From: Brett Paatsch (paatschb@ocean.com.au)
Date: Tue Feb 25 2003 - 21:46:38 MST
Two plans have been presented to the Security Council in
"closed-door" consultations. These are "alternative" attempts
to resolve the current situation between the UN and Iraq.
http://www.un.org/apps/news/story.asp?NewsID=6256&Cr=iraq&Cr1=inspect
(I provide the above just as background for those interested
and point out that because the Security Council met "closed-door"
the two plans are not available for public viewing.
However today's editorial in the Australian (sorry link is pay only),
entitled "UN is out of time on Iraq", states "The draft asserts
that Iraq is in breach of at least 10 council resolutions...". I rang
the PA of the editor and asked "How is it that this statement is
able to be made?" and am still awaiting a call back. No breath
holding here. )
So, let me be as up-front as befits the circumstances.
In my opinion, by objective reading, Iraq (under Saddam
Hussein) *IS* in material breach of Resolution 1441.
However, I am not the Security Council and so I am not
authorised to make this decision. And neither is any
subset of the Council's members voting in an accord of less
than 9 or in the presence of a permanent member veto. This
has important ramifications.
The Security Council is the UN body charged with the task
of maintaining effective international peace and security and
ONCE it becomes "seized of the matter" pertaining to
such a decision (as is clearly the case with 1441 from which
the bolded quote derives), it is the ONLY body under the UN
Charter that has the authority to go to war against a Member
State by invading that Member State's sovereign territory.
I have "heard" phrasing such as "it may be necessary to step
outside the framework of the UN on this". This is spin for
saying it may be necessary to breach the UN Charter. And
indeed breaching the UN Charter might be valid but to do this
without openly acknowledging that it was being done would be
a very serious matter. All reasonable citizens of open societies
ought be concerned when Permanent Security Council Members
breach the Charter as there is no provision to remove them and
confidence in treaties must necessarily be undermined.
I have read and heard in the last two days some media and
political commentary to the effect that it is not necessary for
a new Security Council resolution to be passed in order for
a military invasion of Iraq to occur without breaching the UN
Charter. This is wrong. If the media or if government officials
have been advised that such is the case then they have been ill
advised. If Bush or other heads of Member Nations ACT on
such advice they will be in breach of the UN Charter.
But please don't take my word for this: a straight forward reading
of 1441 (which all 15 members of the Security Council agreed to)
reveals: --
(NB. In the following the brackets (), [], and bolding are mine
and are included for clarity only. The accuracy of excerpting
can be readily checked by reference to the 5 page text of 1441.
Here again is a link to the US State Dept copy.
http://usinfo.state.gov/topical/pol/terror/02110803.htm.
1441 starts below a page of State Dept. commentary. ).
---------------------------------------------------------------------------------
--"The Security Council" (including the US)...
"Reaffirming the commitment of all Member States (including
the US) to the sovereign and territorial integrity of Iraq, .."
"Decides".."to afford Iraq, by [1441], a final opportunity to
comply with its disarmament obligations under relevant
resolutions of the Council;..."
"...failure by Iraq at any time to comply with, and cooperate fully
in the implementation of, [1441] shall constitute a further material
breach of Iraq's obligations and will be reported to the Council
(as a whole) for assessment...."
----------
Thus, it is the Security Council that gets to decide the
meaning of key terminology in 1441, and specifically, it is the
Council (and not the US or any group of Members less than
a quorum) that gets to decide when the "final opportunity" has
past. A non-Security Council decision on this point is a usurpation
of the Security Council's authority and an undermining of the
UN Charter (unless my reasoning which I have spelt out here for
anyone to see is wrong).
The US ceded any authority it otherwise had to decide on the
meaning of key terminology when it placed the matter in the hands
of the Security Council and signed 1441 which includes the
quotations above.
The US does not merely have a slight preference for getting Security
Council endorsement before invading Iraq it NEEDS it to avoid
breaching it's own obligations under the UN Charter. As I have
mentioned elsewhere, breaching the Charter can be justified under
some circumstances, but it is not a trivial thing to be done
lightly, as, once it is done, all things that derive their legitimacy from
the UN Charter being an agreement between Member States that
will honour their obligations cease to have credible foundation.
As I understand it, any Permanent Security Council member
can veto a resolution including a resolution that deems or implies
that the "final opportunity" described and committed to by the
Security Council under 1441 has past. Such passage is itself
a matter for the Council.
This makes the recent statement that any French veto of
the new resolution would be "an unfriendly act" - harsh words
in diplomatic circles - informative.
France's Permanent Member veto cannot be gotten around without
breaching the UN Charter. And such a breach is no trifle.
Hence my conviction that Bush should go direct to Chirac
in the interests of resolving matters in an optimal way for the
UN and for the US as well.
- Brett Paatsch
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