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Law and Force after Iraq: A Transitional Moment Author(s): Jane E. Stromseth Source: The American

Law and Force after Iraq: A Transitional Moment Author(s): Jane E. Stromseth Source: The American Journal of International Law, Vol. 97, No. 3 (Jul., 2003), pp. 628-642 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/3109848

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628628

THE

THE

AMERICANJOURNAL

AMERICANJOURNAL OF

INTERNATIONALLAW

OF INTERNATIONALLAW

[Vol.[Vol. 97:62897:628

essential

and the failure of

essential public goods, and the aggravation of inequality in some places and the failure of

of

public goods,

and the

aggravation

inequality

in some

places

growth in others. When the sources of threats are seen as lying beyond the reach of public

growth

public

in others. When the sources of threats are seen as

lying beyond

the reach of

policy or the political capacity to raise and apply the resources necessary for their ameliora-

policy

apply

tion,

the

ond

ond

tion,

Those committed to shrinking the

or the

political capacity

linked to the

first,

to raise and

the resources

necessary

for their ameliora-

shrinking

one tends to focus on those

one tends to focus on those

symptoms that can be

symptoms

that can be addressed with familiarmeans. A sec-

addressed with familiarmeans. A sec-

factor, linked

factor,

to the first, is the obstacle of ideology.

ideology.

is the obstacle of

Those committed to

and monitor

capacity of governments to mitigate market failures, protect the vulnerable, and monitor

private actors-those,

private

actors-those,

capacity

of

governments

to

mitigate

who

market

failures,

protect

the

vulnerable,

in

in short, who disparagepublic authority-are

disparagepublic authority-are

short,

to serve

poorly equipped

poorly equipped to serve

as the architects of a global governance system able to reduce the nihilistic impulse by help-

impulse by help-

ing

ing to drain its sources.

as the architects of a

global governance system

able to reduce the nihilistic

to drain its sources.

In terms of the

In terms of the global, notjust the American, interest, there was a case for regime change

American, interest, there was a case for regime change

global, notjust

the

in Iraq. But outside the framework of the United Nations, the change could not be accom-

could not be accom-

plished

plished

it has

it has

in Iraq. But outside the framework of the United Nations, the change

in

in a

a

way that

way

that would be

would be widely perceived as legitimate. Without that perception,

perception,

widely perceived

as

legitimate.

Without that

proven very difficult to marshal the human and material resources required to minimize the

to minimize the

humanitarian fallout of invasion and

country

and to establish the trusteeship the country

humanitarian fallout of invasion and occupation

proven very

difficult to marshal the human and material resources

occupation and to

establish the

required

trusteeship

the

demonstrates

requires if it is to be positively transformed by the experience. Above all, Iraq demonstrates

the harmful absence of effective

the harmful absence of effective governance institutions based on a historicallyunparalleled

partnership

partnership

historicallyunparalleled

requires

if it is to be

of the

the

of

positively

states.

transformed

by

governance

the

experience.

Above

all,

Iraq

institutions based on a

its muscles

Iraq,

Iraq, the

major states. Having

Having

major

in

flexed its muscles in

flexed

the United Stateshas added

United Stateshas added

to the

to the capital available for drawing regional powers into the creation of an institution that

into the creation of an institution that

capital

available for

drawing regional powers

would prescribe standards of responsible behavior applicable to all states and monitor and

would prescribe standards of responsible behavior applicable

to all states and monitor and

induce

induce compliance. For after the Iraqwake-up call sent to other nations by the United

an offer of

an offer of self-restraint, that is, a willingness to compromise on tacticsand strategies and even

some

assets.

some ends, adds value to all of Washington's other leadership assets.

and even

compliance.

ends,

For after the

Iraqwake-up

willingness

to

Washington's

call sent to other nations

by

compromise

on tacticsand

other

leadership

the United

strategies

States,

States,

self-restraint, that is,

a

adds value to all of

Not long after 9/11,

Not

9/11,

long

after

in a private meeting with academic leaders, a high official of the U.S.

official of the U.S.

in a

private meeting

with academic

leaders,

a

high

unilat-

government rejected

rejected

eral in its approach to international relations. "Lookat all the coalitions we have formed,"

formed,"

eral in its

policy was peculiarly unilat-

government

the

the

charge

charge

Bush administration's

that the Bush administration's

that the

policy

was

peculiarly

approach

to international relations. "Lookat all the coalitions we have

the official said. "Weare not

opposed to multilateralism [as such]; what we oppose is lowest

the official said. "Weare not opposed to multilateralism [as such]; what we oppose is lowest

common denominator multilateralism."l8It is clear that the world now requires decision-

and,

making processes

making processes more frankly hierarchical, less sensitive to the claims of sovereignty, and,

decision-

common denominator multilateralism."l8It is clear that the world now

requires

more

frankly

hierarchical,

less sensitive to the claims of

sovereignty,

more decisive and

more decisive and expeditious than has.been the norm within the

than has.been the norm within the

United Nations framework. But it is equally clear that those processes cannot possibly be

be

United Nations framework. But it is

as a

likely consequence,

as a likely consequence,

expeditious

equally

clear that those

processes

cannot

possibly

constructed, whether within or without that framework, if the United States or anyone else

treats its

treats its preferences

else

constructed, whether within or without that framework,

if the United States or

anyone

preferences

denominator.

as the only denominator.

as the

only

TOMJ. FARER*

TOMJ. FARER*

LAWAND FORCEAFTER

LAWAND FORCEAFTER IRAQ: A

IRAQ:

A TRANSITIONALMOMENT

TRANSITIONALMOMENT

What

What

impact

impact

will

will the

the

Iraq warof

Iraq

warof 2003 have on international law

2003

have

on

international

law governing

governing

the use of force

the use of force

and on the future of the United Nations Security Council? Some commentators have pro-

claimed that the

claimed that the military intervention led by the United States amounted to the "death"of

to the "death"of

the UN Charterand the end of "the grand attempt to subject the use of force to the rule of

the use of force to the rule of

law."' The

threats

law."'

antag-

the face of French-U.S. antag-

the UN Charterand the end of "the

and on the future of the United Nations

Security Council? Some commentators have pro-

military

intervention led

by

the United States amounted

grand attempt to subject

The

Security Council's failure to reach agreement-in

agreement-in

Security

Council's failure to reach

end,

they argue,

the face of French-U.S.

addressing major

onisms-spells

onisms-spells

the

the end, they argue, of an effective Council role in addressing major threats

of an effective Council role in

'8The

'8The author was present at this not-for-attribution meeting.

meeting.

1

1

author was

MichaelJ.

MichaelJ.

at

89,

Glennon,

Glennon,

deeply

present

divided

at this not-for-attribution

Security

Council wasthe

Anthony

*Of

the Board of Editors.

*Of the Board of Editors.

war

Iraq war

in the face of a deeply divided Security Council wasthe culmination, Glennon argues,

the UN Charter. Id. at 22-23. Anthony Arend also contends that "[flor all practical purposes, the UN Charter

frameworkis dead."

frameworkis dead." Anthony Clark Arend, InternationalLawand thePreemptive Use ofMilitay Force, WASH. Q., Spring

2003,

the UN Charter

the UN Charter.

in the face of a

Why the Security Council Failed, FOREIGN AFF., May/June

Why the Security Council Failed, FOREIGN AFF., May/June

2003,

2003,

at

16-18,

at 16-18,

24. The

24. The

Iraq

culmination,

of earlier trends that eroded

Glennon argues, of earlier trends that eroded

Id. at 22-23.

Anthony

Arend also contends that

"[flor

all

practical purposes,

Clark

Arend, InternationalLawand

thePreemptive Use ofMilitay

Force, WASH. Q., Spring

101.

2003, at 89, 101.

2003]

AGORA:FUTURE IMPLICATIONSOF THE IRAQ CONFLICT

629

to peace and security.2My ownviewis that it is premature to pronounce the "death"of the UN Charteror to give up on future prospects for Security Council agreement on the use of force. We are, nevertheless, at a difficult and precarious transitional moment in the international legal system governing the use of force, and the stark tensions reflected in the differences

over Iraq are symptomatic of hard

the rules and the system need refining and reform. Success in doing so will require imagina-

tion and much greater willingness by policy makers to consider law's potential role, not as a barrier to necessary action, but asa means to enhance global security in the face of emerging threats.In seeking such reform, itwill be important to build upon the realismof the Charter's founders, who combined rules governing the use of force with a clear commitment to credible enforcement action in response to threats to peace and security. Without question, the stark disagreements between key Security Council members over

the 1990s and cul-

minating in the 2003 war-do

how to respond

represent significantchallenges for international lawand insti-

tutions. But, as I will argue, the UN Charterstill provides a viable and stabilizing framework

for addressing threats to peace and security. It is far too early to announce the death of the UN Charter law regarding the use of force, for three reasons.

problems that maypersist for the foreseeable future. Both

to Iraq's violations of Security Council resolutions-during

I. RESOLUTION 1441

IN LIGHT OF EARLIERPRACTICE

First, the question of legal authority for using force in Iraq is a much closer one than is

sometimes acknowledged. True,

Council as its failure to adopt the ill-fated"second resolution"made clear.3Nor was there an

actual or imminent armed attack by Iraq that would place a forcible response clearly within

well-acceptedparameters for self-defense.4However, based on the language of Security Coun- cil Resolution 1441 and the resolutions and practice that preceded it, the United States and its allies could plausibly argue that the Security Council had acknowledged the seriousness

of the situation and had recognized-or

ory that force could be used in response to Iraq's "materialbreach"of the disarmament obli- gations imposed by the Security Council after the 1991 Gulf war.The story on this issue, in any event, is a complicated one. The United States and Britain maintained throughout the 1990s that Iraq's clear failure to comply with the Gulfwarcease-firetermsin Resolution 687 constituted a "materialbreach" that reactivatedResolution 678's authorization to use force.5 Invoking this theory, the United

the Iraq war was not explicitly authorized by the Security

at least had agreed to disagree over-the

legal the-

2 Glennon, supra note 1, at 18-21, 25-26. The

Security Council's disagreement over Iraq, Glennon argues, reflects

deeper structural, political, and cultural differences that will continue to prevent Council unity in the future.

3

The United

States, Britain, and Spain

support.

withdrew the so-called second resolution in the face of a French threat

Even the second resolution had failed to take the final

Iraq

fell short of an explicit authorization of force.

to disarm afforded by Resolution

opportunity

Iraq, N.Y. TIMES, Feb. 25, 2003, at A14.

to veto it and a broader lack of

It would,

1441. SeeU.S.-British Draft Resolution Stating Positionon

however, have affirmed that

Neither the United Iraq. SeeUKAttorney

available at<http://www.ukonline.gov.uk>;

ment of Foreign

available at<http://www.smh.com.au/articles/2003/03/19/1047749818043.html>.

voke its inherent the UN

4

Kingdom General Lord Peter

Trade,

nor Australiainvoked

Henry

self-defense as a legaljustification for military action against

LegalBasisfor

Attorney

Use

ofForceAgainstIraq (Mar. 17,2003),

Department and the Depart-

General's

of Force Against Iraq (Mar. 18, 2003),

Nor did the United Statesin- it submitted to

of the United States

legaljustification

Goldsmith,

seealsothe Australian

Affairs and

Memorandum of Advice on the Use

right Council. Letter Dated 20 March 2003 from the

of self-defense under Article 51 of the UN Charter in the

Security

Permanent Representative

ofAmerica to the United NationsAddressed to the President

(arguing

678

to the nation on the eve of war, the United Statesdeclined

that" [t]he actions

being

taken are authorized under

It is

significant

that

despite

(1990) and 687 (1991).").

of the Security

existing

references to

Council,

Council resolutions,

preemption

UN

Doc. S/2003/351

including

(2003)

its resolutions

speech

in President Bush's

to present such a legal

rationale to the Security Council.

5 SeeJules Lobel &Michael Ratner,

Bypassing the Security Council: Ambiguous Authorizationsto Use Force, Cease-Fires

and

lution 687:

the IraqiInspectionRegime, 93 AJIL 124,150-52

(1999);

Ruth

Wedgwood,

TheEnforcementofSecurity CouncilReso-

724

(1998).

TheThreat of Force AgainstIraq'sWeaponsof

Mass Destruction, 92 AJIL

630 THE AMERICANJOURNAL OF INTERNATIONALLAW

[Vol. 97:628

States and Britain-joined by France-used force against Iraq in 1993.6In 1998, after the

Security Council found Iraq in "flagrant violation of

Britain again acted on this theory.7 To be sure, other Security Council members raised chal-

coalition of

willing states a right to use force to disarm Iraq wasa hotly debated issue in the negotiations

over Resolution 1441. The United States and Britain sought a resolution that would maxi-

mize the chances of effective coercive diplomacy to disarm Iraq and that would not require

a second resolution to authorize force. France sought

tial use of force and worked to ensure an additional Security Council opportunity to deter-

to avoid "automaticity"regardingpoten-

lenges to this view, and the question whether a "materialbreach" by Iraq gave a

resolution 687," the United States and

mine what response should follow from Iraqi noncompliance.

Adopted

unanimously, Resolution 1441wasawelcome development after the debilitating

divisiveness that plagued multilateral diplomacy toward Iraqduring the mid- and late 1990s

and eroded the Security Council's credibility. Resolution to comply with its disarmament obligations" and "set up

the aim of bringing to full and verified completion the disarmament process" established by

Resolution 687 and subsequent Council resolutions.8 But it was the clear U.S. threat to dis- arm Saddam Hussein by force if necessary that provided the backbone that gave this effort

at coercive diplomacy a chance. Yet, on the

lution 1441 provided something to each of the contending camps. Well aware of U.S. and British arguments and precedents based on their view that they

possessed legal authority

Council expressly declared in Resolution 1441 that "Iraq has been and remains in material breach" of its disarmament obligations under Resolution 687 and that any Iraqi failures to comply with Resolution 1441 would "constitute a further material breach."9The Resolution also recalled the Council's repeated warnings to Iraq "thatit will face serious consequences asa result of its continued violation of its obligations."'? But, in light of French and other views

against "automaticity," Resolution 1441 also provided that Iraq's failure "at any time to com-

ply with, and cooperate fully in the implementation of, this resolution

to the Council for assessment."'l Moreover, the Security Council would "convene immedi-

ately

relevant Council resolutions in order to secure international peace and security."12 While a full public account of the understandingsamong Security Council members regard- ing Resolution 1441 has yet to be disclosed, the text of Resolution 1441 can fairly be read as an

agreement to disagree over whether an additional Security Council resolution authorizing force wasneeded in the event of Iraqinoncompliance. FrenchAmbassadorto the United States Jean-David Levittehas recently admitted as much in recounting how he advised against intro- ducing the "secondresolution"that the British,Americans, and Spanishsought on Iraq. "Weeks before it was tabled," AmbassadorLevitte has stated, "Iwent to the State Department and to

1441 offered Iraq "afinal opportunity an enhanced inspection regime with

central legal issue of authority to use force, Reso-

to use force in response to Iraqi "material breach," the Security

will be reported

in order to consider the situation and the need for full compliance with all of the

6 Lobel & Ratner, supra

note 5, at 150-51. This use of force wasin

UN secretary-generalsubsequently

Security

response to Iraq's obstruction of inspections

military

and was preceded by statements by the president of the Security Council denouncing Iraq's actions as a "material

warning of "serious consequences" for "continueddefiance."Seeid.at 151; Wedgwood,

action "wascarried out in accor-

supra note 5, at 727. The

dance with a mandate from the

resolutions of the Security Council

Transcript of Press Conference by

breach"of Resolution 687 and

stated that the

Council under resolution 678 (1991)" and "wasin accordance with the

and the Charter of the United Nations."

Secretary-General,

Doc. SG/SM/4902/Rev.l,

Boutros Boutros-Ghali, Following Diplomatic Press Club Luncheon in Parison 14January, UN

at 1 (1993).

7 SC Res. 1205, para. 1 (Nov. 5, 1998); Lobel & Ratner, supra note 5, at 154; see alsoWedgwood, supra note 5, at

726-28.

8 SC Res. 1441, paras. 1-2 (Nov. 8, 2002).

9 Id, paras.

1, 4.

Id., para. 13.

para.

para. 12.

Id.,

4.

2 Id.,

2003]

AGORA:FUTURE IMPLICATIONSOF THE IRAQ CONFLICT

631

the White House to say, don't do it. First, because you'll split the Council and second, because you don't need it. Let's agree to disagree between gentlemen, aswe did on Kosovo, before the

warin Kosovo

negotiated paragraph12-expressly providedonly for a Security Council meeting to "consider" Iraqinoncompliance. Nevertheless, the British, as well as other U.S. allies, viewed a "second resolution" as extremely important politically; they wanted to make a concerted final effort

to achieve Council consensus, and few would dispute that express Council authorization would have been far preferablelegally aswell. Ratherthan follow AmbassadorLevitte's sugges- tion-which no doubt would also havebeen preferred bymany other Council members-the United States supported its key ally, Britain, in submitting the second resolution.l4 To the very end, the Britishworked hard to make the Charter system function effectively

as they sought to secure a political consensus on the Security Council, which clearly would have enhanced the legitimacy of any subsequent action. Prime Minister Tony Blair and his

Foreign SecretaryJack Straw argued eloquently for Council agreement in the face of a non- compliant Iraq; a credible threat of force by a unified Security Council, they argued, offered the best chance to compel Iraqi disarmament peacefully through coercive diplomacy. But France's adamant refusal to authorize the use of force under any circumstances and U.S. unwillingness to take the newly revived inspections through another round made Blair'sefforts

to

to the House of Commons on the eve of war, Blair argued the case for military action and its consistency with the Security Council's agreed demands on Iraq and the purposes of the United Nations.'5 The Council's repeated failure to stand up to Saddam Hussein's noncom-

pliance undercut its credibility, Blair argued, and sent a dangerous message of irresolution

would do more dam-

to Saddam and other tyrants: "[T] o will the ends but not the means

age in the long term to the UN than any other course."16In short, those supporting the use of force, like those opposing it, viewed themselves as acting consistently with Resolution 1441 and with the purposes of the UN Charter, in spite of their inability to find common ground. And the ultimate failure to secure agreement on a "second resolution," while deeply regrettable,17 did not deprive the military action thatfollowed of a plausiblelegaljustification.

"13

Moreover, Resolution 1441-in

the carefully worded and painstakingly

charta middle course

ultimatelyunavailing. In the end, in a powerful and eloquent speech

II. THE CHARTER'SCORESTILLHOLDS

Despite the intense discord on the Security Council over Iraq, it is premature to

announce

the death of the UN Charterfor a second reason aswell. Whatever disagreements there may

'3Jean-David Levitte, France,

Humanitarian

Germany and the U.S.: Putting the Pieces Back Together, Address at the Council

In Kosovo,

response to the deteriorating humanitarian situation there without seeking Council

on Foreign Relations 14 (Mar.25, 2003), available at<http://www.cfr.org/publication.php?id=5774>.

NATO members used force in

authorization in the face of the

Rethinking

POLITICALDILEMMAS 234

long-standing position on authority to use force under Resolu-

tion 678 in response to Iraqi "materialbreach" of 687 and subsequent resolutions, simply affirmed that Iraq had

failed to take the final opportunity afforded by Resolution 1441 to comply with its disarmament obligations. See

supra note 3.

15 Tony Blair,PMStatement OpeningIraqDebate (Mar.18,2003), available at<http://www.number-10.gov.uk/output/

Page3294.asp>.

publicly stated opposition

Change,

of Russia and China. SeeJane E. Stromseth,

Intervention: The CaseforIncremental

in HUMANITARIAN INTERVENTION:ETHICAL,LEGAL, AND

(J. L. Holzgrefe & Robert

O. Keohane eds. 2003).

'4Even that resolution, consistent with Britain's

16 Id. at 10. Blair continued:

I have come to the conclusion after much reluctance that the greater danger to the UN is inaction: that to pass

Resolution 1441 and then refuse to enforce it would

confirming

path

do the most deadly damage to the UN's future strength,

it as an instrument of diplomacy but not of action, forcing nations down the very unilateralist

we wish to avoid.

Id.

17 Whether better

diplomacy

U.S.

Council

Missteps LedtoFailed Diplomacy, WASH.

could have led to

Security

question

POST, Mar. 16, 2003, atA15; Steven R. Weisman,

agreement

is a hard

to answer.SeeGlenn

Kessler & Mike Allen,

A Long, Winding Roadto a Diplomatic Dead End,

N.Y. TIMES, Mar. 17, 2003, at Al.

632 THE AMERICANJOURNAL OF INTERNATIONALLAW

[Vol. 97:628

be around the edges-and there are many-the central core of Article 2(4) is still alive. No

one seriously disputes that wars of territorial expansion and conquest

Article 2(4). This core of agreement wasreflected in the Security Council's condemnation of

Iraq's invasion of Kuwaitin 1990 and North Korea's invasion of South Korea in 1950.18But

there is more. The Charter'snorms-which permit the use of force in self-defense or if autho-

rized by the Security Council-together

torical periods in which force could be used for almost any reason. Together, these norms establishnonintervention as the default rule, with a high burden ofjustification on those who would use force to resolve conflicts.19This default rule serves important stabilizing purposes:

it pushes states to seek to resolve conflicts without resorting to war and it protects different cultures and communities from external intervention. Such a regime provides a positive force

for global stability. By placing the burden ofjustification on those who would resort to force, the law of the

in state decision making. As the late Abram Chayes

eloquently discussed, the law governing force may not yield a simple black-or-white answer, but it can "orient deliberation" and "guide within broad limits."20Statescannot claim a right to go to war for any reason; on the contrary, states know that they must explain and justify their actions internationally in relationship to the Charter'snorms. Moreover, in democratic

statesat least, the knowledge thatan action must bejustified publicly can have important effects

on the decision-making process

during the Cuban missile crisis: " [T] he requirement ofjustification

of choice. There is a continuous feedback between the knowledge that the government will be called upon tojustify its action and the kind of action that can be chosen."21If anything, the need to explain andjustify one's actionsin relationto the Charter'snorms governing force is becoming more important in building effective coalitions with allies whose domestic pub- lics take these norms seriously-as the United States found in working with NATO allies in

Kosovo22and in working with the British and other allies in Iraq.

experience suffusesthe basic process

UN Charter plays an important function

represent a great advance over those of earlier his-

are unlawful under

itself. As

Chayesexplains

based on his firsthand

The issue ofjustification may become increasinglyimportant in an information age in which publics are exposed to broader arrays of critical information and are more easily mobilized.

the clearjustification for using force

if it is in self-defense or if authorized by the Security Council-seems

and understood among informed publics. In both Britainand the United States, for example,

Hussein increased significantly in

public opinion in support of going to war against Saddam

Indeed, the Charter'sbasicnormative content-namely,

to be well accepted

18 For discussion of the UN and U.S. response in the 1991 Gulfwarand in Korea, seeJane E. Stromseth,Rethinking

WarPowers: Congress, the President, and theUnited Nations, 81 GEO.LJ. 597, 621-55

(1993).

'9 For a discussion of the nonintervention rule in the context of the debate over humanitarian intervention, see

Adam Roberts, TheSo-Called

Stromseth,

become obsolete

"Right"of

Humanitarian Intervention, 3 Y.B. INT'LHUM.L. 3, at 6-7, 49-51

put

itwell: "The occasions

indulge

(2000);

supra note 13, at 247.

Louis Henkin

and the causes of warremain. What has

accepted

is the notion that nations are as free to

it as ever, and the death of that notion is

in the Charter."Louis Henkin,

Henkin was writing in response to Thomas M. Franck, WhoKilledArticle 2(4)? or: Changing NormsGoverningtheUse

TheReports oftheDeathofArticle2(4)

Are

GreatlyExaggerated, 65 AJIL 544, 545

(1971).

of Force by

20

States, 64

AJIL

809

(1970).

ABRAM CHAYES, THECUBANMISSILECRISIS:INTERNATIONALCRISESANDTHEROLEOFLAW102

(1974).

Chayes

argues

use

thatinternational law

operates (1) law as constraint, (2)

offorce:

in the

law

following

three

ways to shape and orient decision making regarding

lawas

Lawis

one factor,

asjustification, and (3)

the

organization.

only

many, "constrain" choices, Chayes

priorities, guid[ing] be reconciled with a set of

that influences the consideration of

argues,

not

options.

As

part

of a state's

decision-making process, lawcan shape

as orient[ing] deliberation,

process

of

showing

among

and

by "dictat[ing]

conduct so much

involves a

order[ing]

within broad limits."Id. Law

applicable

norms.

Finally,

asjustification

lawas

that a decision can

in which

organization involvesthe organizationalsetting

a decision occurs, including

as

the allocation

organizations, and international

ofjurisdiction and decision-making power among

As

actors, such

writes, "institutional structures that

different

states, regional

are the

product

21 Id. at 103.

of law can be

organizations.

Chayes

as important as rules,

and more so in organizing and channeling decision." Id.

22 An illuminating discussion is found in the remarks ofJames

in National

from the American

Security Policy,

2002 Annual

Meeting

Society of International

Law library.

Steinberg, Panel on the Role of Legal Oversight

of the American Society of International Law, available on tape

2003]

AGORA:FUTURE IMPLICATIONSOF THE IRAQ CONFLICT

633

the event the Security Council agreed to authorize it.23 Conversely, the absence of Security Council support can dramatically reduce the acceptance of proposed actions by skeptical audiences, as in the case of the reaction to the war in large parts of the Muslim world.

the fact that all the major

protagonists on the Security Council sought to explain and justify their actions within that framework-does not preclude violations, of course, or strong disagreements about what the Charter permits. But, in contrast to earlier eras, the need to explain and justify the use of force in relation to the Charter-and the international lawof armed conflict as well-helps to limit "the scope, the weapons, the duration, [and] the purposes for which force is used."24

The widespread acceptance of the Charter framework-and

III. THE SYSTEMCAN EVOLVE

A third reason why the law of the UN Charter is not "dead"is also appar<