ASIL Insights

            The United Nations Security Council, in Resolution 1441 (November 8, 2002), unanimously deplored Iraq's lack of compliance with Resolution 687 (1991) on inspection, disarmament and renunciation of terrorism in Iraq, and went on to make several decisions under Chapter VII of the U.N. Charter. Resolution 687, like Resolution 1441, was adopted under Chapter VII.  Chapter VII gives the Council the authority to determine the existence of a threat to the peace, breach of the peace or act of aggression, and to take action accordingly. 

            In paragraph 1 of Resolution 1441, the Council decided that "Iraq has been and remains in material breach of its obligations" under relevant resolutions, including Resolution 687, in particular through Iraq's failure to cooperate with authorized inspectors and its failure to disarm in several respects, including destroying all chemical and biological weapons and placing all of its nuclear-weapons-usable materials under the control of the International Atomic Energy Agency (IAEA).  The Council decided to afford Iraq "a final opportunity to comply with its disarmament obligations under relevant resolutions."  Resolution 1441 then sets up an enhanced inspection regime and orders Iraq to submit "a currently accurate, full, and complete declaration of all aspects of its programmes to develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery systems . . . ." Inspections are to be conducted by the U.N. Monitoring, Verification and Inspection Commission (UNMOVIC) and the IAEA.  Iraq is directed to provide UNMOVIC and IAEA unimpeded access to any and all areas, facilities, buildings, equipment, records and means of transport that they wish to inspect, as well as unimpeded and private access to all officials and other persons they wish to interview.  The resolution affirms that it is binding on Iraq and demands that Iraq confirm within seven days its intention to comply fully with it.  Iraq has reluctantly done so.

            In paragraph 4 of Resolution 1441, 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 directs the heads of UNMOVIC and IAEA to report immediately to the Council any Iraqi interference with inspection activities, as well as any Iraqi failure to comply with its disarmament obligations.  Paragraph 12 decides that the Security Council will "convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security."  Finally, paragraph 13 says that "the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." [1]   The phrase "serious consequences" has been widely understood to include the use of armed force.

            The U.N. Charter obligates all member states to comply with Security Council resolutions adopted under Chapter VII.  Consequently, such resolutions are similar to (but not exactly the same as) multilateral treaties in that they are binding instruments under international law.  The language of "material breach" in Resolution 1441 is keyed to Article 60 of the Vienna Convention on the Law of  Treaties, which is the authoritative statement of international law regarding material breaches of treaties.  Under Article 60 of the Vienna Convention, a material breach is an unjustified repudiation of a treaty or the violation of a provision essential to the accomplishment of the object or purpose of a treaty.  Article 60 provides that a party specially affected by a material breach of a multilateral treaty may invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state.  Article 60 also provides that any non-breaching party may suspend the operation of a multilateral treaty if the treaty is of such a character that a material breach by one party "radically changes the position of every party with respect to the further performance of its obligations under the treaty."

            When the Security Council asserted in paragraph 1 of Resolution 1441 that Iraq is in material breach of its obligations under relevant resolutions, including Resolution 687, it appears to have treated those resolutions as being sufficiently like multilateral treaties to be subject to Article 60 of the Vienna Convention.  Alternatively, since the U.N. Charter says that Security Council decisions embodied in Chapter VII resolutions are binding on all members, a material breach of such a resolution by a U.N. member state (such as Iraq) would be a material breach of the Charter itself.  Since the Charter is a multilateral treaty, Article 60 of the Vienna Convention would apply directly to any material breach of it.

            Security Council Resolution 687, adopted at the end of the Gulf War, includes a provision declaring a formal cease-fire between Iraq, Kuwait and the member states (such as the United States) cooperating with Kuwait in accordance with Resolution 678 (1990).  Resolution 678 authorized member states to use all necessary means to restore international peace and security in the area, and thus provided the basis under international law for the allies' military action in the Gulf War.  The determination in Resolution 1441 that Iraq is already in material breach of its obligations under Resolution 687 provides a basis for the decision in paragraph 4 (above) of Resolution 1441 that any further lack of cooperation by Iraq will be a further material breach.  If Iraq, having confirmed its intention to comply with Resolution 1441, then fails to cooperate fully with the inspectors,  it would open the way to an argument by any specially affected state that it could suspend the operation of the cease-fire provision in Resolution 687 and rely again on Resolution 678.  It might also invite an argument that any party to the U.N. Charter could suspend the operation of the cease-fire provision because the material breach would pose a threat to international peace and security and would therefore radically change the position of all U.N. member states under Resolution 687.  The argument would point out that the breach would relate to weapons or materials capable of mass destruction that, if put to use, could have an impact not just on regional security, but on worldwide security.

            The United States could argue that it is a specially affected state because it is the most prominent target of terrorism, and Iraq's noncooperation presumably would stem from its intent to develop or retain terrorist capabilities that would likely be directed at U.S. interests.  Some other states could be expected to argue, though, that Resolutions 678 and 687 were aimed primarily at neutralizing any viable threat of Iraqi military action directed against other Middle Eastern states, so a violation of Resolution 687 and related resolutions would not "specially affect" the United States.  But if the violation poses a broad threat to international peace and security, the United States (and any other like-minded state) might assert that every U.N. member state's position under Resolution 687 has been radically changed, as outlined above.  The counter-argument would be that even if the breach constitutes a threat to the peace, it would not radically change the position of "every party" to the U.N. Charter with respect to its obligations under the resolution.

            In any event, the terms of Resolution 1441, paragraph 4 (above), make it clear that a failure of Iraq to cooperate, if reported to the Security Council, would not justify either the United States' or any other state's unilateral suspension of the cease-fire provision without giving the Security Council an opportunity to consider the situation and to act under paragraph 12.  Resolution 1441, however, does not specify what is to happen if the Security Council convenes under paragraph 12, but does not take action or only takes action that some states, in particular a specially affected state, do not consider adequate under the circumstances.  Nor does Resolution 1441 specify what is to happen if a specially affected state at some point concludes that Iraq is not cooperating fully, but the inspectors disagree and thus do not at that point contemplate making a report to the Council under paragraph 4.  In such circumstances, the United States and its allies could argue that a material breach has occurred and nothing stands in the way of their suspension of the cease-fire that was based on Resolution 687.  They would further argue that, since Resolution 678 (the resolution that authorized member states to take action against Iraq in the first place) has never been rescinded, it provides continuing authority to use "all necessary means to restore international peace and security in the area."

            Other states could argue that since the Security Council has decided in Resolution 1441 that certain conduct by Iraq amounts to a material breach, but the Council did not at the same time suspend its own cease-fire and instead decided to give Iraq another chance to comply with its obligations under Resolution 687, only the Council can decide later that Iraq has not cooperated fully in the implementation of Resolution 1441 and that the cease-fire consequently is no longer in force.  For example, the representative of Mexico (a current member of the Security Council) said after the vote on Resolution 1441 that the use of force is only valid as a last resort and with prior, explicit authorization from the Council.  Mexico does not stand alone in taking that position.  It is based on the Charter-based principle that disputes should be settled peacefully, and that only the Security Council can determine when there is a need for coercion.  It would be argued that, in light of the emphasis in the Charter on peaceful dispute settlement, Resolution 678 could not be used as an authorization for the use of force after twelve years of cease fire, unless the Security Council says so.

            There is some support for the position of Mexico and like-minded states, stemming from the negotiating history of Resolution 1441.  The U.S. draft resolution, in paragraph 12 on the reconvening of the Security Council upon receipt of a report of Iraqi noncompliance, said that the purpose would be "to restore international peace and security."  As noted above, paragraph 12 as adopted by the Council says that the purpose is "to secure international peace and security."  The substitution of "secure" for "restore" departs not only from the language proposed by the United States, but also from the language quoted above from Resolution 678.  It could imply that the situation now is not the same as it was in 1990, when Resolution 678 was adopted.

            The position of Mexico and like-minded states does not regard paragraph 13 of Resolution 1441 (repeating the Council's warnings to Iraq that it will face "serious consequences" as a result of its continued violations of its obligations) as an explicit authorization of the use of force.  The United States might reply that paragraph 13 does authorize the use of force if the Security Council fails to achieve its goals in Iraq, because of the widespread understanding of what is meant by "serious consequences."  Paragraph 13, however, is in the form of a reminder rather than an authorization for action.

            Finally, the United States government has argued, wholly apart from Resolution 1441, that it has a right of pre-emptive self defense to protect itself from terrorism fomented by Iraq.  For discussion of pre-emptive self-defense in the terrorism context, see the ASIL Insight, "Pre-emptive Action to Forestall Terrorism" (June 2002). [2]

About the Author: 
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law.  He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.