ed091202: No Permission Needed


ed091202: No Permission Needed

Sep 12th, 2002 3 min read
Brett D. Schaefer

Senior Research Fellow in International Regulatory Affairs

Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs at Heritage's Margaret Thatcher Center for Freedom.
President Bush's decision to come before the United Nations and make his case for attacking Iraq was a smart move, diplomatically speaking. But it would be all too easy for some world leaders to misunderstand why he went there.

Some seem to believe that America needs a U.N. Security Council resolution before taking military action against Saddam Hussein. French President Jacques Chirac and German Chancellor Gerhard Schroeder, for example, are among those who claim that an attack on Iraq would be justified only if the Security Council approves it.

They're wrong. America does not need a new Security Council resolution for several reasons. They include:

The Right To Self-Defense.
The right to self-defense is a long-standing principle in international law, and the United Nations charter reflects this. "Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations," the 54-year-old U.N. charter states.

But Iraq hasn't attacked us, some may argue. Yes, but that right to self-defense also incorporates the centuries-old principle of "anticipatory" self-defense in the face of an imminent threat to national security. In the 16th century, for example, the British applied that principle when they attacked Spanish and Portuguese ports in anticipation of an attack by the Spanish. The United States used it in the 1960s to place an embargo on Cuba and prevent Soviet deployment of nuclear missiles there.

The administration has made a similar case for striking Iraq. Saddam Hussein has publicly stated his intention to engage in a war against the West, particularly Israel and the United States. He has already attacked two countries, Iran and Kuwait. He has biological and chemical weapons and has used them on his adversaries, both among his own citizens and in war with Iran. He is developing nuclear weapons. The U.S. government has identified Iraq as a serious threat that justifies military action.

Permission Granted.
America does not need U.N. permission to use its armed forces. Under the Constitution, the authority to determine when it's appropriate for the United States to invoke and exercise its right to use military force in its own defense is vested in the president, as Commander in Chief of the armed forces, and Congress, which has authority to raise and support armies and to declare war. No treaty, including the U.N. charter, can redistribute this authority or give an international organization a veto over U.S. actions otherwise lawful and fully in accordance with the Constitution.

Regardless, America already has U.N. "permission" to act under existing Security Council resolutions. Security Council Resolution 678, passed on Nov. 29, 1990, authorizes "member states co-operating with the Government of Kuwait ... to use all necessary means" to (1) enact Security Council Resolution 660 and other resolutions calling for the end of Iraq's occupation of Kuwait and withdrawal of Iraqi forces from Kuwaiti territory and (2) "restore international peace and security in the area."

U.S.-led forces in the Persian Gulf War accomplished the first objective swiftly, but the second never has been achieved. U.S. and allied forces have been in nearly constant conflict with Iraqi forces in the so-called "no-fly zone" since Iraq's aggression against Kuwait was repelled. Resolution 678 has not been rescinded or nullified by succeeding resolutions. Its authorization of the use of force against and in Iraq remains in effect.

Further, Iraq's refusal to allow U.N. weapons inspectors to fulfill their mandate since 1998 is a violation of its 1991 cease-fire agreement.

Those who argue for more weapons inspections are in denial over Iraq's refusal to observe existing resolutions mandating that U.N. inspectors be permitted to operate freely in Iraq. Saddam has frustrated every effort to conduct these inspections in the past, and there's no reason to believe that future inspections will be more successful. His most recent letter to the United Nations states that he wants more discussion before resuming the inspections, which ended four years ago over his intransigent obstruction.

Clearly, those who seek to constrain U.S. military action in Iraq with arguments about obtaining yet another Security Council resolution ignore the facts of this issue. America may choose to seek additional support from the United Nations and its allies, but it does not need to do so.

Brett D. Schaefer is Jay Kingham fellow in international regulatory affairs in the Center for International Trade and Economics at The Heritage Foundation.