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Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis

Published online by Cambridge University Press:  17 January 2008

Efthymios Papastavridis
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Abstract

The ‘Operation Iraqi Freedom’ in 2003 raised many international legal questions, which all have been more or less addressed in the academic literature since then. However, the thrust of the relevant legal etiology pertained to the implementation of a series of UN Security Council Resolutions, whose hermeneutics, ie the rules of interpretation, in contrast to other issues, have been scarcely explored and elucidated. Accordingly, the purpose of this article is to address the latter question of the hermeneutics of Security Council Resolutions, and propound a coherent thesis in this respect, which would be applicable not only in the Iraqi conflict but even beyond. It will examine, first, whether the provisions of Articles 31–33 of VCLT are applicable either ipso jure or mutatis mutandis in this respect and then having deprecated both of these options, it will turn its focus to the question of which theoretical framework in relation to the hermeneutics in international law could better serve its purposes. Drawing insights from, amongst others, Stanley Fish, Ian Johnstone and Aharon Barak, it will be possible to propound the thesis that any relevant regulatio interpretations should pay due regard to the institutional setting of the ‘community’ of the Council, which in turn qualifies the ‘inter-subjective’ approach or the collective will of the Council in light of the object and purpose of the Charter, ie the maintenance of peace and security, as the most pertinent hermeneutic paradigm. Premised upon the latter, the article proceeds and articulates a rubric of interpretive principles and presumptions to be applied in this regard, which, at the end, will be tested in the case of ‘Operation Iraqi Freedom’.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 56 , Issue 1 , January 2007 , pp. 83 - 118
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

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, Bruns, G, Hermeneutics Ancient and Modern (Yale University Press, Yale, 1992)Google Scholar; Shapiro, G and Sica, A (eds), Hermeneutics: Questions and Prospects (University of Massachusetts Press, Amherst, 1994)Google Scholar; Bleicher, J, 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).Google Scholar

2 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: Posner, R, Law and Literature (rev edn, Harvard University Press, Cambridge, Mass, 1998) 211Google Scholar and Barak, A (n 69) 58.Google Scholar

3 There is arguably a basic dichotomy in the literature around treaty interpretation arising froma 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 thatthe 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: Amerasinghe, CF, ‘Interpretation of Texts in Open International Organisations’ (1994) 65 British Yearbook of International Law 188Google Scholar and Fitzmaurice, G, ‘Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 British Yearbook of International Law 1 et seq.Google Scholar 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: Stone, J, ‘Fictional Elements in Treaty Interpretation-A Study in the International Judicial Process’ (1954) 1 Sydney Law Review 334.Google Scholar 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: McDougal, M, Lasswell, H, and Miller, J, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure (Yale University Press, New Haven, 1967)Google Scholar and Falk, RA, ‘On Treaty Interpretation and the New Haven Approach: Achievements and Prospects’ (1968) 8 Virginia Journal of International Law 332.Google Scholar

4 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).Google Scholar

5 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 actionagainst 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.Google Scholar

6 SC Res 687 (3 04 1991) in [1991] 30 ILM 846.Google Scholar

7 SC Res 1441 (8 11 2002) in [2003] 42 ILM 250.Google Scholar For scholarly commentary see inter alia: Gray, C, International Law and the Use of Force (2nd edn, OUP, Oxford, 2004) 271 et seqGoogle Scholar, Kirgis, FL, ‘Security Council Resolution 1441 on Iraq's Final Opportunity to Comply with Disarmament Obligations’ (11 2002) in ASIL Insights available at <http://asil.org>>Google Scholar, McLain, P, ‘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.Google Scholar

8 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 theUnited States; Iraq had fired no shot against the United States before the operation in question andso forth. For the National Security Strategy see ‘The National Security Strategy of the United States of America’ (17 09 2002), available at <http://www.whitehouse.gov/nsc.nss.pdf>, reprinted in [2002] 41 ILM 1478,+reprinted+in+[2002]+41+ILM+1478>Google Scholar and with regard to Bush Doctrine on Pre-emptive Self-Defence, see inter alia: per Sofaer, AD, ‘On the Necessity of Pre-emption’ (2003) 14 European Journal of International Law 19 et seq.CrossRefGoogle Scholar Contra Bothe, M, ‘Terrorism and the Legality of Pre-emptive Force’ (2003) 14 European Journal of International Law 19 et seqCrossRefGoogle Scholar; Kolb, R, ‘Self-Defence and Preventive War at the Beginning of Millenium’ (2004) 59 Zeitschrift f¨r öffentliches Recht 111 et seq.Google Scholar

9 UN Doc S/2003/351 (21 03 2003) 1.Google Scholar See also the views of the US Legal Adviser and Deputy Legal Adviser published in Taft, WH IV and Buchwald, TF, ‘Preemption, Iraq and International Law, Agora: Future Implications of the Iraq Conflict’ (2003) 97 American Journal of International Law 557–63.Google Scholar

10 UN Doc S/2003/350 (21 03 2003).Google Scholar See also ‘Attorney-General Clarifies Legal Basis for the Use of Force against Iraq’, available at <http://www.fco.gov.uk> (18 03 2003)+(18+03+2003)>Google Scholar; and Foreign and Commonwealth Office, ‘Iraq: Legal Basis for the Use of Force’ (17 03 2003)Google Scholar, reproduced by Warbrick, C, ‘The Use of Force against Iraq’ (2003) 52 International & Comparative Law Quarterly 811–14.CrossRefGoogle Scholar The highly controversial and slightly different ‘Attorney General's Advice on the Iraq War: Resolution 1441’ (7 03 2003) is published in [2005] 54 International and Comparative Law Quarterly 767–78.Google Scholar Australia, also, followed the same line of reasoning in its communication to the Security Council, see UN Doc S/2003/352 (20 03 2003)Google Scholar and ‘Attorney-General's Memorandum of Advice on the Use of Force against Iraq’ (18 03 2003) in [2005] 24 Australian Journal of International Law 413–18.Google Scholar

11 See Arts 31–3 of Vienna Convention on the Law of Treaties (1969) (opened for signature 23 03 1969), 1155 UNTS 331Google Scholar [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); see inter alia: Fitzmaurice, M, ‘The Practical Working of the Law of Treaties’ in Evans, M (ed), International Law (2nd edn, OUP, Oxford, 2006) 187 et seq.Google Scholar

12 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 nan (rite) adimpleti contractus, see inter alia: Simma, B, ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law’ (1970) 20 Österreichisches Zeitschrift fur Öffentliches Recht 18Google Scholar; Comma, MM, Suspensionor Termination of Treaties on Grounds of Breach (Martinus Nijhoff, The Hague, 1996).Google Scholar

13 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 genericor legislative Resolutions, which impose general and abstract obligations on Member States (eg 1373/2001), 1540/2004). See inter alia: Bailey, SD and Daws, S, The Procedure of the United Nations Security Council (3rd edn, Clarendon Press, Oxford, 1998) 18–20CrossRefGoogle Scholar; Conforti, B, The Law and Practice of the United Nations (3rd edn, Kluwer Law International, The Hague, 2005) 291 et seqGoogle Scholar; Talmon, S, ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law 175CrossRefGoogle Scholar; Rosand, E, ‘The Security Council as Global Legislator: Ultra Vires or Ultra Innovative?’ (2005) 28 Fordham International Law Journal 542–90.Google Scholar

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15 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’.

16 See Wood, M, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Yearbook of United Nations Law 73–95Google Scholar; Frowein, J A, ‘Unilateral Interpretations of Security Council Resolutions: a Threat to Collective Security’ in Götz, V, Selmer, P, and Wolfram, R (eds), Liber Amicorum Günter Jaenicke-zum 85. Geburstag (Springer, Berlin, 1998) 97–112Google Scholar; Amerasinghe, CF, Principles of the Institutional Law of International Organizations (2nd edn, CUP, Cambridge, 2005) 61 et seqCrossRefGoogle Scholar; Bos, M, ‘The Interpretation of Decisions of International Organisations’ (1981) 28 Netherlands International Law Review 1–13CrossRefGoogle Scholar; Byers, M, ‘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.CrossRefGoogle Scholar

17 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 39231Google Scholar and ‘UK Materials on International Law’ (1993) 65 British Yearbook of International Law 736.Google Scholar

18 See from the vast amount of literature in this regard, inter alia: Lobel, J and Ratner, M, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Ceasefires and the Iraqi Inspection Regime’; (1999) 93 American Journal of International Law 124 et seqCrossRefGoogle Scholar; Thouvenin, JM, ‘Le jour le plus triste pour les Nations Unies-Les Frappes anglo-américaines dédecembre sur l'Iraq’ (1998) 44 Annuaire Français de Droit International 209–31CrossRefGoogle Scholar; Wedgwood, R, ‘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.CrossRefGoogle Scholar

19 For the operations in 1993 and 1998 see ibid. 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; Greenwood, C, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq’ (2003) 4 San Diego International Law Journal 7 et seqGoogle Scholar; and contra: White, ND and Myjer, EPJ, ‘Editorial: Use of Force against Iraq’ (2003) 8 Journal of Conflict and Security Law 1–14CrossRefGoogle Scholar; Lowe, V, ‘The Iraq Crisis: What Now?’ (2003) 52 ICLQ 866Google Scholar; Franck, TH, ‘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 seqCrossRefGoogle Scholar; Corten, O, ‘Opération Iraqi Freedom: Peuton Admettre l'Argument de l' Autorisation Implicate du Conseil de Securité?’ (2003) 36 Revue Belge de Droit International 205–47.Google Scholar

20 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'lvoire (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.

21 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 03 2005) UNGA A/59/2005 available at <http://www.un.org/largerfreedom/report-largerfreedom.pdf>..>Google Scholar See also with regard to the High-Level Panel Report: Manusama, KM, ‘The High Level Panel Report on Threats, Challenges and Change and the Future Role of the UNSecurity Council’ (2005) 18 Leiden Journal of International Law 605–20.CrossRefGoogle Scholar

22 On the issue of authorization of Chapter VII powers, the benchmark work is of Sarooshi, D, The United Nations and the Development of Collective Security (OUP, Oxford, 1999) 13.Google Scholar See also Blokker, N, ‘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 541CrossRefGoogle Scholar and Sicilianos, L-A, Authorisation by the UN Security Council to Use Force (Ant N Sakkoulas, Athens, 2003Google Scholar) [in Greek] and a summary of his work in French, in id, ‘L' autorisation par le Conceil de sé;curité de recourir à la force’ (2002) 106 RGDIP 5–50.Google Scholar

23 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: for scholarly opinion see: Canor, I, ‘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.CrossRefGoogle Scholar

24 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 Gowlland-Debbas, V, ‘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.CrossRefGoogle Scholar See also Wet, E de, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, Oxford, 2004)Google Scholar and Schweingman, D, 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).Google Scholar

25 See Jaworzina Advisory Opinion of 6 12 1923, PCIJ Rep Series B, No 8, p 37.Google Scholar

26 See Certain Expenses of the United Nations case, [1962] ICJ Rep, p 297.Google Scholar

27 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 IV(2) (1945).Google Scholar See also in this regard: Alvarez, J, ‘Constitutional Interpretation in International Organizations’ in Coicaud, J-M and Heiskanen, V, The Legitimacy of International Organizations (United Nations University Press, Tokyo, 2001) 104 et seq.Google Scholar

28 According to Sarooshi, the principle delegatus non potest delegare (see in this respect: Meroni v High Authority Case 9156, [1958] ECJ 133Google Scholar), 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. See Sarooshi, D (n 22) 36 et seq.Google Scholar

29 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. See also in this regard Sarooshi, D (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 panes, as corollary to the application of the aforementioned non-delegation principle, the same should apply to the Secretary-General.Google Scholar

30 See (n 16) and corresponding text.

31 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.

32 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) not with standing Security Council Resolution 276 (1970) [1971] ICJ Rep, p 53Google Scholar [hereinafter Namibia] and also the pertinent remarks by Higgins, R, ‘The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter?’ (1972) 21 ICLQ 270 et seq.Google Scholar

33 See M Wood (n 16) 75.

34 See Advisory Opinion of 15 05 1931 Access to German Minority Schools in Upper Silesia PCIJ Series A/B, No 40, p 16.Google Scholar

35 See ibid 18.

36 See also the analysis in M Bos (n 16) 6.

37 See Tadić IT–94–1–AP72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 10 1995), [1996] 35 International Legal Materials 32–74. See also the methods of interpretation employed by the same Tribunal in the later Judgment of the Appeals Chamber in Tadićcase (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 aninternational treaty …’, see para 282.Google Scholar

38 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.

39 See ibid paras 45–7.

40 See Arbitral Award of 21 Oct 1994. Dispute concerning the course of the frontier between BP 62 and Mount Fitzroy (Argentine/Chile), in RGDIP (1996) 552.Google Scholar

41 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’; seeHowrani and Four Others, UNAT Judgment No 4 (1951), Judgments of the United Nations Administrative Tribunal (JUNAT) Nos 1–70, p 8Google Scholar, cited in Wood (n 16) 86.

42 See per ibid 77 and Thirlway (n 14) 29; 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.

43 cf, eg, the relevant dictum of the Namibia case, which alludes specifically to the provisionsof the Charter invoked as criterion of the interpretation to be given respectively, see (n 32) and corresponding text.

44 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’, Haas, PM, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1.CrossRefGoogle Scholar

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47 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 Abraham, K, ‘Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair’ in Levinson, S and Mailloux, S (eds), Interpreting Law and Literature: A Hermeneutic Reader (Northwestern University Press, Evanston, 111., 1988) 115 etseq, 122–4.Google Scholar

48 See Johnstone, I, Security Council Deliberations: The Power of the Better Argument (2003) 14 European Journal of International Law 437–80, 444–5.CrossRefGoogle Scholar

49 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. Also, see Schachter, O, ‘The Invisible College of International Lawyers’ (1977) 72 Northwestern Law 217 et seq.Google Scholar

50 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. 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.Google Scholar

51 According to Dworkin, ‘[l] legal 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.Google Scholar

52 See Johnstone (n 48) 447.

53 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.

54 See in this regard their dialogue in Fish, S, ‘Working on the Chain Gang: Interpretation in Law and Literature’ (1981–1982) 60 Texas Law Review 551Google Scholar; and Dworkin, R, ‘My Reply to Stanley Fish’ in Mitchell, W (ed), The Politics of Interpretation (University of Chicago Press, Chicago/London, 1982) 287 et seq.Google Scholar

55 See Harris, JW, Legal Philosophies (2nd ednButterworths, London, 1997) 193 et seq. S 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 thenature of law” ibid 555 and 562. 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.Google Scholar

56 See S Fish (n 45) 14.

57 See JW Harris (n 55) 197. 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 structureand 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. See also Sustein's, C criticism on thatpoint in The Partial Constitution (Harvard University Press, Cambridge, Mass, 1993) 113.Google Scholar

58 See Johnstone, I, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1991) 12 Michigan Journal of International Law 382 and (n 48) 449–50. Concurring is ND White (n 19) 656.Google Scholar

59 See discussion in ibid 452 et seq.

60 See Habermas, J, Theory of Communicative Action (Beacon Press, London, 1981).Google Scholar 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 Polities’ (2000) 54 International Organization 7–9.Google Scholar

61 See Johnstone (n 48) 464.

62 ‘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.

63 See Johnstone (n 48) 460.

64 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.

65 ibid 475.

66 See, eg, the critique by Dworkin (n 54) and Manner, A, Interpretation and Legal Theory (Hart Publishing, Oxford, 2005) 64 et seq.Google Scholar

67 See I Johnstone (n 58) 382.

68 More specifically, the P5 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.

69 See Barak, A, Purposive Interpretation in Law (Princeton University Press, Princeton and Oxford, 2005) 88 et seq. Noteworthy is also that the purposive theory shares many fundamentals with Dworkin's ‘constructive’ system of interpretation, see ibid 296.Google Scholar

70 See ibid 307 et seq.

71 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.

72 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 Interpolation and Other Treaty Points’ (1957) 33 British Yearbook ofInternational Law 207.Google Scholar

73 See in this regard the Namibia and Tadić cases (n 32) and (n 37) correspondingly.

74 See (n 11).

75 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).

76 See also White (n 19) 657.

77 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 11 1990) para 2Google Scholar, [1990] 29 ILM 1565.Google Scholar

78 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. See also Sarooshi (n 22) 217.Google Scholar

79 See (n 34) and corresponding text.

80 It is this aspect of that principle, not its counterpart (‘la règie 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 Berlia, G, ‘Contribution à l'interprétation des traités’ 114 Recueil des Cours de I'Académie de Droit International (1965-I) 306 et seq.Google Scholar

81 See Sir G Fitzmaurice (n 72) 207 et seq.

82 See the pertinent remarks in CF Amerasinghe (n 3) 182 et seq.

83 See also Talmon (n 13) 190.

84 See Tadić case (n 37) and especially the Judgment of the Appeals Chamber (1999) para 282.Google Scholar

85 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.

86 See (n 70) and corresponding text.

87 ibid.

88 See Barak (n 69) 91. 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.

89 See Dworkin (n 50).

90 See in this regard Byers (n 16) 25 et seq.

91 See Farer, T, ‘An Inquiry into Legitimacy of Humanitarian Intervention’ in Damrosch, L and Scheffer, D (eds), Law and Force in the International Order (Westview Press, Boulder, 1991) 185 et seq, and ibid 23.Google Scholar

92 See Barak (n 69) 66 et seq.

93 ibid 24. Contra ‘implied authorization’: L-A Sicilianos (n 22) 42 et seq, Lobel and Ratner (n 18).

94 See (n 11).

95 See on the last point the remarks of Frowein (n 16) 99.

96 See with regard to ‘unilateral acts’: Suy, E, Les Actes Juridiques Unilatéraux en Droit International Public (LGDJ, Paris, 1962)Google Scholar; Fiedler, W, ‘Unilateral Acts in International Law’ in Bernhard, R (ed), Encyclopedia of Public International Law (Max Planck Institute, Heidelberg, 1984) 522 et seq.Google Scholar 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 relationto 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.Google Scholar

97 See Cedeño, VR, Fourth Report on Unilateral Acts International Law Commission (2001) A/CN.4/519, p 36.Google Scholar

98 See ibid 22 et seq and Fitzmaurice, M, ‘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.Google Scholar

99 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 Schwebel, S, ‘May Preparatory Work be Used to Correct rather than Confirm the “Clear” Meaning of a Treaty Provision’ in Makarczyk, J (ed), Theory of International Law at the Threshold of 21st Century (Kluwer Law International, The Hague, 1996) 541–7.Google Scholar See also Klabbers, J, ‘International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?’ (2003) 50 Netherlands International Law Review 267–88.CrossRefGoogle Scholar

100 See inter alia SD Bailey and S Daws (n 13) and Wood, M, ‘Security Council Working Methods and Procedure: Recent Developments’ (1996) 45 International and Comparative Law Quarterly 150 et seq.CrossRefGoogle Scholar

101 See I Johnstone (n 58) 462 et seq and Prantl, J, The UN Security Council and Informal Groups of States: Complementing or Competing for Governance? (OUP, Oxford, 2006).CrossRefGoogle Scholar

102 See SirWood, M (n 16) 93 et seq.Google Scholar

103 As a Rapporteur of ILC on the Law of Treaties (1951), Sir Gerald Fitzmaurice drew up acomprehensive 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. See also a discussion of them in light of the recent jurisprudence of ICJ in Thirlway, H, ‘The Law and Procedure of the International Court of Justice, 1960–1989 (Part Three)’ (1991) 62 British Yearbook of International Law 16 et seq.Google Scholar

104 See in this regard (n 24).

105 See (n 28).

106 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 100Google Scholar and more generally for jus cogens: inter alia, Kolb, R, Theorie du lus Cogens International (Presses Universitaires de France, Paris, 2001) and Orakhelasvili, A, Peremptory Norms in International Law (OUP, Oxford, 2006).Google Scholar

107 See Furundzija (Trial Chamber, ICTY) [1999] 38 ILM 349.Google Scholar

108 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[1993] ICJ Rep, p 440.Google Scholar

109 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.

110 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. If they failto 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.

111 See Reinisch, A, ‘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.CrossRefGoogle Scholar

112 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)Google Scholar, see II UNCLT Official Records (1986) 39.Google Scholar

113 See for this issue, inter alia Orakhelashvili, A, ‘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.CrossRefGoogle ScholarNicholas, Angelet ‘International Law Limits to the Security Council’ in Gowlland-Debbas, V (ed), United Nations Sanctions and International Law (Kluwer Law International, The Hague, 2001) 76 et seq.Google Scholar

114 See Gasser, HP, ‘Collective Economic Sanctions and International Humanitarian Law’ (1997) 57 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 883Google Scholar; A Orakhelashvili (n 113) 80. 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; contra: Doehring, K, ‘Unlawful Resolutions of the Security Council’ (1997) 1 Max Planck Yearbook of United Nations Law 98 et seq.Google Scholar

115 See relevant discussion in ibid.

116 See in this regard inter alia: Lamb, S, ‘Legal Limits to United Nations Security CouncilPowers’ in Goodwin-Gill, G and Stefan, Talmon (eds), The Reality in International Law: Essays in Honour of Ian Brownlie (OUP, Oxford, 1999) 361–88Google Scholar, Gowlland-Debbas, V, ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’ (2000) 11 European Journal of International Law 361–83.CrossRefGoogle Scholar For a slightly different opinion, namely that the Purposes and Principles of the Charter ‘establish guidelines rather than concrete limits for SC action’, see Frowein, J and Krisch, V, Introduction to Chapter VII, in Simma, B (ed), The United Nations Charter. A Commentary (2nd edn, OUP, Oxford, 2002) 710–11.Google Scholar

117 See Barak (n 69) 90 et seq.

118 See in this regard Amerasinghe (n 3) 182. 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.Google Scholar See also Sur, S, L'intérpretation en droit international public (Librairie générate de droit et de jurisprudence, Paris, 1974) 121 et seq.Google Scholar

119 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.

120 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, cited in Amerasinghe (n 16) 64.Google Scholar

121 See Dworkin (n 50).

122 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 notdue 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.

123 See (n 9) (USA) and 10 (UK).

124 See inter alia Krisch, N, ‘Unilateral Enforcement of the Collective Will: Kosovo, Iraq and the Security Council’ (1999) 3 Max Planck Yearbook United Nations Law 71 et seqGoogle Scholar; Denis, C, ‘La Résolution 678 (1990) peut-elle légitimer les actions armies menées centre l'Iraq postérieurement à l'adoption de la resolution 687 (1991)?’ (1998) 31 Revue Beige de Droit International 485–525; Wedgwood (n 18) et al.Google Scholar

125 See also per the above position: C Denis (n 124) 495; Franck (n 19) 613; Hofmann, R, ‘International Law and the Use of Military Force against Iraq’ (2002) 45 German Yearbook of International Law 19.Google Scholar

126 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 11 1990). See also relevant analysis in Sicilianos (n 22) 75.Google Scholar

127 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).

128 See with regard to this principle (n 103) and corresponding text.

129 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 04 1991, p 72 et seq. See also Sicilianos (n 22) 103 and Frowein (n 16) 107.Google Scholar

130 See Lobel and Ratner (n 18) 149.

131 See respectively Gottereau, G, ‘Rebondissement d'octobre en Iraq: la resolution 949 du conseil de sécurité (15 octobre 1994)’ (1994) 40 Annuaire Français de Droit International 175–93.Google Scholar

132 See nn 17 and 18 and corresponding text.

133 See S/PV. 4644, 8 11 2002, p 2 et seq and thorough analysis of the relevant travaux in O Corten (n 19) 216 et seq and ND White and PJ Myjer (n 19) 4 et seq, and Hofmann (n 124) 22 etseq.Google Scholar

134 See S/PV. 4644, 8 11 2002, p 3.Google Scholar

135 See McGoldrick, D, ‘From “9–11” to the “Iraq War 2003”’ International Law in an Age of Complexity (Hart Publishing, Oxford, 2004) 62.Google Scholar

136 See (n 131).

137 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 correspondingtext.

138 See in this respect F Nguyen-Roualt (n 18) 843 et seq and further references therein.

139 See Lord Goldsmith (n 10) 812.

140 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.

141 See D McGoldrick (n 135).

142 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). See also in this respect: O Corten (n 19) 212 et seq.

143 See Byers (n 16) 41.