We urge the Bush administration to comply with the Constitution, to comply with the UN Charter, and not unilaterally attack Iraq. Self-defense Article 51 of the Charter sets forth the exception for self-defense. Further Reading:. Get more news like this, directly in your inbox. Subscribe to our newsletter. Please enable JavaScript in your browser to complete this form. 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. Some other states could be expected to argue, though, that Resolutions and were aimed primarily at neutralizing any viable threat of Iraqi military action directed against other Middle Eastern states, so a violation of Resolution 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. 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. Charter with respect to its obligations under the resolution.
In any event, the terms of Resolution , 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 Resolution , 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 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 They would further argue that, since Resolution 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 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 , only the Council can decide later that Iraq has not cooperated fully in the implementation of Resolution and that the cease-fire consequently is no longer in force.
Secondly, it provides them with a broad discretion as to what is considered necessary including the use of military force to secure implementation of the resolutions requiring Iraq's withdrawal from Kuwait.
In April , the UNSC adopted Resolution which, amongst other matters, spelt out Iraq's obligation to agree unconditionally to the destruction of WMD and to accept inspections for verification purposes. Specifically, it states that:. While inspections took place during the s, increasing tension between the inspection teams and Iraq during eventually lead to the cessation of inspections by late Notably, Resolution stated that:.
Resolution affirms that Iraq remains in material breach 18 of Resolution As mentioned earlier in this paper, 19 the US appears to take the view that it would be justified in forcing Iraqi to comply with the relevant UNSC resolutions if the Council itself fails to do so. It is hard to see that this position has any tenable basis in international law. This same issue of unilateral, or 'automatic', implementation was debated at the UNSC meeting which led to the adoption of Resolution The relevant part of that debate has been summarised as:.
No agreement was reached on this issue. The other members of the Council, including the other permanent members, emphasized the powers and authority of the Security Council and in some cases explicitly rejected any automatic right for members to use force.
Sweden emphasised that "the Security Council's responsibility for international peace and security, as laid down in the Charter of the United Nations, must not be circumvented. The resolution clearly states that it is precisely the Security Council which will directly ensure its implementation, including the adoption of appropriate decisions. Therefore, any hint of automaticity with regard to the application of force has been excluded; that would not be acceptable for the majority of the Council's members.
The passing of Resolution does not change the situation. Our debate on October [in relation to Resolution ] made it clear that this is the broadly held view within the United Nations.
Similarly, the idea that UNSC resolutions can be sometimes seen as 'implicitly' authorising the unilateral use of military force has likewise been rejected in other academic writings. Although not directly relevant to this paper, one implication of this is that the maintenance of 'no-fly' zones over Southern and Northern Iraq have no support in international law.
A related argument sometimes made is that the Gulf War ceasefire agreement referred to in Resolution was dependent on Iraq's carrying out of its disarmament obligations. As Iraq has failed to carry these out fully, the argument runs that Resolution which authorised the use of force against Iraq remains operative. However, Resolution says the UNSC may take further steps 'as may be required for the implementation of the present resolution'.
It does not state or imply that UN members themselves may do so. In summary, international law does not allow the US, or any other country, to take military action against Iraq for the purpose of enforcing any of the UNSC disarmament resolutions. Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
This 'inherent right' under customary international law, is usually described under the classic Caroline 23 formula as occuring when the 'necessity of self-defence is instant, overwhelming, leaving no choice of means, and no moment of deliberation [the act of self-defence must also involve] nothing unreasonable or excessive'. The right of self-defence was invoked by the US as legal justification for its military campaign in Afghanistan and is discussed in a previous publication.
The main point of controversy is whether the phrase 'if an armed attack occurs' rules out self-defence before an attack occurs i. For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction-weapons that can be easily concealed, delivered covertly, and used without warning To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.
This approach has since been further detailed in an address by Condoleezza Rice, President Bush's national security adviser:. Extremists who seem to view suicide as a sacrament are unlikely to ever be deterred. And new technology requires new thinking about when a threat actually becomes "imminent. There has never been a moral or legal requirement that a country wait to be attacked before it can address existential threats But this approach must be treated with great caution.
The number of cases in which it might be justified will always be small. It does not give a green light to the United States or any other nation to act first without exhausting other means, including diplomacy.
Decides further that 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; 9. Requests all Member States to give full support to UNMOVIC and the IAEA in the discharge of their mandates, including by providing any information related to prohibited programmes or other aspects of their mandates, including on Iraq i attempts since to acquire prohibited items, and by recommending sites to be inspected, persons to be interviewed, conditions of such interviews, and data to be collected, the results of which shall be reported to the Council by UNMOVIC and the IAEA;
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