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A Geopolitical Question, Not Simply a Legal One


Wednesday, Jan. 08, 2003

Later this month, senior United Nations weapons inspector Hans Blix will deliver his first full report on Iraq's compliance--or lack of compliance--with U.N. Security Council Resolution 1441.

The resolution was adopted on November 8 of last year. It states that "false statements or omissions in the declarations submitted by Iraq . . . and failure by Iraq at any time to comply with, and cooperate fully in the [resolution's] implementation" will be considered a "material breach of Iraq's obligations" under the resolution.

What is a "material breach"? Resolution 1441 does not define the term--and this ambiguity could prove important both for the questions of whether there will be war with Iraq, and if there is, whether that war will enjoy international support.

Based on how the term functions in other contexts, a material breach would appear to be, very roughly, a breach that is important, not trivial--and one that is important, in particular, to the purposes the breached instrument serves. But defining a material breach in the Iraq context may be as tricky as it is significant.

The Consequences of Material Breach, According to the Resolution

Before analyzing what "material breach" is, exactly, let us take a quick look at what happens, under the Resolution, if a material breach occurs.

The Bush Administration and the news media have sometimes suggested that a finding of a "material breach" will automatically trigger war with Iraq. But in fact, Resolution 1441 states that in the event of a material breach or other Iraqi interference or failures to comply with disarmament obligations, the Security Council will "consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security." That is, the resolution itself expressly considers material breach to be a trigger for further deliberation, not automatic war.

However, the resolution also "recalls that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." (There is evidence that prior U.N. resolutions were flouted.)

Resolution 1441 appears to speak out of both sides of its mouth because it is a compromise document. It was the result of protracted negotiations between, on the one hand, the United States and the United Kingdom, and on the other hand, other permanent members of the Security Council such as France and Russia.

Accordingly, Resolution 1441 may be seen as striking the following deal: The U.S. and U.K. agreed that before going to war against Iraq, they will return to the Security Council for a determination by that body of whether Iraq is in material breach. Meanwhile, the other Security Council members agreed that if a material breach is found, they will authorize military action to oust Saddam Hussein from power.

What is a Material Breach? Easy Cases and Hard Cases

With so much riding on a finding of "material breach," how should that term be understood? Even without a definition in Resolution 1441, common sense suggests the proper resolution of some obvious cases.

For example, if U.N. weapons inspectors find nuclear warheads stashed underneath Saddam Hussein's mattress, that fact--along with the Iraqi regime's prior failure to disclose the existence of these warheads--would constitute an obvious material breach.

Likewise, at the other extreme, if it turns out that some of the thousands of pages Iraq produced last month contain typographical errors (as they almost surely do), that would not constitute a "material breach." (Indeed, it probably would not constitute a breach at all.)

Of course, it is possible to imagine numerous scenarios in between these two extremes. Iraq may well have substantial stockpiles of weapons of mass destruction and an ongoing chemical and biological weapons research program, but U.N. inspectors, with only limited access to the most highly sensitive U.S. intelligence reports, may be unable to find direct evidence of the stockpiles and programs. If they only have circumstantial evidence, can they still conclude that a material breach has occurred? That may be the issue that, in reality, the inspectors, the Security Council states and, indeed, the world must confront.

Absent a smoking gun, when it reconvenes to consider the coming Blix report, the Security Council will have to decide whether Iraq's various omissions and misstatements (those that are more serious than typos, of course) are so grave as to constitute a material breach.

Understanding Material Breach--A Parallel in Contract Law

The term "material breach" was not invented in Security Council Resolution 1441. It is commonly used in contract law to denote a serious contract violation. An example illustrates the concept.

Suppose that a computer manufacturer signs a contract with another company for the latter to supply a thousand keyboards per month for three years. (This type of deal is called an "installment contract.") For five months, the keyboard maker complies with its obligations, but then in the sixth month it delivers the keyboards three days late. The delay could be costly to the computer manufacturer, and the keyboard maker would accordingly be obligated to compensate the computer manufacturer for its lost profits.

However, the delivery delay would not result in the contract's termination. The keyboard maker could continue to expect to supply keyboards at the contract price every month for the remaining two and a half years of the contract.

Put another way, the late shipment is a breach of contract but not a material breach. A material breach only occurs when one party so completely fails to hold up its end of the bargain that the other party is excused altogether from further performance under the contract.

Contracts sometimes spell out what counts as a material breach. For example, suppose that our computer manufacturer uses low-inventory "just-in-time" production methods, so that any delay is extremely costly. Its lawyers might then have written into the contract that "time is of the essence," or more precisely still, that a delay of more than one day shall constitute a material breach. In this way, a delay that might, in another context or another industry, have seemed relatively minor, is deemed by the parties, in this context, this industry, and this contract, to be material.

When a contract does not specify whether a particular term is essential to it (and hence whether a breach of that term is "material)", courts must adjudicate the question. They do so by referring to the general terms of the contract, standard industry practice, and the course of dealing between the parties. In the end, the determination whether a particular breach was material is often a judgment call.

Material Breach in Iraq? What the Security Council Will Have to Decide

The Bush Administration has already announced that it considers Iraq to be in material breach of Resolution 1441. However, it has not yet made public the evidence showing that Iraq's declarations to date are false.

Certainly there is considerable evidence of Saddam Hussein's past weapons programs--his horrific treatment of the Kurds being the most prominent example. But that is not the main concern of Resolution 1441, which focuses not on the past, but on the present.

Thus, if the Administration does not release further evidence, and if the Blix report is ambiguous, the Security Council will be left in the position of a judge trying to decide whether there has been a material breach of a contract. It will be required, that is, to make a judgment call.

At that point, it may be useful to recall one more feature of contract law: when one party to a contract is in material breach, the other party has the option of terminating the contract, but is not required to do so. If our computer manufacturer believes that future shipments from the keyboard supplier are still a good deal, then notwithstanding a time-is-of-the-essence clause, it can continue the contract in force.

If we are to continue the analogy, it becomes clear that the U.N. Security Council will really face two questions when it receives the Blix report: First, has there been a material breach? And second, if so, what should be done? Even in the event of a material breach, the Security Council could still decide to continue "dealing" with Iraq--sending in inspectors, trying to hold it to its obligations, and imposing sanctions other than all-out war.

Despite the implicit "deal" I described above between the U.S./U.K. sponsors of Resolution 1441 and the other Security Council members, Resolution 1441 does not actually commit the Security Council to authorize war in the event of a material breach. That decision remains to be made. Thus, like the computer manufacturer in my simple example, the Security Council may legitimately decide that continuing the relationship--here, continuing weapons inspections--is the more prudent course.

A Difficult Question, And Not Simply a Legal One

To be sure, one of the factors the Security Council must consider in deciding whether to resort to war in response to a material breach is its own credibility. At some point, continued warnings only serve to invite defiance.

The Bush Administration argues that we have already passed that point with Iraq, and perhaps that is so. But if it is, that must be because maintaining the credibility of the U.N.--and, let's face it, the U.S.--outweighs the factors that counsel against war.

At the end of the day, the question whether a material breach of Iraq's obligations under Resolution 1441 should trigger a war requires the Security Council (and the U.S., which might move forward unilaterally) to balance the benefits of war against its considerable, and largely unpredictable costs.

The benefits include not just the credibility of U.N. and U.S. threats but also the elimination of a dangerous dictator. The costs include the loss of lives of soldiers and perhaps civilians, in Iraq and possibly elsewhere as well.

Weighing these costs and benefits is profoundly difficult. And the issue is not, despite the legalistic language of "material breach," simply a question of legal interpretation. It is a moral, practical, and political question as well.

Michael C. Dorf, a FindLaw columnist, is Professor of Law at Columbia University School of Law.

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