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 aware that the USA has been arguing for recognition of a broad 
 doctrine of a right to use force to pre-empt danger in the future. If 
 this means more than a right to respond proportionately to an imminent 
 attack (and I understand that the doctrine is intended to carry that 
 connotation) this is not a doctrine which, in my opinion, exists or is 
 recognised in international law. 
  
 4. The use of force to avert overwhelming humanitarian catastrophe has 
 been emerging as a further, and exceptional, basis for the use of 
 force. It was relied on by the UK in the Kosovo crisis and is the 
 underlying justification for the No-Fly Zones. The doctrine remains 
 controversial, however. I know of no reason why it would be an 
 appropriate basis for action in present circumstances. 
  
 5. Force may be used where this authorised by the UN Security Council 
 acting under Chapter VII of the UN Charter. The key question is 
 whether resolution 1441 has the effect of providing such 
 authorisation. Resolution 1441 
  
 6. As you are aware, the argument that resolution 1441 itself provides 
 the authorisation to use force depends on the revival of the express 
 authorisation to use force given in 1990 by Security Council 
 resolution 678. This in turn gives rise to two  questions: 
  
 (a) is the so-called "revival argument" a sound legal basis in 
 principle? 
  
 (b) is resolution 1441 sufficient to revive the authorisation in 
 resolution 678? 
  
 I deal with these questions in turn. It is a trite, but nonetheless 
 relevant observation given what some commentators have been saying, 
 that if the answer to these two questions is "yes", the use of force 
 will have been authorised by the United Nations and not in defiance of 
 it. 
  
 The revival argument 
  
 7. Following its invasion and annexation of Kuwait, the Security 
 Council authorised the use of force against Iraq in resolution 678 
 (1990). This resolution authorised coalition forces to use all 
 necessary means to force Iraq to withdraw from Kuwait and to restore 
 international peace and security in the area. The resolution gave a 
 legal basis for Operation Desert Storm, which was brought to an end by 
 the cease-fire set out by the Council in resolution 687 (1991). 
  
 The conditions for the cease-fire in that resolution (and subsequent 
 resolutions) imposed obligations on Iraq with regard to the 
 elimination of WMD and monitoring of its obligations. Resolution 687 
 suspended, but did not terminate, the authority to use force in 
 resolution 678. Nor has any subsequent resolution terminated the 
 authorisation to use force in resolution 678. 
  
 It has been the UK's view that a violation of Iraq's obligations under 
 resolution 687 which is sufficiently serious to undermine the basis 
 of-the-cease-fire can revive the authorisation to use force in 
 resolution 678. 
  
 8. In reliance on this argument, force has been used on certain 
 occasions. I am advised by the Foreign Office Legal Advisers that this 
 was the basis for the use of force between 13 and 18 January 1993 
 following UN Presidential Statements on 8 and 11 January 1993 
 condemning particular failures by Iraq to observe the terms of the 
 cease-fire resolution. 
  
 The revival argument was also the basis for the use offered in 
 December 1998 by the US and UK (Operation Desert Fox). This followed a 
 series of Security Council resolutions, notably, resolution 1205 
 (1998). 
  
 9. Law Officers have advised in the past that, provided the conditions 
 are made out, the revival argument does provide a sufficient 
 justification in international law for the use of force against Iraq. 
 That view is supported by an opinion given in August 1992 by the then 
 UN Legal Counsel, Carl-August Fleischauer. 
  
 However, the UK has consistently taken the view (as did the 
 Fleischauer opinion) that, as the cease-fire conditions were set by 
 the Security Council in resolution 687, it is for the Council to 
 assess whether any such breach of those obligations has occurred. 
  
 The US have a rather different view: they maintain that the fact of 
 whether Iraq is in breach is a matter of objective fact which may 
 therefore be assessed by individual Member States. I am not aware of 
 any other state which supports this view. This is an issue of critical 
 importance when considering the effect of resolution 1441. 
  
 10. The revival argument is controversial. It is not widely accepted 
 among academic commentators. However, I agree with my predecessors' 
 advice on this issue. Further, I believe that the arguments in support 
 of the revival argument are stronger following adoption of resolution 
 1441. That is because of the terms of the resolution and the course of 
 the negotiations which led to its adoption. Thus, preambular 
 paragraphs 4, 5 and 10 recall the authorisation to use force in 
 resolution 678 and that resolution 687 imposed obligations on Iraq as 
 a necessary condition of the cease-fire. 
  
 Operative paragraph (OP) 1 provides that Iraq has been and remains in 
 material breach of its obligations under relevant resolutions, 
 including the resolution 687. OP13 recalls that Iraq has been warned 
 repeatedly that "serious consequences" will result from continued 
 violations of its obligations. 
  
 The previous practice of the Council and statements made by Council 
 members during the negotiation of resolution 1441 demonstrate that the 
 phrase "material breach" signifies a finding by the Council of a 
 sufficiently serious breach of the cease-fire conditions to revive the 
 authorisation in resolution 678 and that "serious consequences" is 
 accepted as indicating the use of force. 
  
 11. I disagree, therefore, with those commentators and lawyers, who 
 assert 
 that nothing less than an explicit authorisation to use force in a 
 Security 
 Council resolution will be sufficient. 
  
 Sufficiency of resolution 1441 
  
 12. In order for the authorisation to use force in resolution 678 to 
 be revived, 
 there needs to be a determination by the Security Council that there 
 is a violation of the conditions of the cease-fire and that the 
 Security Council considers it sufficiently serious to destroy the 
 basis of the cease-fire. 
  
 Revival will not. however, take place, notwithstanding a finding of 
 violation, if the Security Council has made it clear either that 
 action short of the use of force should be taken to ensure compliance 
 with the terms of the cease-fire, or that it intends to decide 
 subsequently what action is required to ensure compliance. 
  
 Notwithstanding the determination of material breach in OP1 of 
 resolution 1441, it is clear that the Council did not intend that the 
 authorisation in resolution 678 should revive immediately following 
 the adoption of resolution 1441, since OP2 of the resolution affords 
 Iraq a "final opportunity" to comply with its disarmament obligations 
 under previous resolutions by cooperating 
 with the enhanced inspection regime described in OPs 3 and 5-9. 
  
 But OP2 also states that the Council has determined that compliance 
 with resolution 1441 is Iraq's last chance before the cease-fire 
 resolution will be enforced. OP2 has the effect therefore of 
 suspending the legal consequences of the OP1 determination of material 
 breach which would otherwise have triggered the revival of the 
 authorisation in resolution 678. The narrow but key question is: on 
 the true interpretation of resolution 1441, what has the Security 
 Council decided will be the consequences of Iraq's failure to comply 
 with the enhanced regime. 
  
  
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