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It has been argued that, even if the mandate to use military force given by the November Resolution (678) was terminated by the cease-fire, that mandate was revived as a result of the breach of the cease-fire conditions. This is one of the points made by Professor Carey. It is also the tenor of ambassador Pickering's statement. Stated differently, this argument holds that, even if the effect of the cease-fire was to eliminate the military mandate given by the November Resolution (678) or to reduce it to a residual level, the entire mandate under that resolution has been revived by reason of Iraq's breach of its inspection obligations.
According to this line of argument, which is adopted by several of those favouring the US position, the cease-fire is conditional. It is pointed out that the cease-fire came into effect pursuant to the April Resolution (687), and since that same resolution sets forth detailed inspection requirements which were accepted by Iraq,[26] compliance with these requirements should be regarded as a condition of the cease-fire; and if Iraq starts obstructing the inspections again, the cease-fire should be regarded as terminated. Accordingly, the military mandate given by the November Resolution (678) could be regarded as revived. This would mean that the US and its coalition partners would be entitled to take military action pursuant to Resolution 678 for the purpose of enforcing the UN's inspection rights. This line of reasoning ignores the fact that the April Resolution (687) contains nothing specifying that the cease-fire is to be conditional upon Iraq's compliance with the inspection requirements. It contains nothing to the effect that noncompliance is to be dealt with by the coalition states through revival of the military mandate given by paragraph 2. On the contrary, paragraph 34 of the resolution specifies that problems with implementation of the resolution are to be dealt with by the Security Council itself. Paragraph 34 reads as follows:
34. [The Security Council] . . . decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area. Paragraph 34 makes it clear that, in the event of a problem arising from Iraq's breach of its inspection obligations, the responsibility for dealing with the problem is placed not in the hands of the coalition states but in the hands of the Security Council itself. Those favouring the US position might argue that, despite the absence of express words making the cease-fire conditional, the general tenor of the April Resolution (687) is such that it should be interpreted as making the cease-fire conditional by implication. But even if this argument were accepted, paragraph 34 still specifies that problems with implementation must be referred to the Security Council. Furthermore, the argument in favour of the cease-fire being conditional ignores another problem. Assuming the cease-fire agreement, which is incorporated in the April Resolution (687), was conditional, its termination would not occur automatically. Action by the Security Council would be necessary. Specifically, the Security Council would have to:
These actions would have to be taken by the Security Council, not by the US, since the US is not a party to the agreement. Since the Security Council has done neither of these things, both the April Resolution (687) and the cease-fire, even if they could be said to be conditional, remain in full force and effect. The argument for conditionality also ignores the fact that, if the Security Council were to take steps to terminate the agreement, the effect would be not only to terminate the cease-fire, but also to relieve Iraq of all further obligation to permit inspections. After exercising its option to terminate the agreement, the Security Council would be left with no obligations to enforce. |