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Role of Security Council on the Legal Aspect of the US Self-Defence
Posted by Herman Y.F. Tung on October 20, 2001 at 07:46:32:
Role of Security Council on the Legal Aspect of the US Self-Defence
First of all,SC is just a political body which decision does not constitute a
leagl judgement.The only legal aspect of its resolution are the states'
practice reflected in decision-making processes and processes of
implementation.resolutions of Sc are only orders other than legislature.
Secondly,there exists a dangerous trend on expanding competence of SC.it is
noteworthy that several SC resolutions concerning anti-terrorism require not
only the politic and economic action but also legislative acts by
states.Whereas Article 24(2) of Charter provides obligation of SC complying
purposes and principles of the UN Chareter,it is hardly accepted that SC could
intervene matters which are withing the demostic jurisdiction of any member
state even if Article 2(7) gives a exception for implementation of SC
resolutions.
Thirdly,even if resolutions of SC does not constitute a type
of international law source,they have gross impact on legal acts of states that
must implement these decisions of SC and even on juridical process(like the
situation of ICJ in the Lockby case).Consequently,it is still important
analysing attitude of SC on rights or obligation of states arising from
international law.
The brief analysis of resolution 1368:
1,"attack",not
"armed attack":it is obvious especially in international law that there is
great difference between these two terminology.
2,Only simply recognizing
the inherent right,no indicating if it is just the US having this
right.
3,Not decides that the attack was done by Taliban other than
terrorists.Only stresses that relevant states are held accountable.
4,Only
calls on all states to work together urgently to bring to justice to
terrorists,not explicitly authorizing states to take military action.It shall
be not neglected that the resolution also said that "Reaffirming the principle
and purposes of the Charter of the UN".
If there is any doubt if meaning of the resolution in some sense include
recognizance of self-defence right of US,one could note the resolution 661
about aggression of Iraq against Kewait says:"Affirming the inherent right of
individual or collective self-defence,in response to the armed attack by Iraq
against Kewait,in accordance with Article 51 of the Charter."
If there is
any doubt if meaning of the resolution in some sense include authorization to
states to take armed attack against international terrorists,one could note the
resolution 678 says:"Authorizing member states co-operating with the government
of Kewait,....,to use all necessory means to uphold and implement resolution
660(1990) and all subsequent relavant resolutions and to restore international
peace and security in the area."
It must be noteworthy that resolution 1368 is so equivocal that it may
lead to some inverse conclusion.
1,"Reaffirming the principle and purposes
of the Charter of the UN":
a) The purpose 1 of the Charter say that "to
bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace".If US can not positively
and efficiently prevent and do justice to terrorists in strict accordance with
provision of UN Charter because of inevitable time delay and political
divergence inside the UN,the mentioned principle of justice would be
infringed.
When the UN Charter privides:"All Members shall refrain in their
international relations from the threat or use of force ..",it means the
security of any state can be protected comprehensively and timely by so-called
collective-security institution which is carried by the UN.It can be regarded
as a legal balance pointing to the purposes of the UN,international
justice,peace and security.All legal interpretation about the precondition use
of force which can be found in "The Resolution on Definition of Aggression"and
the ICJ judgement in the Nicaragua case are founded on the realization of this
balance.
It is noteworthy that main threat agaist one state are from armed
attack another state and the casualty and damage caused by other kinds of acts
including by terrorists is very limlited at the time when the Charter and
relevant explanation were established.
However,during the recent decade,the
situation has been reversing. Firstly,casualty in recent armed conflicts has
been declined to hundreds,tens or even zero,meanwhile that casualty caused by
terrorism acts has been going up to hundreds or even six
thousands.Secondly,unlike armed conflicts,terrorism acts do not comply rules of
war and consequently are more hardly prevented and controlled.Facing the
terrorism attack which certainly threat international peace and security as
said by SC,if the collective security institution can not provide measures in
time to reponse effectively to it,The last means the victim state can only
resort to is so-called self-defence.If the state is unable yet to protect
itself pursuant to the Article 51 of the Charter,the balance would be lost,the
justice would be doubtlessly lost.
b) The principle 3 say that "All Members
shall settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered.
".So,states can choose peaceful means for settlement of international disputes
only under the precondition that justice would be not impaired because of
taking peaceful means.
By interpretation approch provided in the Convention
on the law of treaties which has been the customary international law with
numerous reaffirmation by ICJ,any interpretation of treaty can not voilate the
purpose.
(More detailed discussion about principle of justice as a possible
law source would be demonsrated in my article which has been done and would be
posted in the near future:
Several points should be noted about justice:
"Justice" has been generally accepted as a purpose of international law,for
numerous international treaties has explicitly declared "justice" as their
purpose.
"Justice" has been declared as a principle within many
treaties.
Most international tribunal statutes authorize judges to make
some special decision when "justice" so requires.
)
2,The simple or
ambiguous expression of the resolution 1368 could be regarded as an acceptance
for expanding explanation of self-defence by SC.This explanation extend the
meaning of self-defence
a) from "against some states who perpetrate the
attack" to "against some individuals and states who done the attack or support
or habor the those who done attack",
b) from "in response to armed attack"
to "in response to attack",
c) from "in accordance with Article 51" to "in
accordance with the whole Charter including its puposes and principles".
Herman Y.F. Tung
LLM student
East China University of Politics and
Law,
Shanghai,China
phone:0086-021-62071488
E-mail:ly047427@online.sh.cn
herman_tung@hotmail.com
- Re: Role of Security Council on the Legal Aspect
of the US Self-Defence MAHMOAD 09/12/02 (0)
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Monday, May 05, 2003 12:23PM