The New, Old United Nations - Proposal of an Interpretative Model


On the anniversary of the unilateral strike against Iraq, we are no closer to a definitive understanding of whether the attack is or is not legal. Many critics have, with much eloquence, made arguments for and against preventive self-defense as a normative concept, and others have scrutinized the text of the relevant Security Council resolutions and the United Nation’s Charter with much care to ascertain the technical merits of both claims. While both approaches have shed much light on this particular debate, it has done little to place it within its larger context. Iraq (and many conflicts before) should have been an occasion on which to figure out the only relevant question: how should the Charter be interpreted? If we accept the premise that the Charter is of constitutional value in international law, then the legality of any act must not be ultra vires the Charter. This determination can only be made upon a proper construction of the Charter. While indeterminacy is inevitable, international law could benefit from some common framework within which such interpretative choices could be generated and made. It could benefit from a common methodology of interpretation that places the immediate controversy within the larger architecture of text, institutional history, practice and – most importantly – the aspirational values that the UN stands for. It is only this cumulative approach that affords a more holistic standard against which to evaluate individual acts by states. It is also this approach that promises to bridge fundamental gaps in ideology – particularly the dispute over the so-called doctrine of mitigation – and allow us to focus on a way of interpreting the Charter consistent both textually and morally.


International Law

Date of this Version

March 2004