I have to go in a sec,but this is something I want both FAthreads to see:
Crow has provided me with some interesting material from an analysis in 1998 about the residual right to use force against Iraq possessed by the United States. It is a Canadian analysis that generally supports a narrow interpretation of the right to use force, and favors sanctions, and of course it does not address the latest resolution. What strikes me most forcibly is that the position of the "international law" community seems to be that serious use of force to enforce the will of the UN cannot be arrogated, but must be expressly delegated to some party. As regards the specific case of non- compliance, the analyst denies that the cease fire was conditional. However, he does note some dissent among others in his field, for example:
LETTERS TO THE EDITOR
PROFESSOR JOHN CAREY - ADJUNCT PROFESSOR
OF INTERNATIONAL LAW AT NEW YORK UNIVERSITY
To the Editor:
Christopher Wren's article "U.N. Resolutions Allow Attack on the Likes of Iraq" does not get to the bottom of the question whether the US is authorized to bomb Iraq without further Security Council authorization.
It is correct that resolution 687 of April 3, 1991, brought about a cease-fire upon Iraq's notification that it accepted destruction of its weapons of mass destruction. Iraq's breach of its obligations has already been officially declared by the Security Council on January 12 in its statement finding "a clear violation of the relevant resolutions."
The Vienna Convention on the Law of Treaties is of doubtful relevance since what is being interpreted is not a treaty but Security Council texts. Those texts need to be closely examined to determine what they now authorize without any further enactment.
Upon Iraq's breach of its obligation to allow full inspection of its weapons of mass destruction capability, the cease-fire, enacted by resolution 687, ended. That brought back into play resolution 678 of November 29, 1990, which had authorized the Gulf War to remove Iraq from Kuwait. Since Iraq is now out of Kuwait, the question is whether hostilities can be resumed for any other purpose, such as enforcing inspection.
If the only purpose of hostilities contemplated by resolution 678 had been removal of Iraq, then the ending of the cease-fire would not have authorized force to compel inspection. But 678 went further, allowing the US and others "to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."
Restoration of international peace and security in the area is exactly our purpose in seeking destruction of Iraq's ability to make and use weapons of mass destruction. But besides that, the authorization of 678 to uphold and implement "all subsequent resolutions" applies to 687, which established the system for inspecting and destroying Iraq's weapons of mass destruction.
That system, agreed to by Iraq, is being violated by it, and resumption of hostilities to enforce the system is now authorized, without any further Security Council enactment.
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To the Editor:
In order legally to resume military action against Iraq, the United States needs to be acting (a) consistently with its own Constitution and (b) with authority from the United Nations Security Council. The reason Security Council authority is needed is that the UN Charter, a treaty by which we are bound, forbids the use of force except in self-defence or with Council approval.
Three key Security Council resolutions must be examined to determine what authority exists today for the US to bomb Iraq. Resolution 678 of November 1990 authorized the US and other countries "to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." That was the UN's green light for Desert Storm. Resolution 660 had ordered Iraq out of Kuwait.
In April 1991 resolution 687 brought about a cease-fire conditioned on Iraq's notification that it accepted the inspection and destruction of its chemical, biological and nuclear weapons as well as the missiles to deliver them. Iraq is now in "clear violation" of those obligations, as the Security Council declared in January. Iraq's violations voided the US obligation to cease firing and brought back into effect resolution 678.
As indicated in the above quote from 678, force is authorized by it not just to get Iraq out of Kuwait but also to uphold "all subsequent relevant resolutions and to restore international peace and security in the area." Peace and security in the area are overall US objectives. But in addition, one of the subsequent relevant resolutions is 687 requiring elimination of Iraq's weapons of mass destruction. That is the immediate US objective.
It is therefore clear that the US can, so far as international law is concerned, resume hostilities against Iraq both to restore peace and security in the area and to enforce the destruction of its chemical, biological and nuclear weapons and their missiles. Whether US constitutional requirements have been met, and whether hostilities would be effective or proper, are questions beyond the scope of this letter.
Of course, the paper attempts to rebut this and other possible rationales for the US position. I did not find the arguments compelling, though some were better than others, and all seemed plausible. Judge for yourself:
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