Several of those arguing for the US position contend that paragraph 2 of the November Resolution (678) authorizes the military action currently contemplated because its purpose is essentially to restore security in the area which is one of the purposes delineated in paragraph 2. This argument focuses on the concluding words of paragraph 2:

2. [The Security Council . . . acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

Others have argued that the action is authorized under paragraph 2 on the basis that its purpose fits within the words to uphold and implement . . . all subsequent relevant resolutions.

Before paragraph 2 can be relied upon to authorize actions of any type, regardless of the purpose of the action, several preliminary hurdles must be cleared.

1. As explained above in Section V, paragraph 6 of the April Resolution (687) brings the cease-fire into effect and therefore terminates the military mandate given by paragraph 2. Unless paragraph 2 is revived in some way, it is no longer effective; it is a dead letter.

2. For reasons explained in Section VI, there is no substance in the argument that paragraph 2 is revived as a result of the Iraqi noncompliance. Paragraph 2 therefore remains a dead letter.

3. Section VI refers to the argument that the cease-fire agreement should be regarded as conditional on full implementation by Iraq of its inspection obligations, in default of which, paragraph 2 would be revived. But even if this argument is accepted, the condition does not produce a revival of paragraph 2 automatically. As explained in Section VI, until the Security Council decides to invoke it, the condition remains dormant and the authority under paragraph 2 remains a dead letter.

4. Even if all the above hurdles could be cleared so as to revive paragraph 2, paragraph 34 of the April Resolution (687), for reasons explained in Section VI, would prevent paragraph 2 from being used for purposes of dealing with a breach of the April Resolution (687). Since the announced purpose of the proposed operation is to deal with Iraq's breach of its inspection obligations under that resolution, the effect of paragraph 34 is to prohibit such an operation without specific Security Council authority.

Assuming all these preliminary hurdles can be cleared, those arguing on the basis of the words to restore security in the area would have several additional hurdles to deal with.

5. Those advancing this line of argument might take the position that they have no difficulty in clearing the last-mentioned hurdle according to which paragraph 34 blocks any use of military force under paragraph 2 for purposes of enforcing Iraq's inspection obligations. They may argue that, although the enforcement of inspection obligations may be the operation's immediate goal, the ultimate goal of the operation is to restore security in the area. Accordingly, the prohibition implied in paragraph 34 would not apply.

But even if restoring security in the area could be said to be the ultimate goal (notwithstanding the fact that the US has never claimed as much), the fact that the immediate goal of the operation is to compel Iraq to comply with the April Resolution (687) means that the operation is still prohibited by paragraph 34.

6. The words "restore security in the area" should not be treated separately from the phrase from which they are taken: "to restore international peace and security in the area." When the entire phrase is used and when the context is recalled, it becomes apparent that the Security Council, by using this phrase, was intending to deal with a situation involving the last stage of a war and was trying to restore the situation to something approaching normalcy. When the cease-fire proved to be a success, that purpose must be taken to have been accomplished. The resolution uses the word "restore" not "restore and maintain." In other words, for purposes of paragraph 2, "international peace and security in the area," should be viewed as having been restored. Accordingly, the words "restore security in the area," should be considered as being no longer operative.

7. The next hurdle starts with the assumption, albeit dubious, that it would be possible to treat the words "to restore security in the area" separately so as to give them a meaning that is separate and detached from the concept of restoring international peace in the area. Such a meaning would not be related to the situation in April 1991; instead, it would look to the future. The argument would be that the words "to restore security in the area" can be used to authorize the use of military force in the future for the purpose of dealing with future problems involving a threat to security in the area.

In order to give credence to this line of argument, it would be necessary to interpret the November Resolution (678) as giving authority in perpetuity for military action to be taken against Iraq by any one or more of the coalition states whenever any of them considered that security in the area had been placed in jeopardy and needed to be restored. It would be manifestly unreasonable to interpret a Security Council resolution as giving an open-ended mandate for the use of military force by a member state to deal with vaguely defined problems at any time in the future whenever the state considered that the situation warranted it.

It must be concluded that there is no validity in the argument that paragraph 2 of the November Resolution (678) would justify the proposed military operation on the basis that its purpose can be regarded as being to restore security in the area.

But there are others who argue that the proposed military action can be justified on the basis of the words all subsequent resolutions. In the unlikely event that these arguments managed to clear the four preliminary hurdles noted above, there is one additional hurdle to be cleared.

8. These arguments proceed on the basis that the term "all subsequent relevant resolutions" includes the April Resolution (687) and since the purpose of the action is to uphold and implement 687 by inducing Iraq to permit the inspections required by 687, the action is clearly authorized by the November Resolution (678). (This is one of the arguments referred to in Section IV above put forth by Professor Carey; it is also mentioned by Professor Kirgis.)

But this line of argument is based on the assumption that the reference to "all subsequent relevant resolutions" is intended to include not only resolutions in existence on 29 November 1990, but also all resolutions relating to Iraq that might be adopted at any time thereafter.

A more reasonable interpretation would be that the words were intended to mean only resolutions adopted subsequent to Resolution 660 in existence at the time the November Resolution (678) was adopted. There are eleven such resolutions and they are all listed in the first preambular paragraph in the November Resolution (678). There is little doubt that it is these eleven resolutions that are referred to in paragraph 2.

If the argument favouring the US position were adopted, it would mean that the Security Council intended its military mandate in the November Resolution (678) to extend beyond Resolution 660 and the eleven then-existing resolutions so as to cover enforcement of all future resolutions relating to Iraq. To interpret the resolution as giving such an open-ended mandate would be entirely unreasonable. This interpretation would mean the mandate was valid in perpetuity unless subsequently revoked. The point is even more cogent when it is recalled that any move to revoke the mandate would be subject to the veto.

It is therefore clear that the correct interpretation of the words in question is that they are intended to refer to the eleven resolutions adopted subsequent to Resolution 660 as listed in the preamble. Accordingly, it is only necessary to ask whether the purpose of the military action is to uphold and implement any of the eleven resolutions listed in the preamble of the November Resolution (678).

A glance at the summaries of the eleven resolutions given above in Section III demonstrates that the purposes of the proposed action could not include implementing or upholding any of these resolutions. The US and its partners have made it abundantly clear that the purpose of the proposed action is to make it possible for UNSCOM to carry out the inspections in the manner provided by the April Resolution (687). None of the eleven resolutions contains anything about inspections.

For all the above reasons, it is apparent that the scope of paragraph 2 of the November Resolution (678) is such that, no matter what line of argument is used, that paragraph cannot be used to justify the military operations against Iraq currently being contemplated. But before paragraph 2 is entirely eliminated as a source of authority for the proposed military action, it is necessary to consider four remaining arguments. They are dealt with in the next section.