Everyone agrees military action was only lawful if authorised by the Security Council. In November 1990, in resolution 678, it authorised action to liberate Kuwait. By April 1991, that job had been done and resolution 687 affirmed the ceasefire but Lord Goldsmith believes the authority for war did not come to an end there, but lay dormant pending the elimination by Iraq of its WMD and compliance with monitoring and reporting requirements.
By November 2002, resolution 1441 was designed to give the Iraqis a last chance to comply but did not itself authorise force. As Lord Goldsmith says 'the argument that 1441 itself provides the authorisation depends on the revival of the express authorisation to use force given in 1990 by Security Council resolution 678'.
This, says Lord Goldsmith, raises two questions. Is the revival argument sound? If so, can breach of 1441 revive the authorisation? He accepts the revival is controversial and not widely accepted but favours it.
But he also accepts 1441 required the matter to come back to the Council for discussion before the revival could take effect. He thought it unclear whether that meant a further decision had to be made but he though it was for the Council to assess whether Iraq was in material breach of 1441.
It was finely balanced, so he recommended a further resolution authorising force. He thought a case for revival of the old authorisation could be made without a further resolution but only if hard evidence of non-compliance and non-cooperation could be demonstrated. …