International law update

[Retracted as incorrect; see below]

The US and UK formally submitted their justification for invading Iraq to the Security Council. I can’t find the full text on line, but it appears that the logic of the argument is that SC 687 created a cease-fire with conditions to end the first Gulf War, and that, the conditions having been broken, the cease-fire ends and war can be resumed. SC 1441 enters only as a statement of a chance missed by Iraq to come back into compliance, not as an independent legal basis for action.

The cease-fire logic makes sense to me, though one international lawyer quoted in the story says that there was language in that earlier resolution reserving further action to the Security Council rather than delegating it to the belligerents.

Be that as it may, it appears that the argument made by the President to the nation — that SC Res 1441 authorized our use of force if its terms were not complied with — was too weak legally to even offer in a formal document.

Presumably, no one in Baghdad right now cares much. But they’ve always had rulers who lied to them at will, ambassadors who made deceptive statements in international fora, and a press too “patriotic” to complain about it. It’s a relatively new experience for an American.

[Earlier post here. Josh Marshall started it.]

UPDATE AND RETRACTION Thanks to a reader, who found the full text on line, I now know the above to be substantially incorrect.

The logic of the statement is as follows:

1. SC Res. 678 authorized the first Gulf War.

2. SC Res. 687 created a conditional cease-fire, with elimination of Iraqi WMD among the conditions.

3. SC Res. 1441 found that Iraq was in material breach of those conditions, and gave a last chance for compliance.

4. There has in fact been no compliance.

5. Therefore, the cease-fire has been breached.

6. Therefore, the original resolution authorizing the use of force is now again in effect, and we’re acting under it.

If that’s right as a matter of law, then Ambassador Negroponte was less than candid in assuring the Security Council that it would get another bite at the apple if it passed 1441 in its modified form. If it’s not right as a matter of law — if in fact SC Res 687 reserved to the Council, rather than the belligerents, the authority to decide how to respond to material breaches, which is how I would have read Paragraph 34 (Security Council “remains seized” of the question), then it seems clear that 1441 provides no independent authority under which the US and UK can now act.

But in any case the assertion above that the Ambassador did not cite to the Security Council the argument that the President made to the public is simply incorrect. He did. It was imprudent of me to rely on press reports in asserting the contrary.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: