Given Iraq's material breach of its obligations under UN resolution 687, the threat to international peace and security remains and the restoration of international peace and security has not been achieved, writes Tom Cooney
The US, leading a coalition of the willing, may have to shoulder the burden of war against Saddam Hussein. The dictator continues his cynical dodge of delay and deceit. The inspections have become an Inspector Clouseau operation.
On Friday, the UN Security Council will consider the "need for full compliance with all of the relevant Council resolutions in order to secure international peace and security".
They include resolution 687 (adopted at the end of the Gulf War) providing for a formal ceasefire between Iraq and the coalition assisting Kuwait under resolution 678. Resolution 1441 says: "The Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations."
The phrase "serious consequences" covers military action. The resolution is silent on what is to happen if the Security Council fails to take effective action. France, Germany, Russia and China will try to stymie military action, but paralysis of the UN would not hobble the coalition.
Compliance with chapter VII resolutions is imperative. Those resolutions are legally binding, like multilateral treaties. The term "material breach" in resolution 1441 is tuned to article 60 of the Vienna Convention on the Law of Treaties, which governs material breaches of treaties.
That article says that 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.
It says 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.
It also says 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".
The UN declares in resolution 1441 that Iraq is in material breach of its obligations under relevant resolutions, including resolution 687, the ceasefire resolution. It also says that a violation of resolution 1441 will be a material breach. Thus the UN regards those resolutions as being similar enough to multilateral treaties to be subject to article 60 of the Vienna Convention.
SINCE chapter VII resolutions bind all members, a material breach of such a resolution by a UN member-state would amount to a material breach of the charter itself. The charter is a multilateral treaty so article 60 of the Vienna Convention would apply directly to any material breach of it.
Resolution 678 authorised the coalition to deploy all necessary means to restore international peace and security in the Gulf. The legality of the coalition's military action in the Gulf War was formally anchored in the measure.
Under resolution 687, the operation of a ceasefire was premised on Iraq's acceptance of the resolution's terms.
Given Iraq's material breach of its obligations, the threat to international peace and security remains. The restoration of international peace and security has not been achieved.
Therefore the coalition may suspend the ceasefire and go to war.
Under article 60 of the Vienna Convention, it is open to any "specially affected" state to argue that it can suspend the ceasefire provision in resolution 687 and invoke resolution 678. The coalition can claim that its members are "specially affected" because they are frontline targets of international terrorism.
An Iraqi regime with weapons or materials capable of mass destruction would be likely to equip terrorist organisations which have the coalition in their sights. The coalition can say that the material breach creates a threat to international peace and security.
If Saddam Hussein makes weapons of mass destruction, he will dominate the Gulf with impunity and use Gulf oil as a weapon to injure the region and the democratic world. This will affect directly not only regional security but also the security of every member of the UN.
A violation of resolution 687 and related resolutions poses a broad threat to international peace and security, consequently every UN member-state's position under resolution 687 has been radically changed.
The coalition can argue that a material breach has occurred and nothing stands in the way of its suspension of the ceasefire based on resolution 687. It can say that resolution 678 has never been rescinded and so provides continuing authority to use "all necessary means to restore international peace and security in the area".
It may also argue that resolution 1441 justifies military action "to secure" international peace and security, a broader notion covering regime change.
It can argue that it has a right of anticipatory pre-emptive self-defence to protect itself from terrorism sponsored by Saddam Hussein.
He is a ticking suicide bomb waiting to happen. Although the EU refuses to recognise this, he currently sponsors terror against Israel.
The coalition can also invoke the precedent of humanitarian intervention when NATO intervened in Serbia to save the Kosovars. The point would be to secure the position of the Kurds and other minorities who have been the victims of the genocidal regime.
They have a stake in a new federal democratic Iraq. We all do.
Tom Cooney teaches law at UCD law school.