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Re: Foreign Office response to Voices in the Wilderness UK postcards to Robin Cook (fwd)

On Tue, 27 Oct 1998, CI Rowat wrote:

> 3. Iraq is well aware of what it needs to do to ensure that the process of
> lifting sanctions can begin: it must comply with its obligations under the
> relevant Security Council resolutions, in particular its obligations with
> respect to its weapons of mass destruction programme.  According to
> the terms of SCR 687 [which extended the sanctions after Iraq's expulsion
> from Kuwait], only when UNSCOM and the IAEA have reported that
> Iraq has fully complied can the Security Council begin to consider lifting
> the oil embargo.

> 3. Proponents of a hard line on Iraq point to SCR 687 (which links the
> sanctions to Iraq's weapons) to validate their position.  If SCR 687
> causes the Security Council to violate its commitment to uphold the UN
> Charter, though, there may be conflicting legal principles at work.  The
> UN Charter affirms, "universal respect for, and observance of, human
> rights", which include (as defined in the Charter and the Universal
> Declaration of Human Rights) rights to life, health, education and
> employment.  As these rights have arguably been violated in the case of
> Iraq (although there are signs that caloric intake has increased) appeal to
> SCR 687 may not be sufficient....

A couple of comments:
The Security Council is not legally bound by its past resolutions, and can
(and often does) supercede past resolutions by creating new obligations or
freedoms - it would not be 'violating' them. Therefore, the SC need not
wait until the terms of SCR687 para.22 are met to lift the economic
sanctions. This is reinforced by the fact that UNSCOM is a subsidiary body
to the SC, and has no duties apart from those given to it by the SC; and
that SCR687 para.22 only calls for SC (not UNSCOM) determination that
(inter alia) para.9 (re UNSCOM's task) is fulfilled. Reference to SCR687
by HMG is of no consequence to what future resolutions HMG can agree to in
the SC. As far as the SC goes, then, para.22 is no more than a non-binding
timetable, creating a non-legal expectation of annulment of sanctions on
Your comments are more directed at the question: would it be legitimate
for a state to ignore the economic sanctions, in defiance of SCR661 -
687secF. The legal argument would not be that SC resolutions have somehow
fallen into desuetude because so many other states ignore them (tho this
may be more persuasive politically, it cannot have legal ramifications,
any more than I could plead this way if I were caught cycling on a
pavement). The lawyer would argue i) that economic sanctions as they stand
violate the fundamental principles of international law, the jus cogens -
basic human rights fall into this category (rights of the child, right to
food &c); sending food, medicine &c would be in conformity with this law; 
and ii) any importation of eg foodstuffs or medicine without approval
of the sanctions committee could be excused under the international 
legal defence of necessity - unavoidable actions specifically designed to
prevent loss of human life in situations of emergency. 
Let me know what you think of the argument & if you can spot any mistakes.

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