Interpreting Security Council Resolutions to unlock unilateral intervention and self-defense.

Source : http://www.legalserviceindia.com
Author : ATUL ALEXANDER
Published on : May 28, 2017


  
ATUL ALEXANDER's Profile and details
LL.M,International Law and Organisations, JRF

Interpreting Security Council Resolutions to unlock unilateral intervention and self-defense.

The understanding of the armed action in Iraq with regard to the various resolutions of the U.N remains distorted and marred for the first time in the history of international law the issue of unilateral intervention by the states and self-defense came to the forge. But, the divergent view on the interpretation of the security council resolution along with the formation of customary international law on the subject matter of humanitarian intervention remains shrouded in mystery, the security council resolutions 678 and 687 which set the terms of ceasefire, was the fundamental issue in hand the contention taken by the United States was it is entitled to use force without the authorization of the security council.

This argument is advanced to justify the 1991 intervention, the paragraph 34 of the Security Council resolution in a way it states that individual member states are precluded from engaging in enforcement action without the approval of the Security Council. The argument placed by the U.S is that of Article. 39 of the UN Charter i.e. implied authorization namely the situation constitutes threat to international peace.

This argument was relied by the U.S also in the case of Kosovo, the interpretation of Article 39 is the precisely the bone of contention, while the U.S has pitched for purposive interpretation a tilt from the conventional attribution of ordinary interpretation as pitched in the 1971 Namibia Advisory opinion, which based its argument on Article 31(1) of the Vienna Convention on Law of Treatise 1969. If one sees the drafting history of V.C.L.T, the U.S delegation represented by Myers McDougal emphasized on a more purposive interpretation which has evolved overtime.

The proposal wrecked a kind of haywire at the heart of international law which sided with textual interpretation of the treaty provision. Similar view-point was taken by the Belgians while interpreting Article 2(4) of the UN charter on intervention in Panama. The interpretation of Security Council resolution unlike the treatise is malleable as it a creation of the executive organ rather than contractual agreement.

The rules concerning interpretation have undergone tremendous change and since the emergence of globalization wherein majority of the armed conflict are of international character., now whether the rule concerning the interpretation of security council resolution have become customary international law remains to be answered. The general accepted norm of state practice have itself has undergone changes, also the rule concerning formations of customary law too parallelly have been marred.

The U.S states that such right exists as customary law in terms of opinion juris. But this did not augur well with the G77 countries which hands down favored humanitarian intervention as illegal. As a general rule it is quite certain amongst the legal fraternity that use of force in the light of unilateral intervention could take place only under the watchful eyes of the security council, the in landmark dictum of Nicaragua Case, the world court explicitly prohibited use of force.

The western bloc on the one hand accepts the intervention in Iraq, similar question that arises is the issue of self-defense, here one has to analyse Article 51 of the UN charter which envisages that self-defense is permissible in case of armed attack should have taken place in order to exercise the right.

The extent of the right to self-defense differs from country to country the western bloc favor a more physical act, the other side into the General Assembly resolution. Numerous authors point out to the fact that, the unilateral intervention by states would hamper the sovereignty and the existing customary rule i.e. use of force. The current position is the rules concerning treaty interpretation and formation of customary international law have transcended the regime of international which requires de-mystification