Resolution 1441: Delaying the Inevitable?

United Nations Security Council

Global reaction to passage of the resolution, including that of Arab and Muslim states, has been one of general satisfaction. Whether this is a reflection of actual satisfaction or merely one of temporary relief remains to be seen. The carefully and skilfully crafted resolution holds deep and immediate implications for Iraq if it commits what the resolution calls a "material breach." What those implications are, however, remain somewhat unclear, as the resolution merely cites "serious consequences" for acts constituting "material breach."

Security Council resolutions do not amount to judicially appealable edicts. They are a "final statement" and stamp of approval, and, theoretically and ideally, are reflections of current and established principles of international law. Irrespective, of Iraqi objections to the resolution, Iraq has minimal to nil recourse. Keeping this in mind, however, are there "illegal provisions" within the resolution, or provisions that run against the grain of established principles of international law? Has the Security Council exceeded its mandate in bowing to the will of the United States? If Iraq is found in "material breach," does the resolution prevent the unilateral use of force to coerce compliance, or to go a step further and effectuate a regime change?

Analysis of Resolution 1441

The ill-fated UNSCOM mission, predecessor to UNMOVIC

Inserted near the beginning of the resolution is language stating that the  United Nations is: " Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq, Kuwait and the neighbouring states." Ironically, the framework established subsequent to that language could be construed as a significant impediment to that sovereignty and territorial integrity.

Resolution 1441 endows inspectors from UNMOVIC and IAEA unfettered access to virtually every square inch of Iraqi territory, including the right "to inspect any sites and buildings, including immediate, unimpeded, unconditional, and unrestricted access to Presidential Sites…" Furthermore, it allows inspectors to establish aerial and/or ground exclusion zones, in which inspectors may prohibit Iraqi access to and from designated areas, as well as unrestricted access for unmanned reconnaissance flights (which may amount to objectionable intelligence gathering).

The resolution also gives free reign to inspectors to seize and export "any equipment, materials, or documents taken during inspections, without search of UNMOVIC or IAEA personnel or official or personal baggage." Iraq, pursuant to 1441, is powerless and without recourse within its own territorial boundaries.

Thus the token acknowledgement of Iraq's sovereignty and territorial integrity can be seen as an empty gesture.

A fundamental flaw of this framework is the lack of specificity regarding the exact jurisdiction of inspectors. Resolution 1441's overly broad language, allowing inspectors to seize and export equipment, records, data, etc. within its operations, is language that is equivocal. It does not limit the scope of the inspectors' jurisdiction, who perhaps are enabled to seize and export materials and documentation unrelated to disarmament or weapons of mass destruction.

Article 2 (4) of the United Nations Charter states: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations." Resolution 1441 threatens Iraq with "serious consequences" if it does not relinquish its right to object to and/or prevent inspectors from having unfettered access in Iraq. Iraq's sovereignty and aspects of its territorial integrity have been threatened by 1441, in that conduct short of strict compliance may result in the unilateral use of force, in which the objective will not only be disarmament, but regime change as well.

While on one level resolution 1441 could theoretically be interpreted as insulating Iraq from a unilateral or bilateral military attack without approval from the Security Council, in that a "material breach" is "reported" to the Security Council, the ambiguity of the resolution makes it less than clear in practicum. In paragraph 4 the United Nations Security Council:

Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below.

Paragraph 11 states:

Directs the Executive Chairman… to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including its obligations regarding inspections under this resolution.

Paragraph 12 states:

Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.

US aircraft patrol no-fly zones over Iraq

Almost instantaneously along with Iraq's assent to the resolution, the above provisions were invoked. Iraq's acquiescence to the resolution was manifested through a letter from Iraqi Foreign Minister Naji Sabri to UN Secretary General Kofi Annan. The letter indicated an unconditional acceptance in terse language directed at the United States and Great Britain, as well as an unequivocal denial regarding its alleged possession of nuclear, chemical and biological weapons. A spokesman for the White House argued that such an assertion could be "grounds for military action."

The United States and the Bush administration have made it clear that a "material breach" will be followed by the use of force: "I have told the United Nations we'll be glad to consult with them but the resolution does not prevent us from doing what needs to be done, which is to hold Saddam Hussein to account." In essence and practice, resolution 1441 works merely as a temporary "stay of execution"; the resolution does not rule out a unilateral strike from the United States and/or Great Britain. The resolution merely proffers to Iraq a framework for immediate and unconditional compliance, not a safeguard from threats of invasion. This is despite a clause at the conclusion of the resolution, which purports that the United Nations: " Decides to remain seized of the matter."

The final clause denotes that the United Nations intends to be actively involved. Interpreting this to mean that the United Nations will act to prevent (although it may seek to) the unilateral use of force, if Iraq is in violation, is misguided, because the United States, as a permanent member of the Security Council, can unilaterally veto any attempts at prevention. One can find an almost unfailing trend in Security Council resolutions regarding the Palestinian question and the Israeli-Palestinian conflict. In most Security Council resolutions since resolution 242 (which arguably calls for a complete Israeli withdrawal of lands occupied during the 1967 Arab-Israeli war), the United Nations decided to remain "seized of the matter." To date, Resolution 242 and subsequent resolutions to protect Palestinian rights of self determination and sovereignty have either been vetoed or deemed virtually "bite-less" because of the presence of the United States as a permanent member of the Security Council. Thus, it is a likely consequence that, although the "other" members of the Security Council may try to censure the unilateral use of force, ultimately the power is in the hands of the United States, and to an extent Great Britain, who will likely act as they see fit, rather than according to what is just.

This purposely-occurring "flaw" in the resolution detracts, to an extent, from the purposes for which the United Nations was founded, in that it does not necessarily require the United States or Great Britain, implicitly, to return to the Security Council to seek approval for an invasion. The United States has publicly proclaimed that a primary objective of military invasion is "regime change"; that is, the removal of Saddam Hussein and his Baa'th party, with disarmament as an ancillary objective. One of the purported purposes of the United Nations according to its Charter is:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. ¹

However, if Iraq is legitimately shown to have produced weapons of mass destruction in violation of previous resolutions and international law, and has deliberately made clear omissions and/or misrepresentations to that end, Iraq may rightly be in material breach. Resolution 1441 indicates that Iraq will face "serious consequences" with respect to a "material breach." However, in accordance with the principles and purpose of the United Nations, "serious consequences" of an Iraqi material breach of the resolution should constitute a collective response, not a unilateral one.

Conclusion

In principle, the framework, requirements and realities of Resolution 1441 may run against the grain of principles of fundamental fairness and justice. However, the concept of "absolute sovereignty" is essentially a dead concept in international law, and has given way to notions of "practical sovereignty;" that is, as states become more interdependent, occasions arise when one state or more may exercise limited jurisdiction over that particular state. Chapter VII of the United Nations Charter, under which the United Nations acts in 1441 (which could authorize the use of force), is reflective of this ideal. Legal commentator Anne Bodley understands the application of articles of Chapter VII by the Security Council as a "striking example of the powers of the Security Council to transgress state integrity and sovereignty." ²

Resolution 1441 is truly consistent with the above statement. Although the theory of "absolute sovereignty" is a dead principle in an interdependent global community, states do not summarily relinquish fundamental claims of sovereignty or territorial integrity. By giving absolute and free reign to foreign inspectors within Iraq to investigate, interrogate, exclude territories from the jurisdiction of Iraq, import materials without Iraqi approval, confiscate and export any materials it deems fit, gather reconnaissance and intelligence information openly, the United Nations may have exceeded its powers and ran contrary to its purposes. The Security Council has also failed in its omission of language that requires a subsequent Security Council resolution before the unilateral use of force by the United States and/or Great Britain may be taken. In not requiring a subsequent resolution to that effect, the Security Council has, in a sense, abrogated and exceeded its role as a peaceful arbiter of international conflicts.

Thomas J. Haidon is an American attorney and activist residing in Wellington, New Zealand. He received a Jurisdoctorate (J.D.) with a certificate of international law from the University at Buffalo School of Law and a Bachelor of Arts in Political Science from Niagara University. He has studied at the American University in Cairo and Birzeit University, Palestine. He is currently pursuing an L.L.M. in international law. You can reach him at thaidon@justice.com

1- United Nations Charter Article I, I

2- Bodley, Anne. “Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the Former Yugoslavia”. 31 N.Y.U. J. Int'l L. & Pol. 417 (1999).