Global Policy Forum

By Richard Norton-Taylor

Military action against Iraq under existing UN resolutions would be unlawful despite claims to the contrary by ministers - this is the near-unanimous view of international lawyers on an issue which has profound implications for future relations between sovereign states.

Resolution 1441, by which Tony Blair and Jack Straw have laid so much store, simply reminds Saddam Hussein of the "serious consequences" of a failure to disarm referred to in earlier UN resolutions. The phrase falls far short of an instruction to UN member states to use "all necessary means" - the traditional UN euphemism for armed force.

The language of 1441 is restrained precisely because if it had been stronger it would not have got the full support of the security council, many of whose members explained they voted in favour precisely because, in their view, it was not a trigger for authorising force. "The phrase 'all necessary means' was unacceptable; France and Russia would have vetoed it", says Professor Nicholas Grief, barrister and head of the school of finance and law at Bournemouth. "Resolution 1441 is opaque for political reasons", echoes Malcolm Shaw QC, professor of international law at Leicester University. This argument applies even more to subsequent resolutions drafted by Britain and referring back to 1441.

The government's certainty about 1441 authorising the use of force raises the question as to why a new resolution is needed at all. Jack Straw has admitted the government needs a new resolution for political reasons.

In law, claims by Blair and Straw that a French veto would be "unreasonable" is irrelevant. With a veto there will be no new resolution. Ministers might be able to persuade MPs that a draft resolution backed by a majority on the UN security council would in effect amount to a new resolution. While this might strengthen the prime minister's position politically, and even morally, it will make no difference to the legality of a war.

In a legal opinion for CND, Rabinder Singh QC and Charlotte Kilroy say 1441 does not authorise the use of force for three main reasons. First, resolutions adopted by the security council in the past, including resolution 678 passed in 1990 after the Iraqi invasion of Kuwait, show that the language used to authorise force is bold and consistent. Member states are "authorised" to "use all necessary means" or "take all necessary measures" in pursuit of a specified goal. These words are manifestly absent from resolution 1441. The point was forcibly made on Monday by Mark Littman QC in these columns and by Lord Archer, Labour's former solicitor-general.

Second, as a matter of principle international law precludes UN member states from relying on any implied authorisation to use force. Third, the use of force without "clear collective authorisation" would be in conflict with the fundamental principles of the UN charter and in violation of international law.

Vaughan Lowe, Chichele professor of public international law at Oxford University, says UN resolutions should be seen in their contemporaneous context. Resolution 1441 has no "permanent life", he says.

This is also true of earlier resolutions, he and others argue: 687, agreed at the end of the 1991 Gulf war overrode 678, and was effectively part of ceasefire negotiations involving a coalition which no longer exists. In any event, says David Howarth, law fellow at Clare College, Cambridge, and leader of Cambridge City Council, resolution 687 "does not authorise the use of force to enforce" the ceasefire agreement.

Christopher Greenwood, professor of international law at the London School of Economics, challenges this majority view among lawyers, saying that 1441 could trigger previous resolutions, including 678. Those lawyers, like Prof Greenwood, who say there is a case for war under existing UN resolutions, say it is a mistake simply to look at the wording. Instead of dwelling on such phrases as "serious consequences", they say, the emphasis should be on the past UN obligations placed on the Iraqi regime. They make it clear that Iraq should have disarmed in 1991 under UN supervision yet has not done so. The delay is entirely the fault of Iraq, not the UN.

Some say that the UN security council is above the law, or, at least, its members make it up as it goes along. The UN secretary general, Kofi Annan, made clear this week he does not share that view. "If the US and others were to go outside the security council and take unilateral action they would not be in conformity with the [UN] charter," he said.

The UN charter, for instance articles 41 and 42, make it clear war is a matter of last resort. International law traditionally allows for pre-emptive strikes but only in the event of an imminent threat. Few agree Iraq poses such a threat, and particularly with the presence of UN weapons inspectors in the country.

Then there is the question, as Professor Lowe points out, of what force was designed to achieve. Lawyers and Whitehall officials say government ministers have muddied the waters not only by confusing the political and legal significance of UN resolutions but also by suggesting that toppling Saddam Hussein is as much an objective as disarmament. There is no precedent in international law for aiming to use force to change a regime, says Professor Lowe.

That would be a very dangerous precedent at the best of times, even more so, it could be argued, when created by countries overriding a security council veto, as Britain and the US appear to be on the verge of doing.

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