¹ Charter of the United Nations, June 26, 1945, Can. T.S. 1945 No. 7 (in force October 24, 1945) [hereinafter UN Charter].

² Macdonald, R. St. J., “Changing Relations between the International Court ofJus-tice and the Security Council of the United Nations” (1993) 31 Can. YB. Int’l L. 3.Google Scholar

³ Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America; Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of April 14, 1992, [1992] I.C.J. Rep. 114.

⁴ Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on September 23, 1971, (1971) 10 I.L.M. 1151.

⁵ Security Council Resolution 748, adopted March 31, 1992, accessible at ˂http://www.un.org/documents/sc/res/ 1992/scres92.htm˃.

⁶ Macdonald, supra note 2 at 20–21.

⁷ Ibid. at 5.

⁸ United States Diplomatic and Consular Staffin Tehran (United States of America v. Iran), [1980] I.C.J. Rep. 3 [hereinafter Tehran].

⁹ Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, [ 1984] I.C.J. Rep. 392 [hereinafter Nicaragua].

¹⁰ Tehran, supra note 8 at 21–22; Nicaragua, supra note 9 at 433–35.

¹¹ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of September 13, 1993, [1993] I.C.J. Rep. 325.

¹² See especially Macdonald, supra note 2 at 18–20.

¹³ Ibid. at 19.

¹⁴ “Accepting for the moment that, perhaps, no meaningful philosophical distinction can be made between law and politics, our institutional experience tells us nevertheless that some matters are considered to be appropriate for judicial and others for political determination.” Ibid. at 7.

¹⁵ UN Charter, supra note 1, Article 24(1).

¹⁶ Macdonald, supra note 2 at 17–20.

¹⁷ Ibid. at 31–32.

¹⁸ Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America; Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, [1998] I.C.J. Rep. 115.

¹⁹ Macdonald, supra note 2 at 29.

²⁰ Ibid. at 29–30.

²¹ Ibid. at 30.

²² For example, “[i]f the Security Council is to be allowed to invoke its extensive powers under Chapter 7 of the Charter to override the legal rights of a state, this is a fact that should be openly recognized.” Ibid. at 32.

²³ See, for example, Lauterpacht, E., “The Legal Effects of Illegal Acts of International Organisations” in Cambridge Essays in International Law (London: Stevens, 1965)Google Scholar; Franck, T. M., “The ‘Powers of Appreciation’: Who Is the Ultimate Guardian of U.N. Legality?” (1992) 86 A.J.I.L. 519 Google Scholar; Lowe, V., “Lockerbie – Changing the Rules During the Game” (1992) 51 Camb. L.J. 408 CrossRefGoogle Scholar; McWhinney, E., “The International Court as Emerging Constitutional Court and the Co-ordinate UN Institutions (Especially the Security Council): Implications of the Aerial Incident at Lockerbie” (1992) Can. YB. Int’l L. 261 Google Scholar; Reisman, W. M., “The Constitutional Crisis in the United Nations” (1993) 87 A.J.I.L. 83 Google Scholar; Watson, G. R., “Constitution-alism, Judicial Review, and the World Court” (1993) 34 Harv. Int’l L.J. 1 Google Scholar; Gowlland-Debbas, V., “The Relationship between the International Court ofJustice and the Security Council in Light of the Lockerbie Case” (1994) 88 A.J.I.L. 643 Google Scholar; Alvarez, J. E., “Judging the Security Council” (1996) 90 A.J.I.L. 1 Google Scholar; Akande, D., “The International Court ofJustice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?” (1997) 46 I.C.L.Q. 309 CrossRefGoogle Scholar; and Fassbender, B., “Quis Judicabit? The Security Council, Its Powers and its Legal Control” (2000) 11 E.J.I.L. 219.Google Scholar

²⁴ Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, July 1, 2000, accessible at ˂http:// www.icj-cij.org/icjwww/idocket/ico/icoframe.htm˃.

²⁵ Statute of the International Criminal Court, July 17, 1998, UN Doc. A/Conf. 183/9, accessible at ˂http://-www.un.org/law/icc/statute/romefra.htm, articles 13 , 16˃ [hereinafter Rome Statute].

²⁶ See, for example, Marc Grossman (American under-secretary for political affairs), “American Foreign Policy and the International Criminal Court: Remarks to the Center for Strategic and International Studies,” May 6, 2002, accessible at ˂http://www.state.gov/p/9949.htm˃, in which Grossman announces the American government’s decision to withdraw its signature of the Rome Statute on such grounds.

²⁷ Macdonald, supra note 2 at 5.

²⁸ Scott, C., “Interpreting Intervention” (2001) 39 Can. Y.B. Int’l L. 333 Google Scholar. On the emerging “doctrine of implied Security Council authorization,” see also Gray, C., “From Unity to Polarization” (2002) 13 E.J.I.L. 1 at 8–13.Google Scholar

²⁹ Scott cites, as other elements relied upon to build the case for implicit authorization, statements made by the presidency of the Council, and even statements made by the Secretary-General. Scott, supra note 28 at 340–44.

³⁰ “As such, what we may be witnessing … is a simultaneous re-interpretation of the Charter’s premises through a Security Council practice that has begun to condone, even embrace, the possibility of treating Security Council resolutions as containing implicit authorizations to use force.” Ibid. at 346.

³¹ Security Council [hereinafter SC] Resolution 1373, adopted September 28, 2001, accessible at ˂http://wvww.un.org/Docs/scres/2001/sc2001.htm˃. See M. Byers, “Terrorism, the Use of Force and International Law after 11 September” (2002) 51 Int’l & Comp. L.Q. 401 at 401-3. Byers refers to several such interpretations given to Resolution 1373, including by British Prime Minister Tony Blair (at 402, note 8).

³² SC Resolution 1368, adopted September 12, 2001, accessible at ˂http://www.un.org/Docs/scres/2001/sc2001.htm˃. See also Byers, supra note 31 at 403.

³³ SC Resolution 678, adopted November 29, 1990, accessible at ˂http://www.un.org/Docs/scres/1990/scres90.htm˃.

³⁴ SC Resolution 687, adopted April 3, 1991 , accessible at ˂http://www.un.org/Docs/scres/1991/scres91.htm˃.

³⁵ SC Resolution 1441, adopted November 8, 2002, accessible at ˂http://www.un.org/Docs/scres/2002/sc2002.htm˃.

³⁶ “Plainly” because the required majority of votes endorsing such action could not be mustered by the sponsors of a resolution setting out such an explicit autho-rization - hence its withdrawal - and, in any event, because the French had made plain their intention of vetoing any such authorization. See, for example, “Chirac Says France Will Veto U.N. Resolution on Iraq,” PBS Online Newshour, March 10, 2003, accessible at ˂http://www.pbs.org/newshour/updates/iraq_03-10-03.html˃.

³⁷ For the clearest and most explicit articulation of this argument, see the legal opinion tabled by Lord Goldsmith, the UK Attorney General, in the British House of Commons on March 18, 2003, in answer to a question concerning the legality of military action in Iraq: (UK) Foreign and Commonwealth Office, “Iraq: Legal Basis for the Use of Force,” March 17, 2003, accessible at ˂http:// www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/Show Page&c=Page&cid=1007029394383&a=KArticle&aid=1047661460790˃.

³⁸ Scott, supra note 28 at 339–40.

³⁹ SC Resolution 687, supra note 34 at para. 34.

⁴⁰ See Byers, M., “The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq” (2002) 13 E.J.I.L. 21 at 24.Google Scholar

⁴¹ SC Resolution 1441, supra note 35 at paras. 2, 13.

⁴² See the opinion given by the UK Foreign and Commonwealth Office, supra note 37.

⁴³ For example, Scott envisions an enhanced role for the General Assembly in lending legitimacy to reinterpretations of SC resolutions, and to the overall process of articulating evolving understandings of the UN Charter’s peace and security process itself, at least in the context of humanitarian interventions. Scott, supra note 28 at 362–68. However, Scott also acknowledges his own “profound misgivings about the process of Charter reinterpretation as it is currently evolving due to the overbearing role of the United States, and the West in general, and due to the relative lack of critical self-awareness of many states that their silence and pragmatic acquiescence is feeding into a normative realignment of Charter peace and security law” (at 336).

⁴⁴ SC Resolution 687, supra note 34.

⁴⁵ Security Council Resolution 1154, adopted March 2, 1998, accessible at ˂http://www.un.org/Docs/scres/1998/scres98.htm˃.

⁴⁶ See Fassbender, B., “Uncertain Steps into a Post-Cold War World: The Role and Functioning of the UN Security Council after a Decade of Measures against Iraq” (2002) 13 E.J.I.L. 273 at 277.Google Scholar

⁴⁷ Scott, supra note 28 at 337–38.

⁴⁸ The International Court of Justice [hereinafter ICJ] has in fact articulated at least general legal standards for the interpretation of Security Council resolutions, albeit in a different context. In its Advisory Opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution 276 (1970), [1971] I.C.J. Rep. 16 at 53, the ICJ stated: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have in fact been exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.” On the inter-pretation of Security Council resolutions more generally, see Byers, supra note 40 at 23–27.

⁴⁹ UN Charter, supra note 1, Article 10 [emphasis added].

⁵⁰ Ibid., Article 12(1).

⁵¹ Ibid., Article 96(1).

⁵² Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] I.C.J. Rep. 226 at para. 16: “The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs.”

⁵³ See text accompanying note 48.

⁵⁴ See, for example, the opinion given by the UK Foreign and Commonwealth Office, supra note 37. The opinion is clearly structured as a legal argument and indeed is titled “Iraq: Legal Basis for the Use of Force.”

⁵⁵ Curiously, Scott dismisses rather summarily the potential role of the ICJ in Wlling the need for “authoritative new interpretations that are not necessarily consensus ones and that, indeed, can be argued to be legally correct in the face of resistance by powerful actors.” Scott, supra note 28 at 353. He does so on the basis simply that the ICJ does not currently play such a role (at 353). The same might be said of the General Assembly. However, neither observation provides a compelling reason why such organs cannot and ought not take on such a role if appropriate opportunities arise within the governing framework of the UN Charter.

⁵⁶ Macdonald, supra note 2 at 18–20.

⁵⁷ See text accompanying notes 6–13 and 24.

⁵⁸ The consensus achieved in adopting Resolution 1441, for example, masked fundamental differences of opinion, even among permanent members of the Security Council, as to the “automaticity” of the “serious consequences” threatened in paragraph 13. The result was the diplomatic Wasco in the Security Council in the weeks leading up to the March 2003 action by the United States and United Kingdom in Iraq.

⁵⁹ See Byers, supra note 40 at 27: “The interpretation of Security Council resolutions presents even more scope for the advancement of differing views than does the interpretation of treaties. Council resolutions are adopted by an executive organ rather than contractually agreed, the academic literature concerning their interpretation is extremely thin, and the Vienna Convention does not apply, at least not directly.”

⁶⁰ Byers, supra note 31; and Byers, supra note 40.

⁶¹ Scott, supra note 28.

⁶² Gray, supra note 28.

⁶³ Fassbender, supra note 46.

⁶⁴ UN Charter, supra note 1, Article 2(1).