Supreme Court Rules on Tied Security Council Vote, Authorizes Use of Force in Iraq

SUPREME COURT RULES ON TIED SECURITY COUNCIL VOTE, AUTHORIZES USE OF FORCE IN IRAQ

"No matter what the whip count is, we’re calling for the vote."

— President George W. Bush, Thu 06 Mar 2003, on whether the U.S. would call for a vote on a draft resolution implicitly authorizing an attack on Iraq without assurances of having the nine votes necessary to pass.

MARCH 15, 2003 | WASHINGTON (AP) — In an unprecedented expansion of international jurisprudence, the U.S. Supreme Court today ruled today that "there was insufficient time to affect a legal recount" of Thursday’s tied U.N. Security Council vote and ordered the United Nations to adopt Resolution 1442, authorizing the United States and other nations to use force to compel Iraq to disarm.

The U.N. Security Council vote on the draft resolution proposed by the U.S., U.K., and Spain was deadlocked on Thursday with six votes in support of the resolution, six against, and three member nations failing to appear and vote. In support of the resolution were: the United States, the United Kingdom, Bulgaria, Guinea, Spain, and Syria. Opposed to the resolution were: Angola, Cameroon, Chile, Germany, Mexico, and Pakistan. Failing to appear were: China, France, and Russia.

Pursuant to Article 27, Chapter 5 of the U.N. Charter, the failure of the resolution to receive nine affirmative votes should have resulted in the rejection of the resolution. However, Ambassador Mamady Traore’ of Guinea (who currently holds the rotating presidency of the Security Council) asserted that "the failure of France, Russia, and China to appear at the Security Council and vote leaves open the possibility that they would have supported the resolution," and recorded the resolution as "adopted as United Nations Resolution 1442."

This provoked a flurry of protests, the loudest coming from France, who cited numerous official statements declaring their intention to veto the any resolution which "implicitly or explicitly" authorized the use of force. U.N. Secretary General Kofi Annan stated that the vote should not have been held without the full participation of all member nations. Syria, a surprise supporter of the resolution, protested that it had intended to vote against the resolution, but was confused by the ballot.

Guinean President Lansana Conte deplored the international reaction to the vote. "This is how the U.N. was designed to function," said Conte. "We have had full deliberation of this matter, and all Security Council members were afforded due time and consideration before casting their votes. No one takes such issues lightly." Conte was in Washington to attend a ceremony marking Guinea’s recent award of $20 billion in development aid from the U.S.

When Secretary Annan stated that the matter should be deferred until the full Security Council could reconvene, U.S. Solicitor General Ted Olson swiftly filed suit with the Federal Court of the Southern District of New York. Shortly thereafter, the U.S. Supreme Court granted a writ of certiorari, moving the case to the higher court immediately.

French Foreign Minister Dominique de Villepin denied that the U.S. Supreme Court had the authority to compel action from international organizations such as the U.N. That didn’t prevent Olson from presenting his argument that all Security Council member nations had ample notice of the time and place of the vote, and that to reconvene the Security Council for a recount "would violate both the spirit and letter of the U.N. Charter."

"France opposes this resolution in the strongest possible terms," said de Villepin at a press conference at U.N. Headquarters in New York. "We had assurances that Russia would appear at the Security Council and veto it. Were we not so misinformed, we surely would have come in and vetoed it ourselves."

Russia expressed similar frustration. "France quite clearly informed us that they would veto the resolution," said Russian Minister of Foreign Affairs Igor Ivanov. "Everyone knew this resolution was going to fail. Even China was going to veto. We thought, ‘Why bother getting up for it?’"

The Chinese delegation attempted to reach the Security Council in time for the vote, said a spokesman for the Chinese Minister of Foreign Affairs Tang Jiaxuan, but they were obstructed by severe traffic congestion on the FDR Drive. "Our government is calling for an investigation into reports that agents of the City and State of New York deliberately caused and prolonged the traffic jam that prevented the People's Republic of China from exercising its responsibility to the United Nations and the Security Council," said the spokesman.

Syria complained that the ballot used to indicate approval or rejection of the resolution was "confusing and ambiguous." "The ballot was in English and French only," said Syrian Foreign Minister Farouq al-Sharaa in a prepared statement, "and was designed to be read from left to right. Arabic is a Semitic language, which is read from right to left. How were we to know which box to check to accurately reflect our intention to oppose this resolution?"

Despite all these arguments, the Supreme Court, in its preferred 5-4 configuration, ruled that "there exists insufficient evidence to show that fewer than nine member nations affirmatively intended" to support the resolution. "Given the external constraints of logistical costs and local climate," continued the decision, "to further delay a clear outcome in this matter would impose an intolerable burden upon the plaintiff" (the United States, et al).

In his concurring opinion, Justice Antonin Scalia wrote, "The overriding principle in this case must be respect for all member nations to express their votes without constraint or duress. How dare we arrogate to ourselves the right to determine the true intentions of the absent member nations?"