The US administration’s pursuit of the Al-Qaeda organisation and Taliban régime in Afghanistan, responsible for the September 11, 2001 international terrorist attacks, was supported by an international “coalition of the willing” and backed by the full legal authority of UN Security Council Resolutions. The US bid to follow this successful multilateral initiative with similar armed intervention against Saddam Hussein’s government failed to rally support in the Security Council. The US then proceeded to act unilaterally, and with British military support, to invade Iraq.
The problems for contemporary international law and the UN Charter based World Order system posed by the conflicts within the Security Council and the assorted legal claims advanced, such as a revived doctrine of Humanitarian Intervention;
régime change as a justification for intervention; Preemptive military strikes as an exercise in Self-defence; and Multilateralism versus Unilateralism in the exercise of the Peace and Security powers under the UN Charter, are canvassed in the present collection of legal opinions.
Edward McWhinney, Professor of International Law is Member and President (1999-2001) of the Institut de Droit International, sometime Member of the Permanent Court of Arbitration and sometime Member of Parliament and Parliamentary Secretary for Foreign Affairs (Canada). He is a Queen’s Counsel and international legal Consultant and Adviser.
This hard-hitting analysis of the US-driven pre-emptive presents daunting questions arising under contemporary International Law, spawned by conflicts including the lack of an authorizing Security Council resolution, and the proffered US/British claim of legality. […] The author presents his forceful critique of lessons learned and future directions in three phases, marked by successive time periods.'
ASIL Newsletter UN21 Interest Group, June 2005.
Chapter 1. “Linkage” in International Law. From September 11, 2001 Terrorist Attacks to March 20, 2003 US/British Invasion of Iraq,
Chapter 2. International Legal Controls on International Terrorism,
I. International Law-based Responses to the September 11 International Terrorist Attacks,
II. Use of Armed Force under the United Nations Charter,
III. Individual and Collective Self-Defence,
IV. New Anti-Terrorist International Law,
V. International Terrorism and the Law of War (Jus in Bello),
Chapter 3. “Rogue States” and the Claimed Legal Doctrine of Preemptive Strikes,
I. President Bush and the New U.S. National Security Strategy: the Continuing Relevance of the Legal Adviser and International Law,
II. The SALT I, ABM Treaty, 1972 Re-visited,
III. The Legal Basis of the New U.S. National Security Strategy, a. The U.N. Charter and Use-of-Force and Armed Intervention, b. Korean Crisis, 1950, c. Cuban Missile Crisis, 1962, d. Retrospective Examination of NATO Armed Intervention in Yugoslavia, 1999, d.i. Parliamentary Scrutiny, d.ii. “Uniting for Peace” Resolution in U.N. General Assembly, d.iii. U.N. Charter, Article 51: Self-Defense,
IV. Use of Armed Force: Continued Relevance of U.N. Security Council and General Assembly, a. International Law as an Autonomous and Self-Sufficient System, b. An Alternative Doctrinal Approach: Non Liquet, c. Afghanistan, 2001-2: U.S. and Allied Return to the Security Council, d. Contemporary International Law as to Peace and Security and Use of Armed Force, d.i. Armed Force, Armed Intervention, d.ii. Self-Defence under the U.N. Charter: Anticipatory Self-Defense, d.iii. Legal Controls for International Terrorism,
V. Unilateralism vs. Multilateralism, and the Special Case of Iraq: the Law and Power Antinomy,
Chapter 4. Unilateralism vs. Multilateralism: the United Nations Charter Prohibition on the Use-of-Force,
I. The US/British Invasion of Iraq and the United Nations Charter. The Paradox of Unintended Consequences,
II. From the Gulf War (1990-1) and Afghanistan (2001-2) to the Iraq Invasion: US/British Failure to Produce a Legal Common Front against Iraq,
III. The Kosovo, 1999 Precedent: Re-visiting NATO Armed Intervention against Yugoslavia,
IV. The UN Security Council and the Iraq Invasion: the “Pretext” Issue,
V. After the Iraq Invasion: Charter Legal Principle of the Non-Use-of-Force,
VI. Continued Multilateral Cooperation in Security Council-Authorized Antiterrorist Action,
VII. Return to Multilateralism? Back to the U.N. and U.N. Charter-based International Law,
Chapter 5. Unfolding of the Legal Dialectic: Legal Lessons from September 11 and the Iraq Invasion,
I. Law and Fact. The Crucial Rôle of Fact-Finding as Premise for Legal Action,
II. National Decision-Making on War and Peace: Changing Constitutional Balances,
III. Legal Adviser, Legal Academies, Private Pressure Groups and NGOs,
IV. Participatory Democracy: People’s Power as Factor in National Decision-Making,
V. The Leadership Variable: Changing of the Generations,
VI. International Decision-Making Arenas: New Political and Constitutional Balances within the United Nations System,
VII. Who Decides on War and Peace, and on When It Is a Just War?,
VIII. The United States as Lone Superpower: New Challenges and New Opportunities in the Post-Iraq Invasion Period, Appendix: Institut de Droit International: Bruges Declaration on the Use-of-Force and on Belligerent Occupation (September 2, 2003), The Author: Biographical Note, Publications of the Author, As Author, As Joint Author, Editor, Index.