5 |
Advice on the legal basis for military action, November 2002 to
March 2003
When a
treaty has been authenticated in two or more languages the text of
each version
is equally
authoritative unless the parties to the treaty have agreed
otherwise.
The terms
of each version are presumed to have the same meaning.
If a
difference in meaning should emerge, the meaning which best
reconciles the texts,
having
regard to the objects of the treaty, shall be the meaning
adopted.”
109.
Referring to a
number of telegrams describing the formal and informal
negotiation
of the
resolution, Mr Wood cautioned:
“If the
matter were ever brought to court, none of these records would be
likely
to be
acceptable as travaux preparatoires35
of the
resolution, since they are not
independent
or agreed records, and the meetings themselves were behind
closed
doors.”
110.
Mr Wood
set out the arguments relevant to the two broad views of
the
interpretation
of resolution 1441. For the first, Mr Wood identified the
considerations
which
suggested that, taken as a whole, the resolution meant that, in the
event of
non‑compliance,
the Council itself would decide what action was
needed.
111.
In relation to
the second, Mr Wood wrote: “UKMIS New York are of the
view
that this
argument is consistent with the negotiating history, and requires
serious
consideration”.
He set out four supporting points for the second view before
identifying
a number
of “possible difficulties”.
112.
Mr Wood
concluded: “Whichever line of argument is adopted” it would “still
be
necessary”
to address what “type of Iraqi non-compliance” would be “of a
magnitude
which would
undermine the cease-fire”. He also re-stated the governing
principles of
necessity
and proportionality for the use of force.
113.
On receipt of
Mr Wood’s letter of 9 December, Ms Adams prepared advice for
Lord
Goldsmith,
including a full set of background papers.36
114.
Addressing the
“two alternative views” on the legal effect of resolution
1441,
Ms Adams
wrote that, while Mr Wood did not “say so expressly”, she
understood
Mr Wood
believed the first view, that resolution 1441 “does not authorise
the use of force
35
The
expression used in the French version of the Vienna Convention in
place of “preparatory work”.
Travaux
préparatoires are regarded
as useful for the interpretation of treaties when the evidence
as
regards
particular words or phrases reveals a common understanding:
Kasikili/Sedudu
Island (Botswana/
Namibia)
ICJ Reports
1999 at pp. 1074-1075, 1101; Avena and
Other Mexican Nationals (Mexico v.
United States
of America) ICJ Reports
2004 at p. 49; Application of
the Convention on the Prevention and
Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro) ICJ
Reports
2007 at
para. 194.
36
Minute
Adams to Attorney General, 11 December 2002, ‘Iraq: Interpretation
of Resolution 1441’.
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