[continued from previous message] 
  
 It is clear from a comparison of the wording of paragraphs 4 and 11 
 that any Iraqi conduct which would be sufficient to trigger a report 
 from the inspectors under OP11 would also amount to a failure to 
 comply with and cooperate fully in the implementation of the 
 resolution and would thus also be covered by OP4. 
  
 In addition, the reference to paragraph 11 
 in OP4 cannot be ignored. It is net entirely clear what this means, 
 but the most convincing explanation seems to be that it is a 
 recognition that an OP11 inspectors' report would also constitute a 
 report of further material breach within the meaning of OP4 and would 
 thus be assessed by the Council under OP12. Moreover, the US see OP4 
 as an essential part of the mechanism for establishing that Iraq has 
 failed to take its final opportunity. 
  
 20. It has also been suggested that the final words of OP4 were chosen 
 carefully to avoid the implication that it was for the Security 
 Council to assess whether Iraqi conduct constituted a further material 
 breach. 
  
 The French proposed to amend OP4 so that Iraqi conduct would only 
 amount to a further material breach "when assessed" as such by the 
 Council, but this amendment was not accepted. 1 am not wholly 
 convinced by this argument: if, for the reasons discussed in paragraph 
 17 above, OP4 requires an assessment of Iraq's conduct by the Council, 
 the alternative language makes little difference. 
  
 However, I do accept that the negotiating history indicates that the 
 words at the end of OP4 "and shall be reported to the Council for 
 assessment in accordance with paragraphs 11 and 12" were added at a 
 late stage, but in substitution for other language which would clearly 
 have had the effect of making any finding of further material breach 
 subject to a further Council decision. 
  
 21. Whether a report comes to the Council under OP4 or OP11, the 
 critical issue is what action the Council is required to take at that 
 point. In other words, what does OP12 require. It is clear that the 
 language of OP12 was a compromise by the US from their starting 
 position that the Council should authorise in advance the use of all 
 necessary means to enforce the cease-fire resolution in the event of 
 continued violations by Iraq. 
  
 It is equally clear, however, that the language does not expressly 
 provide that a further Council decision is necessary to authorise the 
 use of force. The paragraph indicates that in the event of a report of 
 a further material breach (whether under OP4 or OP11) there will be a 
 meeting of the Council to consider the situation and the need for 
 compliance in order to secure international peace and security. 
  
 The Council thus has the opportunity to take a further decision 
 expressly authorising the use of force or, conceivably, to decide that 
 other enforcement means should be used, cut the Council might fail to 
 act. The resolution does not state what is to happen in those 
 circumstances. 
  
 The clear US view is that, whatever the reason for the Council's 
 failure to act, the determination of material breach in OPs 1 and 4 
 would remain valid, thus authorising the use of force without a 
 further decision. My view is that different considerations apply in 
 different circumstances. 
  
 The OP12 discussion might make clear that the Council's view is that 
 military action is appropriate but that no further decision is 
 required because of the terms of resolution 1441. In such a case, 
 there would be good grounds for relying on the existing resolution as 
 the legal basis for any subsequent military action. The more difficult 
 scenario is if the views of Council members are divided and a further 
 resolution is not adopted either because it fails to attract 9 votes 
 or because it is vetoed. 
  
 22. The principal argument in favour of the view that no further 
 decision is required to authorise force in these circumstances is that 
 the language of OP12 (i.e. "consider") was chosen deliberately to 
 indicate the need for a further discussion, but not a decision. As I 
 have indicated, it is contended that this interpretation is supported 
 by the negotiating history. 
  
 The French and Russians both made proposals to amend OP12 to include 
 an express requirement for a further decision, but these proposals 
 were not accepted. The US Administration insist that they made clear 
 throughout that they would not accept a text which subjected the use 
 of force to a further Council decision. 
  
 The French (and others) therefore knew what they were voting for. The 
 US are confident that in accepting OPs 4 and 12, they were conceding a 
 Council discussion and no more. The US, of course, approached the 
 negotiation of resolution 1441 from a different starting point 
 because, as I explained in paragraph 9 above, they have always taken 
 the view that "material breach" is a matter of objective fact and does 
 not require a Security Council determination. 
  
 (By contrast, the UK position taken on the advice of successive Law 
 Officers, has been that it is for the Security Council to determine 
 the existence of a material breach of the cease-fire.) Therefore, 
 while the US objective was to ensure that the resolution did not 
 constrain the right of action which they believed they already had, 
 our objective was to secure a sufficient authorisation 
 from the Council in the absence of which we would have had no right to 
 act. 
  
 I have considered whether this difference in the underlying legal view 
 means that the effect of the resolution might be different for the US 
 than for the UK, but I have concluded that it does not affect the 
 position. If OP12 of the resolution, properly interpreted, were to 
 mean that a further Council decision was required before force was 
 authorised, this would constrain the US just as much as the 
 UK. It was therefore an essential negotiating point for the US that 
 the resolution should not concede the need for a second resolution. 
 They are convinced that they succeeded. 
  
 23. I was impressed by the strength and sincerity of the views of the 
 US Administration which I heard in Washington on this point. However, 
 the difficulty is that we are reliant on their assertions for the view 
 that the French (and others) knew and accepted that they were voting 
 for a further discussion and no more. We have very little hard 
 evidence of this beyond a couple of 
 telegrams recording admissions by French negotiators that they knew 
 the US would not accept a resolution which required a further Council 
 decision. 
  
 The possibility remains that the French and others accepted OP 12 
 because in their view it gave them a sufficient basis on which to 
 argue that a second resolution was required (even if that was not made 
 expressly clear). 
  
 A further difficulty is that, if the matter ever came before a court, 
 it is very uncertain to what extent the court would accept evidence of 
 the negotiating history to support a 
 particular interpretation of the resolution, given that most of the 
 negotiations were conducted in private and there are no agreed or 
 official records. 
  
 24, The counter view of OP 12 is that this paragraph must imply a 
 decision by the Council. Three particular arguments support that 
 approach: 
  
 (i) when taken with the word "assessment" in OP 4, the language of OP 
 12 indicates that the Council will be assessing the seriousness of any 
 Iraqi breach; this is especially powerful if in truth some assessment 
 is 
 necessary; 
  
 (ii) there is a special significance in the words "in order to secure 
  
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