[continued from previous message] 
  
 international peace and security". They reflect not only the special 
 responsibility of the Security Council under Article 39 of the UN 
 Charter 
 ("The Security Council shall determine the existence of any threat to 
 the peace, breach of the peace, or acts of aggression and shall make 
 recommendations, or decide what measures shall be taken..... to 
 maintain or restore international peace and security"), but also pick 
 up the language of both resolution 678 (which authorised the use of 
 force to restore international peace and security in the area") and 
 resolution 687 
 (which referred to the objective of "restoring international peace and 
 security in the area as set out in its recent resolutions"). 
  
 The clear inference, it will be argued, is that this shows the Council 
 was to exercise a deliberative role on that issue, i.e. to determine 
 what it is necessary to secure international peace and security; 
  
 (iii) any other construction reduces the role of the Council 
 discussion under OP12 to a procedural formality. Others have jibbed at 
 this categorisation, but I remain of the opinion that this would be 
 the effect in 
 legal terms of the view that no further resolution is required. The 
 Council would be required to meet, and all members of the Council 
 would be under an obligation to participate in the discussion in good 
 faith, but even if an overwhelming majority of the Council were 
 opposed to the use of force, military action could proceed regardless, 
  
 25. Where the meaning of a resolution is unclear from the text, the 
 statements made by members of the Council at the lime of its adoption 
 may be taken into account in order to ascertain the Council's 
 intentions. The statements made during the debate en 8 November 2002 
 are not, however, conclusive. 
  
 The US and UK stated that further breaches would be reported to the 
 Council "for discussion". Jeremy Greenstock then added that we would 
 then expect the 
 Council to "meet its responsibilities", although (implicitly) we would 
 be prepared 
 to act without Council backing to ensure that the task of disarmament 
 is completed. Only the US explicitly stated that it believed that the 
 resolution did not constrain the use of force by States "to enforce 
 relevant United Nations resolutions and protect world peace and 
 security regardless of whether there 
 was a further Council decision. 
  
 Conversely, two other Council members, Mexico and Ireland, made clear 
 that in their view a further decision of the Council was required 
 before the use of force would be authorised. Syria also stated that 
 "the resolution should not be interpreted, through certain paragraphs, 
 as authorising any State to use force". Most other Council members 
 were less clear in their comments. 
  
 The joint statement of France, Russia and China is somewhat opaque, 
 but seems to imply that a further decision is required. Many 
 delegations welcomed the fact that there was "no automaticity" in the 
 resolution with regard to the use of force. But it is not 
 clear what they meant by this. 
  
 It could indicate that they did not consider that the resolution 
 authorised the use of force in any circumstances by means of the 
 revival argument. On the other hand there is some evidence from the 
 negotiating history that their main concern was that the resolution 
 should not authorise force immediately following its adoption on the 
 basis of "material breach" in OP1 plus "serious consequences" in OP13. 
  
 The UK and US indicated that "no automaticity" meant that there would 
 be a Council discussion before force was used. 
  
 Summary 
  
 26. To sum up, the language of resolution 1441 leaves the position 
 unclear and the statements made on adoption of the resolution suggest 
 that there were differences of view within the Council as to the legal 
 effect of the resolution. 
  
 Arguments can be made on both sides. A key question is whether there 
 is in truth a need for an assessment of whether Iraq's conduct 
 constitutes a failure to take the final opportunity or has constituted 
 a failure fully to cooperate within the meaning of OP 4 such that the 
 basis of the cease-fire is destroyed. 
  
 If an assessment is needed of that sort, it would be for the Council 
 to make it. A narrow textual reading of the resolution suggests that 
 sort of assessment is not needed, because the Council has 
 pre-determined the issue. Public statements, on 
 the other hand, say otherwise. 
  
 27. In these circumstances, I remain of the opinion that the safest 
 legal course would be to secure the adoption of a further resolution 
 to authorise the use of force. I have already advised that I do not 
 believe that such a 
 resolution need be explicit in its terms. The key point is that it 
 should establish that the Council has conduced that Iraq has failed to 
 take the final opportunity offered by resolution 1441, as in the draft 
 which has 
 already been tabled. 
  
 28. Nevertheless, having regard to the information on the negotiating 
 history which I have been given and to the arguments of the US 
 Administration which I heard in Washington, I accept that a reasonable 
 case can be made that resolution 1441 is capable in principle of 
 reviving the authorisation in 678 without a further resolution. 
  
 29. However, the argument that resolution 1441 alone has revived the 
 authorisation to use force in resolution 678 will only be sustainable 
 if there are strong factual grounds for concluding that Iraq has 
 failed to take the final opportunity. In other words, we would need to 
 be able to demonstrate hard evidence of non-compliance and 
 non-cooperation. 
  
 Given the structure of the resolution as a whole, the views of UNMOVIC 
 and the IAEA will be highly significant in this respect. In the light 
 of the latest reporting by UNMOVIC, you will need to consider 
 extremely carefully whether the evidence of non-cooperation and 
 non-compliance by Iraq is sufficiently compelling to justify the 
 conclusion that Iraq has failed to take its final opportunity. 
  
 30. In reaching my conclusions, I have taken account of the fact that 
 on a number of previous occasions, including in relation to Operation 
 Desert Fox in December 1998 and Kosovo in 1999, UK forces have 
 participated in military action on the basis of advice from my 
 predecessors that the legality of the action under international law 
 was no more than reasonably arguable. 
  
 But a "reasonable case" does not mean that if the matter ever came 
 before a court I would be confident that the court would agree with 
 this view. I judge that, having regard to the arguments on both sides, 
 and considering the resolution as a whole in the light of the 
 statements made on adoption and subsequently, a court might well 
 conclude that OPs 4 and 12 do require a further Council decision in 
 order to revive the authorisation in resolution 678. 
  
 But equally I consider that the counter view can be reasonably 
 maintained. However, it must be recognised that on previous occasions 
 when military action was taken on the basis of a reasonably arguable 
 case, the degree of public and Parliamentary scrutiny of the legal 
 issue was nothing like as great as it is today. 
  
 31. The analysis set out above applies whether a second resolution 
 fails to be adopted because of a lack of votes or because it is 
 vetoed. As I have said before, I do not believe that there is any 
 basis in law for arguing that there is an implied condition of 
 reasonableness which can be read into the power of veto conferred on 
  
 [continued in next message] 
  
 --- SoupGate-Win32 v1.05 
  * Origin: you cannot sedate... all the things you hate (1:229/2)