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Professor Mary Ellen O'Connell
Moritz School of Law, Ohio State University
JURIST Guest Columnist

While certain aspects of UN Security Council Resolution 1441 are remarkably vague, two things are clear. First, Iraqi leader Saddam Hussein must accomplish a sequence of tasks over the next few months or almost certainly face serious consequences, most likely a US-led invasion. Second, in the event of non-compliance the United States is not automatically authorized to take unilateral military action to effect regime change in Iraq, certainly not before another meeting of the Security Council.

The resolution places a set of difficult, though not impossible, demands on Iraq with regard to weapons of mass destruction: Saddam Hussein must allow unimpeded access by UN and International Atomic Energy Agency inspectors. (Para. 5.) He must fully declare within thirty days of the resolution all details of any Iraqi weapons of mass destruction (WMD), delivery systems, and/or WMD programs. (Para. 3.) The inspectors will have UN security guards, facilities and broad authorities to support their work. (Para. 7.) The inspectors will report obstruction of their efforts to the Security Council. (Paras. 4 & 11.) The Council will convene immediately upon such a report. (Para. 12.) The resolution calls for serious consequences in the event of continuing Iraqi non-compliance. (Para. 13.) Weapons inspectors will make an interim report within 60 days of the resolution-January 7, 2003. (Para. 5.) If Iraq fails to meet any demand, President Bush has affirmed that he intends to order force against Saddam Hussein's regime [2]. The argument is that the ceasefire resolution, 687 (1991), and subsequent resolutions all tie back to the one resolution, 678 (1990), which did explicitly authorize the use of force to oust Iraq from Kuwait and establish peace in the region. Further, members of the Security Council for about a year after the adoption of the ceasefire resolution apparently acquiesced in the interpretation that it implied authority to do more than liberate Kuwait. Few protested the creation of the Kurdish protection zone in northern Iraq or in using force to establish no fly zones in northern and southern sectors of the country. So while Resolution 687 paragraph 34 explicitly reserves to the UN Security Council the decision to take any measures against Iraq beyond sanctions, using force in the no-fly zones is arguably permissible.

On the other hand, members of the Security Council have not acquiesced in using force in connection with Iraqi weapons inspections. The ceasefire resolution declares that sanctions will remain on Iraq until inspectors certify it is free of weapons of mass destruction. The debate since 1991 has been about lifting or leaving the sanctions, not whether states should be able to use military force to rid Iraq of weapons of mass destruction and the means to produce them[4]. No acquiescence has occurred to allow force for enforcing weapons inspections, and certainly none has developed to authorize ousting Saddam Hussein.

This conclusion was underscored when President Bush acknowledged as much in his speech to the UN on September 12[5]. He said the US would pursue the necessary resolutions in the Security Council, meaning that new resolutions, authorizing force, would be necessary before the US or any other country could carry out lawful enforcement action in respect to any Iraqi weapons of mass destruction.

Resolution 1441 provides no new authorization for using force. It states in paragraph 12 that a meeting of the Security Council will be the first step upon a report by inspectors that Iraq has obstructed their activities. Consequences will follow a meeting. Syria has confirmed that it received a letter from US Secretary of State Colin Powell "in which he stressed that there is nothing in the resolution to allow it to be used as a pretext to launch a war on Iraq."[6] Thus, if and when a meeting is called, Security Council members will have an opportunity to state their assessment of whether serious consequences are called for or not.

Yet, if the Council is silent on consequences or even decides affirmatively not to use force, the US and UK may try to argue that once a meeting has been held they are free to act, that holding the meeting is all that is required. The resolution does not state explicitly that results of the meeting will determine future action. The US has stated repeatedly it will use force in Iraq. President Bush said to the UN on September 12: 的f Iraq痴 regime defies us again, the world must move deliberately, decisively, to hold Iraq to account."[7] The US made this position clear throughout the negotiations of Resolutions 1441 and can point to the fact that Resolution 1441, unlike the ceasefire resolution (687), does not explicitly state it will be for the Security Council to decide on measures to take in response Iraqi non-compliance. Other members of the Security Council, however, have consistently taken the position that the Security Council must decide on consequences. That position tracks both the explicit terms of the United Nations Charter and the general law, discussed further below. As it stands, none of the Security Council resolutions authorize the US or UK to use force to enforce Iraq's obligations to rid itself of weapons of mass destruction, including Resolution 1441.

One of the vaguer passages of Resolution 1441 is related to the controversy over implicit authorization. As discussed above, the US and UK generally assert the right to use force in the no-fly zones on the basis of implied authorization. US Secretary of Defense Donald Rumsfeld has suggested that Iraqi firing on US planes policing the no-fly zones could be part of a 菟attern of behavior that might be taken to the Security Council[8]. Paragraph 8 of Resolution 1441 may or may not support his view. It states: "Iraq shall not take or threaten hostile acts directed against any representative or personnel of the United Nations or the IAEA or of any member State taking action to uphold any Council resolution.... Since Council resolutions do not establish the no-fly zones, some will argue that the US and UK flights are not upholding any Council resolution. Secretary Rumsfeld sees it differently.

The second version of the argument that prior Security Council resolutions authorize force centers on the 杜aterial breach argument. This argument apparently originated in the UK, but US officials have also mentioned it in recent months. Blair government officials argue that the ceasefire resolution and subsequent resolutions are like any other international agreement. In the case of material breach of a multilateral treaty, in some cases, all the parties may respond, including, where appropriate, by coercive countermeasures[9].

This is indeed a curious argument. Its main concept "material breach" has made its way into Resolution 1441[10]. The problem is that "material breach" never was a viable basis for using force against Iraq. Security Council resolutions are not like treaties or other agreements reached through negotiations aimed at achieving consensus. Rather, Security Council resolutions are mandates upon parties and must be respected with or without their consent[11]. They are enforced, modified, or terminated by the Security Council, not by states in general. Neither the explicit terms of the UN Charter nor the practice of the Security Council supports any other interpretation. Under the UN Charter, states may only use force in individual or collective self-defense in the face of an armed attack or with the authorization of the Security Council when the Council finds a threat or breach of international peace[12]. Thus, without Security Council authorization, states do not have the right to use force to enforce the Council's resolutions, whether a breach is material or immaterial. The Security Council's history with respect to its resolutions on Iraq make clear that it has not relinquished to the US the right to enforce its resolutions unilaterally.

The concept of material breach, therefore, provides no independent basis for the US or UK to invade Iraq. The concept is, however, now part of Resolution 1441. As noted above, paragraph 1 of the resolution states that in the Security Council's view Iraq is already in material breach, and in paragraph 4 the Council:

Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below....

Paragraph 11 requires the reporting of any interference with inspection activities and paragraph 12 contains the Security Council's decision to convene immediately upon receipt of a report. Hans Blix, the chief UN weapons inspector, has said a delay of as little as 30 minutes in allowing access will result in a report, as will four flat tires, though not one flat tire[13].

But then it will be for the Security Council to decide the consequences. Under the international law governing enforcement, all coercive measures are limited by the principles of necessity and proportionality, including those mandated by the Security Council itself[14]. Consequences should be commensurate with the nature of the breach. To this extent the "materiality" of the breach is not as important as finding a remedy that fits the wrong. It will be for Security Council members to calibrate response to any failure to comply. Thus, if the inspectors report even minor obstruction by Iraq, the Security Council should not necessarily authorize major military force.

The third version of the argument that authority existed to invade before the adoption of Resolution 1441 is promoted by the UK alone and not supported by the Bush Administration. The British argue that some of their uses of force against Iraq following the Gulf War are justified as humanitarian intervention[15]. They argue that the doctrine of humanitarian intervention could also support force against Iraq for regime change. The argument is difficult to sustain. To the extent force has been used in Iraq until 1999, the UK has tended to argue it had implied authority. Humanitarianism alone surfaced after Kosovo. To date, no government is on record as recognizing a crystallized rule permitting the use of force to pursue humanitarian aim. Certainly, the United States does not support such a rule.

In addition to pre-existing authority, we also hear that the some in the Bush Administration espouse the right of preemptive self-defense. They believe that this doctrine would support invading Iraq regardless of what the Security Council says or even of what Iraq does to comply. The doctrine of preemptive force has been described in the new National Security Strategy, in Secretary Rumsfeld's August report, and in President Bush's June speech at West Point. It purports to allow the United States to use military force against a perceived threat or even to prevent threats from developing[16]. They see Iraq as posing just such a future threat.

As already explained, international law restricts the right to use military force unilaterally to cases of self-defense against an armed attack. Once an attack is underway or will be imminently, the victim nation can use force, provided that the force is proportional and necessary. In cases of threat that lack the objective evidence of an armed attack, either under way or imminent, the defender needs Security Council authorization to use significant military force.

In conclusion, Resolution 1441 is designed to ensure that Saddam Hussein does not have weapons of mass destruction nor the capability to produce them. If applied reasonably by the Security Council, consistently with principles of international law, it is possible for Saddam to comply. To that extent, the resolution is not a cynical exercise to provide legal cover for a US invasion. Indeed, it requires restraint on the part of the US, too. The resolution weakens US arguments of authority to use force under prior resolutions, in the face of material breach or to pre-empt threats. However, Resolution 1441 does open the door for Security Council authorized action, including force, should Saddam fail to comply in good faith.

[1] 鉄hould Iraq fail to comply, President Bush has said, 奏he United States will lead a coalition and disarm him. Rajiv Chandrasekaran, U.N. Inspectors Arrived in Baghdad; Blix Promises His Team Will Work 前bjectivelyProfessionally, Wash. Post, Nov. 19, 2002 (available at 2002 WL 102573169).
[2] See sources in John Quigley, The United Nations Security Council: Promethean Protector or Helpless Hostage?, 35 Tex. Int値 L. J. 129 (2000); Jules Lobel & Michael Ratner, Bypassing the Security Council, Ambiguous Authorization to Use Force, Cease-Fires, and the Iraqi Inspection Regime, 93 Am. J. Int値 L. 124 (1999); Ruth Wedgwood, The Enforcement of Security Council Resolution 678: The Threat or Use of Force Against Iraq痴 Weapons of Mass Destruction, 92 Am. J. Int値 L. 724, 724-26 (1998); Mary Ellen O辰onnell, Continuing Limits on U.N. Intervention in Civil Wars, 67 Ind. L. J. 903 (1992).
[3] Mary Ellen O'Connell, Debating the Law of Sanctions 13 EJIL 63 (2002).
[4] See, e.g., the debate at the Security Council with regard to a major US/UK use of force in December 1998, Operation Desert Fox. U.N. SCOR 53d Sess., 3955th mtg., U.N. Doc. S/PV.3955, Dec. 16, 1998.
[5] 溺y nation will work with the U.N. Security Council to meet our common challenge. We will work with the U.N. Security Council for the necessary resolutions. In Bush痴 Words: On Iraq, U.N. Must Face Up to Its Founding Purpose, N.Y. Times., Sept. 12, 2002, at A10.
[6] Patrick Wintour & Brian Whitaker in Cairo, UK Expects Iraq to Fail Arms Tests, The Guardian, Nov. 11, 2002.
[7] In Bush痴 Words, supra note 5; see also supra note 1.
[8] Tom Squitieri, Rumsfeld: Attacks on Jets Patrolling Iraq Could Spark Invasion, USA Today, Nov. 18, 2002, at 13A.
[9] Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 60, 1155 UNTS 331; Responsibility of States for Internationally Wrongful Acts, arts. 49 - 54, see G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (2002). Christine Gray, From Unity to Polarization: International Law and the Use of Force Against Iraq, 13 Eur. J. Int値 L. 1, 9-13 (2002).
[10] In paragraph 1 of Resolution 1441, the Security Council "Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687...." See also paragraph 4 reproduced in the text above.
[11] See UN Charter Article 25.
[12] UN Charter Article 51 provides: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs." Article 39 provides: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." The United Nations Charter is a binding international treaty to which the United States is a party.
[13] Ellen Hale, Inspectors Say Iraq Won稚 Be Allowed to Stonewall, USA Today, Nov. 18, 2002.
[14] O'Connell, Debating the Law of Sanctions, supra note 5.
[15] Gray, From Unity to Polarization, supra note 89, at 9-13.
[16] Mary Ellen O'Connell, The Myth of Preemptive Self-Defense, prepared in conjunction with the ASIL Task Force on Terrorism, 2002.

Mary Ellen O'Connell is William B. Saxbe Designated Professor of Law, Mortiz College of Law & Mershon Center, at the Ohio State University.

November 21, 2002


JURIST Guest Columnist Mary Ellen O'Connell is both a professor of law at The Ohio State University Moritz College of Law and an associate of OSU痴 Mershon Center for the Study of International Security and Public Policy. She teaches courses on international law, international dispute resolution, international environmental law, international law and the use of force, and contracts.

Professor O辰onnell痴 books include: International Dispute Settlement, a volume in the Library of Essays in International Law series by Ashgate/Dartmouth Press. She is co-author of International Law and the Use of Force, co-editor of Politics, Values and Functions, International Law in the 21st Century, Essays in Honor of Professor Louis Henkin. She is currently completing work on Enforcement in International Law and a student text on International Dispute Resolution.

Professor O辰onnell holds a B.A. in history from Northwestern, an MSc. in international relations from the London School of Economics, an LL.B. in international law from Cambridge University, and a J.D. from Columbia Law School. Prior to joining the faculty at Ohio State, she was a visiting professor at the University of Cincinnati College of Law, the University of Munich, and the Bologna Center of the Johns Hopkins University School of Advanced International Studies. She has also been an associate professor on the faculties of Indiana University-Bloomington and the George C. Marshall European Center for Security Studies.