On May 22, 2003, the United
Nations Security Council adopted Resolution 1483 by
a vote of 14-0, with one member (Syria) not present.
The resolution was submitted by Spain, the United
Kingdom and the United States after undergoing revisions
to satisfy other members of the Security Council.
In it, the Council determined that the situation in
Iraq still constitutes a threat to international peace
and security; consequently the resolution was adopted
under Chapter VII of the U.N. Charter, which gives
the Council authority to make decisions that are binding
on all U.N. member states.
The resolution is quite detailed, containing
27 operative paragraphs and a long preamble. This
Insight will address only those provisions that have
noteworthy legal significance, after considering three
overarching international law issues that the resolution
arguably raises.
The first overarching issue is whether
Resolution 1483 could be regarded as an implicit approval
of the legality of the coalition forces' invasion
of Iraq. The United Kingdom/United States legal justification
for the invasion was based primarily on previous Security
Council resolutions dating back to Resolution 678,
which was the basis for the military action against
Iraq in 1991. That justification has not been universally
accepted. [1] Nothing in Resolution 1483 explicitly
approves of the 2003 invasion. The resolution does
refer to the United States and United Kingdom as occupying
powers, but the duties of an occupying power exist
whether or not it was lawful to use the armed force
that resulted in the occupation. Consequently no
implication as to the lawfulness of the invasion can
be drawn from the resolution's recognition of the
U.S. and U.K. as occupying powers.
The resolution also provides for the
appointment of a U.N. Special Representative for Iraq,
with responsibilities relating primarily to coordinating
humanitarian and reconstruction activities, promoting
the return of refugees, economic reconstruction and
the protection of human rights, encouraging other
restorative efforts, and working intensively with
the occupying powers to establish the necessary institutions
for representative governance in Iraq. It might be
argued that this Security Council authorization of
U.N. involvement in post-conflict Iraq serves as a
tacit approval of the use of force that led to the
removal of the non-representative government of Saddam
Hussein. A similar argument was heard when the Security
Council adopted Resolution 1244 (1999), providing
for the deployment under U.N. auspices of international
civil and security personnel in Kosovo after the 1999
NATO bombing campaign in Serbia. An Annex to Resolution
1244 expressly called for substantial NATO participation
in the post-conflict security presence. [2] There is nothing comparable in Resolution
1483, nor is U.N. involvement in post-conflict Iraq
intended to be nearly as extensive as it was in post-conflict
Kosovo under Resolution 1244. Thus, even if Resolution
1244 and the subsequent U.N. involvement in Kosovo
could be seen as tacit consent to the NATO use of
force, it would be stretching the precedent to similarly
construe Resolution 1483. Of course, even if Resolution
1483 does not tacitly approve of the use of force
against Iraq, that simply means that the Security
Council has not made a judgment one way or the other
on the legality of the invasion.
The second overarching issue arises from
some statements emanating from Iraq and elsewhere
that Iraq is no longer "sovereign" while it is under
occupation. It is unclear whether these statements
refer to what might be called "internal sovereignty"
(the ability of a population to govern itself) or
to sovereignty in the international law sense (the
capacity to have the rights and obligations of a nation-state
on the international scene). If the former, it is
true that the people of Iraq will be subject to the
control of the occupying powers at least for the time
being. Internationally, though, the fact that a country
is occupied and is under the effective, but temporary,
control of the occupying powers does not affect its
continuing status as a sovereign state. Iraq remains
a state as a matter of international law, with rights
and obligations toward other sovereign states. The
Security Council has imposed restrictions on some
of those rights and obligations, and for the time
being the occupying powers will act on behalf of Iraq
in carrying them out, but Iraq's sovereignty under
international law remains intact.
The third overarching issue has to do
with what may be an emerging right under international
law to a democratic form of government.
[3] Resolution 1483 refers in several places
to the establishment of representative governance
in Iraq. As has been mentioned above, the mandate
of the U.N. Special Representative for Iraq, Sergio
Vieira de Mello, prominently includes working toward
the creation of an internationally recognized, representative
government of Iraq. On several previous occasions,
the United Nations has participated in organizing
and/or supervising free elections after decolonization
or the demise of a dictatorship, and the Security
Council has even authorized the use of force (by "all
necessary means") to rid Haiti of a military dictatorship
and to enable the elected President to return. [4] The U.N. General Assembly has emphasized the
principle that "the authority to govern shall be based
on the will of the people, as expressed in periodic
and genuine elections."
[5] Resolution 1483 may be seen as a further
step in the development of this principle.
The preamble to the resolution affirms
"the need for accountability for crimes and atrocities
committed by the previous Iraqi regime." Iraq is
not a party to the Statute of the International Criminal
Court, and in any event, many of the crimes would
have occurred before the entry into force of the Statute
(on July 1, 2002). The resolution does not establish
a criminal tribunal for Iraq, but the Council could
eventually set one up along the lines of those already
established for Yugoslavia and Rwanda.
As mentioned above, Resolution 1483 confirms
that the United States and United Kingdom are occupying
powers in Iraq. It specifically calls upon them to
comply fully with the obligations on occupying forces
imposed by the Geneva Conventions of 1949 and the
Hague Regulations of 1907. [6] In this connection, the Security Council could be said to
be acting quasi-judicially as a body making a determination
that certain obligations under international law apply
to the United States and United Kingdom. The U.N.
Charter does not give the Council formal power to
adjudicate, but this kind of determination nevertheless
seems to fall within its authority under Chapter VII
of the Charter to restore international peace and
security in the area.
Some other decisions in Resolution 1483
are not as clearly related to restoration of international
peace and security in and around Iraq. For example,
in paragraph 7 the Council decided that all U.N. member
states must take appropriate steps to facilitate the
return of Iraqi cultural property illegally removed
from institutions and other locations in Iraq, including
the prohibition of trade or transfer of such items.
In paragraph 20, the Council decided that all export
sales of petroleum, petroleum products and natural
gas from Iraq must "be made consistent with prevailing
international market best practices, to be audited
by independent public accountants . . . ." In paragraph
22, the Council decided that until December 31, 2007,
exports of these products from Iraq and the proceeds
of their sale are to be immune from legal process
in all states, unless access to the proceeds is necessary
to satisfy liability imposed in a legal proceeding
for damage caused by an oil spill or other ecological
accident occurring after the adoption of the resolution.
It could be argued that these quasi-legislative
measures extend beyond the Security Council's mandate
in the U.N. Charter because they are not strictly
related to restoration of international peace. But
taken in the larger context of crafting a framework
for rebuilding a stable and viable Iraq, which in
turn would be important to the maintenance of peace
in the area, the Security Council may need to exercise
powers that, if examined individually, might not under
all circumstances be "necessary" for keeping the peace.
The Council seems to have so determined.
An issue that could arise in the United
States is whether such Security Council decisions
as those in paragraphs 7 and 22 would be self-executing,
i.e., whether they would have legislative effect
in proceedings in U.S. courts. For example, if a
plaintiff asserting a claim against Iraq or an Iraqi
instrumentality in a U.S. court were to file a motion
to attach a shipment of petroleum from Iraq that has
arrived in the United States, would paragraph 22,
by itself, cause the court to deny the motion? The
fact that paragraph 22 is binding on the United States
as a matter of international law does not necessarily
mean that it establishes a rule that would be enforced
by a domestic court of the United States in the absence
of an implementing Act of Congress.
The legal effect of binding Security
Council decisions is quite similar to the effect of
treaties on the parties to them. Not all treaties
are self-executing in the United States. In general,
treaty provisions that establish reasonably definite
rules and that appear to be directed at courts without
contemplating any legislative elaboration are considered
self-executing. Paragraph 22 of Resolution 1483 arguably
would meet that test since it identifies the products
that are to be immune from attachment and directs
states to recognize their immunity. But it does decide,
in addition, "that all States shall take any steps
that may be necessary under their respective domestic
legal systems to assure this protection." A domestic
court might seize upon this language to find paragraph
22 non-self-executing, but the language seems merely
to be a standard admonition to do whatever is necessary,
without saying that domestic steps are actually necessary.
Paragraph 7, with its vague reference to "appropriate
steps to facilitate the safe return" of cultural property,
probably would not be self-executing in the United
States. In any event, if these questions come up
in a U.S. court, the State Department probably would
take a position on them and a court would be likely
to give great weight to the Department's views.
Under Resolution 1483, the Special Representative
for Iraq has the responsibility to coordinate humanitarian
and reconstruction assistance by U.N. agencies and
between those agencies and non-governmental organizations.
But, as noted above, the mandate of the Special Representative
does not end there. Paragraph 8 of the resolution
also calls on him, in coordination with the occupying
powers, not only to work toward such goals as restoring
and establishing institutions for representative governance,
but also to promote conditions for sustainable development
and for the protection of human rights. Exactly how
far these mandates extend will have to be established
by practice when the Special Representative is in
place in Iraq. At a minimum, though, the mandates
would give him standing to make proposals to the occupying
powers in the areas mentioned and to object if, for
example, it appears that the occupying powers are
not adequately protecting human rights (which presumably
would include economic, social and cultural rights,
as well as civil and political rights).
Reflecting a concession made by the United
States and United Kingdom, the Security Council decided
to review the implementation of the resolution within
12 months, and to consider further steps that might
be necessary. At that time the Special Representative's
powers could be altered, and other adjustments could
be made in light of developments related to the occupation
of Iraq.
[1] See ASIL Insight, Armed
Force in Iraq (March 2003), and Addendum
(April 2003), for the arguments pro and con.
[2] Security Council Res. 1244, Annex 2, para. 4 (1999).
[3] See Thomas M. Franck, The Emerging Right to Democratic
Governance, 86 AJIL 46 (1992).
[4] Security Council Res. 940 (1994). See generally
David Malone, Decision-Making in the UN Security
Council: The Case of Haiti, 1990-1997 (1998).
About the Author:
Frederic L. Kirgis is Law School Association Alumni
Professor at Washington and Lee University School
of Law. He has written a book and several articles
on United Nations law, and is a member of the Board
of Editors of the American Journal of International
Law.
The author is grateful to Professor José Alvarez
for his extremely helpful comments on drafts of this
and other Insights. Any errors are the author's own.
_________________________________________________________________________
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