of a policy of non-recognition, has been duly noted. Hussein’s regime has been proclaimed undemocratic and it is indeed unknown when he might decide to “play” with his threatening military arsenal. In either case, it is clear that now Latvia must demonstrate its active stance against undemocratic regimes and nests of terrorism and stand in solidarity with the USA, NATO and other European nations. Only, neither NATO, nor Europe have yet agreed on the issue of whether an attack on Iraq is the only solution to the problem. Also, nothing has been mentioned about the planned use of force against any other undemocratic regime like, for example, North Korea, which is both very undemocratic and is known to posses dangerous weapons.
One of the most pertinent questions underlying the events of the past few months is whether the world will again officially return to the centuries old practice whereby States solved their problems and conflicts through the unilateral use or threat of use of force. The first attempts to legally prohibit this practice were made between the two world wars. Of special importance to the fate of the Baltic States was the Kellog-Brian Pact of 1928, which prohibited the use of force as an instrument of national policy in international relations. The prohibition of the use of force in inter-state relations became one of the fundamental principles written into the Charter of the United Nations.[1] It must be added that the Baltic States have suffered from the use of force and, precisely because the use of force has been prohibited, they were able to regain their independence and sustain their request for the continuity of their States of 1918 after fifty years of occupation, with all the relevant consequences (for example, the continuity of citizenship etc.).[2]
The UN Charter prohibits the use or threat of use of force in relations between States. The International Court of Justice in the Hague has concluded that, since the consolidation of this principle in international law, it has gained a generally binding character.[3] In other words, today it has the character of a constitutional jus cogens norm with specific obligations for all the nations of the world. Nevertheless, there are exceptions when the use of force is permitted a in inter-state relations. Chapter 7 of the UN Charter provides for the competence of the UN Security Council to determine conflicts as a threat to international peace and security and to decide on the appropriate measures to counter these threats. Military actions are included among these measures. In order to understand what it means, let us recall the war against Iraq sanctioned by the Security Council after Iraq’s invasion of Kuwait in the beginning of the 1990s. The second situation when the use of unilateral or multilateral force can be allowed derives from Article 51 providing for the right to self-defense. The United States used this provision against Afghanistan in its attempt to wipe out the hotbed of terrorism in that State, which had been responsible for the tragedy of September 11th. The attack on the Taliban regime and Bin Laden’s network was an example of multilateral collective defense as, in this instance, NATO employed Article 5 of its Treaty to provide collective support to one of its member States. However, the right to self-defense does not stretch on for an indefinite period – it only applies up until the point when the Security Council undertakes to resolve the conflict. Moreover, in accordance with Article 51, a State is required to inform the Security Council of the exercise of its right to self-defense, as the US did. A third exception to the prohibition of the use of force exists. It relates to regional or collective security organizations and their possible military activities, but these also require Security Council approval.
In accordance with Chapter 7, Article 39 of the UN Charter, the Security Council defines the existence of a threat to international peace and security, determines that a breach of international peace or an act of aggressive has taken place. Nowhere in this clause is it explicitly stated that, for example, terrorism is a threat to international peace. The understanding that it is a threat to international peace is a new development. The Security Council has interpreted this provision to include terrorism and today it is clear that this is a norm of international law. Security Council resolutions passed within a framework of Chapter 7 are legally binding on all States. This means that Latvia must fulfil these resolutions.
How does Security Council resolution No. 1441 (2002) appear in this context? Let us remember that, at the beginning, the US did not readily concede to the opinion of the majority of States that, in relation to Iraq, the Security Council must first deliver an opinion in the form of a resolution. The US government would have rather resolved the issue of Iraq unilaterally already last year. The skepticism of the US administration regarding the ability of the Security Council to execute serious decisions is understandable as the Security Council has frequently been paralyzed in view of various political interests that must be reconciled within the Council. Nevertheless, the fact that the first step in the resolution of the issue of Iraq was taken in the meeting hall of the Security Council and serious effort was given to drafting a legally binding resolution, acceptable to the international community, can be viewed as a notable triumph for the rule of international law. It is interesting that, for the first time, a resolution passed in the context Chapter 7 states that failure to implement other binding Security Council resolutions can qualify as a threat to world peace, thus giving the Security Council the ability to take further steps, including military steps, to ensure that the resolutions are implemented.
The question then is hat does the current “lugging” mean about the possible US invasion in Iraq since it is established that it has not fulfilled resolution No. 1441? This question is posed in this contribution not within the context of the Bush administration’s personal and economic interests, but rather in the context of the formation and strengthening of the international legal order. If the US and its allies are allowed to invade Iraq, the efforts of the centuries to create a legal and institutional basis for the regulation of the acceptable use of force in relations between States could be threatened. As they say – the genie could be let out of the bottle. If the US administration is able to get a majority of the States to support its military activities in Iraq then it might also be possible to speak about the creation of a new principle or rule of international law, which would envisage collective military action against undemocratic and threatening regimes.[4] Only, in this instance, all such regimes would have to start worrying. Of course, it remains unclear who, and on the basis of what criteria, might define the existence of such regimes as the understanding of democracy itself still varies. Could the Security Council do this?[5] Would this precedent not introduce more evil into the world than good? Finally, this may, in my opinion, prevent from any further development of a very valuable interpretation and utilization of Chapter 7 of the UN Charter, which clearly states that failure to implement a legally binding resolution could result in consequences allowed for within this Chapter and defined by the Security Council.. Alternately, should it become clear that the execution of such resolutions will be enforced in the future with the use of military force, the work of the Security Council could be completely paralyzed. States would not wish to use Chapter 7, as was the case during the Cold War. In those States, where an important role in the creation of foreign policy is given to legal departments and experts (for example Great Britain, Germany and France) the possible legal consequences of either option are clear. Perhaps this is precisely why the stance of these States on the issue of war is not without ambiguity. Even Great Britain, America’s greatest ally, would rather see a second Security Council resolution that would sanction their military activities. If the mandate for war remains within the control of the Security Council, subjective – political calculations will continue influencing the determination of threats to international peace. However, decisions taken within the context of the UN have a different weight and character than the unilateral action of States and the genie, while with difficulty, would remain in the bottle.
The choice, therefore, is over very important legal principles, which until now have ensured at least relative order in the world. These principles have also allowed small States to participate in world affairs on an equal footing with large States. Thus, small States have a special responsibility to stand behind these principles.
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[1] Refer to Article 2, point 4.
[2] Refer to Ditrich Andre Loeber, “Molotova-Ribentropa pakta juridiskās sekas Baltijas valstīs” (The legal ramifications of the Molotov-Ribentrop pact for the Baltic States), Likums un Tiesības, 4. Sējums, # 11 un # 12, 2002.
[3] Refer to Nicaragua v USA, ICJ Reports, 1986.
[4] On the topic of such interpretations of the UN Charter and the problem of accomodation and about how the US and Great Britain are isolated in their relatively ‘free’ interpretation of the Articles on the issue of the use of force, refer to Christine Gray, “From Unity to Polarization: International Law and the Use of Force against Iraq”, European Journal of International Law, vol. 13, # 1, 2002, pp. 1-19. Refer to other pieces in this journal as well.
[5] The idea that, for example, the violation of the rights of minorities indicates an undemocratic regime could develop.