According to United Nations Security
Council Resolution 1511, the Coalition Provisional
Authority (CPA), the recognized occupying power
in Iraq,
[1] will dissolve on June 30, and an interim
Iraqi government will begin to exercise Iraqi
sovereignty. [2] The United States, however, has repeatedly
stated that its troops will remain in Iraq after
the handover, pursuant to an expected request
by the Iraqi government. Given the questions
surrounding the legitimacy of any Iraqi government,
what would be the legal status of such a request?
Intervention by invitation [3] essentially involves the consent
by an inviting state to justify action that
would, absent such consent, violate the U.N.
Charter's prohibition on the use of force.
[4] Only where the inviting government
is recognized as embodying the sovereign rights
of the state will an invitation therefrom provide
a legal basis, in and of itself, for military
action according to the terms of the invitation.
On June 30, the sovereignty exercised
by the interim Iraqi government will not be
complete in the Westphalian sense, [5] since the government will not, at the time
of its creation, effectively control the territory
of Iraq. In the era prior to the adoption of
the U.N. Charter, the degree of territorial
control would have determined the legality of
any invitation issuing from a government. This
determination, made by what were called the
"standards of belligerency," was a corollary
to the "effective control test," by which governmental
recognition depends on territorial control.
By operation of these standards, a government
that controlled the vast majority of its territory,
though fighting a rebellion, could legally invite
outside intervention, while one that faced an
established insurrection could not. Instead,
a "revolutionary government which [wielded]
effective power, with a reasonable prospect
of permanency, over the whole-or practically
the whole-territory of the State [was] entitled
to recognition." [6]
Since the adoption of the Charter,
however, in situations involving civil wars-where
governmental legitimacy is most challenged-the
government representing the state at the United
Nations has been deemed to possess sufficient
external legitimacy to legally invite foreign
military intervention. This construction may
be inferred from the judgment of the International
Court of Justice in its well-known Military
and Paramilitary Activities case, where
the Court distinguished between permissible
intervention at the request of the U.N.-recognized
government and impermissible intervention at
the request of the opposition in a situation
of struggle for control of the country.
[7] Perhaps recognizing this, Security
Council Resolution 1511 referred to the exercise
of Iraq's sovereignty, determining that the
Iraqi Governing Council "embodies the sovereignty
of the State of Iraq during the transitional
period until an internationally recognized,
representative government is established and
assumes the responsibilities of the [Coalition
Provisional] Authority." Now that the Iraqi
Governing Council has itself dissolved, there
is a gap in bodies capable of exercising Iraqi
sovereignty.
The Security Council is currently
considering a new resolution on the authority
of the interim Iraqi government that will begin
to function on June 30. If the resolution explicitly
decides that the interim Iraqi government exercises
the sovereignty of the state of Iraq, it would
authoritatively impart external legitimacy upon
that government.
[8] Under Article 25 of the Charter, members
of the U.N. are required to accept and implement
all decisions (as distinguished from recommendations)
of the Security Council; accordingly, a state
refusing to recognize the Iraqi government would
be in violation of its Charter obligations.
Since the interim Iraqi government would be
recognized as a matter of law, the legality
of its invitation to the United States would
be established as well. Additionally, should
such government request the departure of foreign
troops, noncompliance by the United States would
(unless authorized by the Security Council)
constitute an illegal use of force, since it
would contravene the request of the recognized
government of Iraq.
[9]
If the Security Council, acting
under Chapter VII of the Charter, authorizes
the continued presence of foreign forces in
Iraq, an objection by the interim Iraqi government
to their continued presence would be insufficient
to defeat the legality of such authorization.
Indeed, measures involving the use of force,
which the Council can authorize under Chapter
VII, are needed precisely in those instances
where a government refuses to voluntarily abide
by decisions of the Security Council. It remains
to be seen whether Chapter VII will be the
preferred means of legal authorization for the
continued military presence of the United States
and its allies after June 30. It would not
provide as sharp a contrast with the military
occupation before June 30 as would an invitation
by the interim Iraqi government. A Chapter
VII operation, however, could immunize U.S.
and other foreign personnel from the jurisdiction
of the International Criminal Court, if the
Security Council renews its annual requests
that the ICC refrain from investigating or prosecuting
individuals for acts or omissions relating to
an operation established or authorized by the
United Nations.
[10]
About the Author: Christopher J. Le Mon will be joining the
law firm of Shearman & Sterling LLP this
autumn. Most recently, he served as law clerk
to Judges Thomas Buergenthal & Vladlen S.
Vereshchetin, International Court of Justice,
from 2003-04.
[3] I have explored the question of unilateral intervention
by invitation in civil wars at length elsewhere.
See Christopher J. Le Mon, Unilateral
Intervention by Invitation in Civil Wars:
The Effective Control Test Tested, 35
N.Y.U.J. Int'l L. & Pol. 741 (2003).
As civil wars share an important characteristic
with the situation in Iraq following the occupation
by the United States and its allies-namely,
contested sovereignty-an examination of the
law surrounding the former proves useful for
analyzing the latter.
[4] See U.N. Charter at art. 2(4) ("All Members
shall refrain in their international relations
from the threat or use of force against the
territorial integrity or political independence
of any state, or in any other manner inconsistent
with the Purposes of the United Nations").
[5] See Stephen D. Krasner, Problematic
Sovereignty, in Problematic Sovereignty:
Contested Rules and Political Possibilities
1, 11 (Stephen D. Krasner ed., 2000) (distinguishing
various types of sovereignty).
[6] See Sir Hersch Lauterpacht, Recognition
in International Law 98 (1947).
[7] See Military and Paramilitary Activities (Nicar.
v. U.S.), 1986 I.C.J. 14, at ¶ 246 (Jun.
27) ("it is difficult to see what would remain
of the principle of non-intervention if in
international law if intervention, which is
already allowable at the request of the government
of a State, were also to be allowed at the
request of the opposition").
[8] The International Court of Justice has stated
that the binding nature of Security Council
resolutions attaches not simply to those passed
under Chapter VII of the Charter, but to all
resolutions which the Council intended to
have binding effect. See Legal Consequences
for States of the Continued Presence of South
Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolution 276, Advisory
Opinion, 1971 I.C.J. 16, 52-53 (Jun. 21).
[9] This was explicitly stated in the General Assembly's
definition of aggression, which, in interpreting
the Charter's prohibition on the use of force,
considered as constituting aggression "[t]he
use of armed forces.which are within the territory
of another State with the agreement of the
receiving State, in contravention of the conditions
provided for in the agreement." G.A. Res.
3314(XXIX), art. 3(e), U.N. Doc. A/9631 (1974).
[10] See, e.g., S.C. Res. 1487, U.N. Doc.
S/RES/1487 (2003). See also Rome
Statute of the International Criminal Court,
art. 16; Mayur Patel, ASIL Insight: The Legal
Status of Coalition Forces in Iraq After the
June 30 Handover (March 2004).
Addendum
By Christopher J. Le Mon
June 2004
On June 28, 2004, the United States
announced that it had formally transferred sovereignty
over Iraq to the Interim Iraqi Government.
This followed the Security Council's unanimous
passage, on June 8, of Resolution 1546, which
noted that after the assumption of power by
the Interim Iraqi Government , "Iraq will reassert
its full sovereignty."
Resolution 1546, adopted under
Chapter VII of the Charter, reaffirmed the authorization
of the U.S.-led multinational force in Iraq
(the force was originally authorized in Security
Council Resolution 1511). In doing so, the
Council expressly noted that "the presence of
the multinational force in Iraq is at the request
of the incoming Interim Government of Iraq."
But this request does not seem to be the legal
basis for the continued presence of U.S.-led
forces in Iraq. As noted in the main body of
this Insight, an invitation for intervention,
if issued by a government recognized as embodying
the sovereignty of that state, can provide a
sufficient legal basis for military intervention
pursuant to that invitation. But the Interim
Government, at the time its request was made,
had not yet taken office and, by the terms of
Resolution 1546 itself, thus did not yet embody
Iraqi sovereignty. Its request, therefore,
fell below the traditional threshold required
for an invited intervention to be legally well-founded.
Indeed, had the Iraqi request alone constituted
a sufficient legal basis for the continued presence
of the U.S.-led multinational force in Iraq,
there would seemingly have been no need for
the Security Council to reaffirm its Chapter
VII authorization of that force.
The complexity of the legal situation
is apparent in paragraph 12 of the resolution,
which states that the mandate of the multinational
force in Iraq will expire at the end of the
Iraqi political transition, currently envisaged
to occur at the end of 2005. However, the Security
Council also "declares that it will terminate
this mandate earlier if requested by the Government
of Iraq." Should the Iraqi government make
such a request, and given the Chapter VII authorization
of the multinational force, the Council would
likely have to adopt another resolution in order
to terminate the force's mandate. Such a resolution
would be subject to the veto by any of the five
permanent members of the Security Council, including
the United States. [1a] In such a situation, the Iraqi request would be withdrawn,
but the Chapter VII authorization would remain
(despite the Council's declared intent to terminate
it at the request of the Iraqi government).
Should such a chain of events come to pass,
the legal status of the multinational force
in Iraq would be quite murky indeed.
[1a] It is arguable that a permanent member choosing
to veto such a resolution would be in violation
of its obligations under Article 25 of the
Charter, since in Resolution 1546 the Security
Council specifically declared that it would
terminate the mandate if so requested by the
Iraqi government and, because the resolution
was adopted under Chapter VII, its terms are
binding upon all U.N. Member States. On this
question, statements by members of the Council
following the passage of Resolution 1546 offer
little insight. The representative of the
United States stated that the "Government
of Iraq will have the final say on the presence
of multinational forces," while the French
representative similarly asserted that "the
sovereign [Iraqi] Government may at any time
ask that the mandate of the international
force be revised or that it end, and such
a request will be binding on the Security
Council." U.N. SCOR, 59th Sess., 4987th mtg.
at 2, 7, U.N. Doc. S/PV.4987 (2004). While
these declarations reinforce the notion that
the Council would have no discretion in the
event of an Iraqi request for termination
of the mandate, they do not speak to the thornier
practical question of the consequences of
a veto of a future resolution attempting such
termination.
_________________________________________________________________________
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