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United Nations and International Law Are Flying High, but Real Test Is to Come : Iraq: If Saddam Hussein holds on to Kuwait and power, will the Security Council vote to use overwhelming force to enforce its own resolutions?

September 02, 1990|David J. Scheffer | David J. Scheffer, an international lawyer, is a senior associate at the Carnegie Endowment for International Peace.

WASHINGTON — The winds of war are swirling across the Arabian sands. If Iraq stands firm, endures the U.N. economic sanctions and takes no action to provoke a massive military response from U.S. or multinational forces, the enforcement of international law either will have to be ventured or forsaken. Since upholding international law closely parallels U.S. objectives in the Middle East, this will become the most critical decision ever to confront the U.N. Security Council in its 45-year history.

International law has clearly triumphed since Saddam Hussein invaded Kuwait on Aug. 2. The Security Council approved, without dissent, five rapid-fire resolutions. Among the most important were the trade embargo of Iraq and the authorization to use appropriate force to make it stick.

Never before, moreover, has international law so centrally underpinned U.S. intervention overseas. Almost daily, the Administration invokes it to condemn Hussein and justify its actions. Two of President Bush's four objectives in sending massive military forces to the Arabian Peninsula and adjacent waters mirror the Security Council's demands: the immediate, complete and unconditional withdrawal of all Iraqi forces from Kuwait and the restoration of Kuwait's legitimate government. If there is anything international law stands for today, it is the illegality of aggression.

The third U.S. objective--security and stability of Saudi Arabia and the Persian Gulf--rests heavily on the legal right of collective self-defense to aid Saudi Arabia and its neighbors. The future availability and price of oil has a lot to do with this U.S. goal, though the Administration no longer offers the oil dilemma, or "our way of life," as a legal rationale for the military deployment.

Bush's fourth objective--"the protection of American citizens abroad"--is embodied in Security Council Resolution 663, which demands release of detained foreigners. It provides important legal support for any future military action Bush may deem necessary to rescue imperiled Americans in Kuwait or Iraq.

A rescue mission could easily become the pretext for full-scale war against Iraq, of course. Such a campaign to enforce international law--including the common objectives of the Security Council and the Administration to roll back the Iraqi army and restore Kuwaiti independence--will require much more legal armor.

For Bush, the ready, but inadequate, solution is simply to invoke collective self-defense as the legal basis for any military action. The President initially sought to justify the U.S.-led interdiction with this rationale, citing a written request from the legitimate government of Kuwait and the Administration's controversial interpretation of the Security Council's trade-sanctions resolution.

This has been Bush's only international-law misstep so far. With the help of Thomas R. Pickering, U.S. ambassador to the United Nations, he quickly regained his footing. If there were no United Nations, perhaps the inherent right of collective self-defense would suffice. But in this case, self-defense principles operate in anything but a vacuum.

The U.N. collective-security train, despite its near-powerless heritage, left the station early in August at high speed. Once on track, the Security Council's enforcement power--especially when it works--can eclipse the "inherent" right of collective self-defense found in Article 51 of the U.N. Charter.

Patience, though, may be required. The United States has no international legal authority to respond with knee-jerk loyalty to every request lodged by Kuwaiti or Saudi authorities, no matter how extreme, simply by claiming: "Under Article 51, we can fire on Iraqi ships, retake Kuwait and bomb Baghdad so long as Kuwati or Saudi officials ask us to do it."

Pickering had little choice but to return to the well of the Security Council to get authority to use military force in the name of the United Nations. Although it took time to sway the Soviets and the Chinese, he succeeded Aug. 25, when the Security Council approved a carefully worded resolution authorizing measures to enforce the trade sanctions.

The next step is far more difficult, but necessary. When the breaking point approaches, the United States must be certain that forces of other nations join U.S. troops in fighting a war with Iraq. Pickering will have to be prepared to return to the Security Council and seek full authority under Article 42, Chapter VII, of the U.N. Charter to enforce international law with speed and overwhelming force. Article 42 enables the Security Council to use armed force "to maintain or restore international peace and security" in the event other means, like the trade sanctions, prove inadequate.

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