On a US-Constitutional Declaration of War & UN Security Council Resolution 1973, Libyan No-Fly Zone

I want to elaborate upon and clarify issues arising out of the UN No-Fly Zone resolution 1973.

International Law

The United States is a member of the United Nations. It is one of the five permanent members of the UN Security Council. There are two most-main bodies to the UN: The General Assembly and the Security Council. There is also an executive branch under the UN Secretary-General. All full members are members of the General Assembly. That body can pass legislation as it were; however, only the Security Council may decide military matters.

As a permanent member of the Security Council, the US has a veto power over all Security Council resolutions. The other permanent members are Britain, France, Russia, and China. There are fifteen seats at the Security Council, and members of the General Assembly are elected to the Security Council for two-year terms to fill the ten non-permanent seats. Those non-permanent members may propose resolutions and amendments and vote up or down or abstain.

The reason stated by the United Nations for its creation was primarily to prevent another world war and wars in general. Due to certain weaknesses designed into the body, the UN often fails in its mission.

The main document of the UN is the Charter of the United Nations. Chapters V through VIII and XII pertain most directly to the Security Council.

As with any legal document, the provisions are subject to interpretation. Therein, along with state simply refusing to comply, lies the most difficult point. Interpretation is subject to a wide range of views concerning the meanings of terms and the weigh applied to each. As I mentioned in my immediately preceding post: Response to: "Obama on presidential war-making powers - Glenn Greenwald - Salon.com," the spirit versus the letter of the law enters into the discussion. Both the spirit and letter of the law may be used within selective contexts to promote the interpreter's stated point of view at any given moment.

There is also a competition regarding the lines of and powers of nation-state sovereignty vis-à-vis the UN. When it suits a nation, it may or may not advocate for greater individual national rights.

These are all very important issues. I never fail to consider such issues in light of my religious beliefs. The spirit of the law is the most important to me and informs the letter and vice versa. The full meaning of terms is critical to the avoidance of hypocrisy. Unfortunately, the avoidance of hypocrisy is not everyone's, or every nation's, goal. It should be. If it were, there wouldn't be wars.

Keeping "international peace and security" is the first duty of the Security Council. Where and when, etc., international peace and security are impacted is of course subject to interpretation. "International" suggests an issue must be between nation-states; however, conflicts internal to nation-states spill over as international humanitarian-crises, etc. In addition, the UN has certain human rights obligations that pierce national boundaries. The excuse on the part of a national government that it may do whatever it wants to its citizens is not recognized by the UN. Individuals have certain internationally recognized rights that trump nation-state "laws."

There is a legal argument concerning Conventions versus Declarations in international law, whether Declarations are binding or as binding as Conventions. My view is that they are, or ought to be seen as, as binding if not more so.

According to the UN, presently:

There are nine core international human rights treaties [generally recognized as binding upon the signatories], one of which — on enforced disappearance — has not yet entered into force. Since the adoption of the Universal Declaration of Human Rights in 1948, all UN Member States have ratified at least one core international human rights treaty, and 80 percent have ratified four or more.

Nations seek to avoid limitations upon nation-state state powers versus individual-citizen rights. However, it is my contention that nation-states cannot escape the spirit of the law — the understanding of which spirit is evolving.

An example of a nation attempting to avoid the spirit of the law is the US via reservations, understandings, and declarations avoiding both the spirit and letter of the International Covenant on Civil and Political Rights.

In addition to the UN Charter, the other most cited document of the UN is the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations. Where and when does enforcement of international peace and security also require enforcing the Universal Declaration of Human Rights? It becomes an issue concerning Libya. Is the UN to turn a blind eye to whatever is done internally within a nation-state provided such doings do not apparently spill over to other nations, or is the UN obliged by its Declaration to step in to force national governments to live up to the Declaration? If one holds with violent coercion, which violent coercion the UN Charter certainly relies upon, then using the threat of violent enforcement or actually employing violent enforcement can't be used as an argument against the UN stepping in. The issue remains one of sovereignty and individual fundamental human rights. This of course concerns the issue of whole and parts and confederation versus federation and supranational government imposed upon all the nations of the Earth.

...it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
[...]
... no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs....

Now, Muammar Qaddaffi arbitrarily ordered even taking the lives of many who were peacefully protesting his tyrannical oppression. His regime reportedly has engaged in arbitrary and false imprisonment; torture; and cruel, inhuman, degrading treatment and punishment. When asked to redress grievances, Qaddaffi refused.

Everyone has the right to freedom of peaceful assembly....

Qaddaffi ordered or authorized his forces to attack those who had peacefully assemble to protest his rule.

The will of the people shall be the basis of the authority of government....

Qaddaffi ignores this. Of course, he is not alone amongst the "rulers" of the nations in ignoring this basic, collective human right.

Interestingly, even within the US and on a so-called state-rights basis, Wisconsin and many other states are in violation of the international law:

Everyone has the right to form and to join trade unions for the protection of his interests.

It says everyone. It does not exclude public employees.

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Each Libyan is entitled to international order that enforces his or her fundamental rights within Libya. That's at least the spirit of the international law. Those who seek to avoid it, hedge and fudge via and concerning other legal instruments they sign and confess, etc.

Many Security Council members stated that Qaddaffi had lost legitimacy, meaning they no longer recognize him as the rightful, legal governor or ruler of Libya.

The Security Council then demanded the following:

...that the Libyan authorities [Qaddaffi] comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance. [Emphasis added]

The Security Council may authorize the use of military force to enforce international peace and security and to prevent and stop crimes against humanity, genocide, war crimes, and the like. Member states are obligated to help. Sub-agreements to do so are "subject to ratification by the signatory states in accordance with their respective constitutional processes."

This is where the issue of a US Declaration of War against Libya enters in.

US Constitution

Article VI, para 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

You see there that "all Treaties... under the Authority of the United States, shall be the supreme Law of the Land." Therefore, treaties under the UN and to which the US has subjected itself are "the supreme Law of the Land." Therefore, the UN Charter, which is the world's Super Treaty (treaty of treaties), is binding upon the US.

Declarations of War

On account of the immediately preceding point, the adopted resolutions of the Security Council are binding upon the US without the Congress of the US having to take further actions such as declaring war. As mentioned above, the particulars of agreements with other parties to any Security Council UN actions should be handled internally within a member state pursuant to the said state's constitution. Since the US Constitution makes itself bound under the UN Charter, the actions of the US executive pursuant to Security Council resolutions are ipso facto approved by the Congress.

Afghanistan and Iraq

The reason I demanded congressional declarations of war in the cases of Afghanistan and Iraq is because the UN concerning both Afghanistan and Iraq was subverted by the George W. Bush administration. His actions were illegal by reason of the deliberate lies he used to bring about the attacks and invasions of both.

Libya

The Libyan situation is not as it was with Afghanistan or Iraq. The crimes against humanity by Qaddaffi are not much in dispute. He had attacked peaceful protesters over and over and had threatened to show "no mercy" in his planned continued attacks. He was also on the edge of a rather heavily populated Libyan city of some 700 thousand people and about to attack with full force.

Abrogation of Authority

Now, even if one does not agree with my readings of the international law and US Constitution, there still remains the issue that there are no means short of the ballot or insurrection to force the Congress to exercise or not its authority vis-a-vis the President/executive branch. Frankly and technically, the Congress need only act where it does not agree with the President's actions. The silence of Congress never constitutes a permanent waiver of its constitutional powers. Silence should be viewed as assent on a case-by-case basis.

Impeachment and Removal

If the President over steps, the only means to force a remedy that is available under the US Constitution is first impeachment (House) followed by removal (Senate). Even then, a President could refuse to leave office. It would remain for law-enforcement to refuse the President's order at that point and to remove him against his will. It is Congress's prerogative that it (both houses) exercise or not Congressional authority.

Conclusion

I realize this article won't satisfy everyone. It certainly will rub anti-international law types the wrong way.

There is a huge group that sees or wants to be seen as seeing the United Nations as a vast Marxist (violently coercive and socialist) conspiracy, which of course a simple reading of the various UN documents will show is certainly not the case. The UN is decidedly personal-private-property-rights oriented. You may read the documents for yourself.

Others view the UN as a corporatist takeover. However, the UN Charter, etc., is not language conducive to such but quite the contrary. The individual rights expressed in the Universal Declaration run contrary to neoliberal-corporatist economics and its attendant artificially induced unemployment, deprivation, austerity measures, scarcity, and illegal/immoral takings (land and resource grabbing) and the like.

The issue is adhering to the spirit and letter in the spirit and amending the letter where desirable.

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  • Tom Usher

    About Tom Usher

    Employment: 2008 - present, website developer and writer. 2015 - present, insurance broker. Education: Arizona State University, Bachelor of Science in Political Science. City University of Seattle, graduate studies in Public Administration. Volunteerism: 2007 - present, president of the Real Liberal Christian Church and Christian Commons Project.
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