Security Council Resolution 1483 on the Rebuilding of Iraq

Frederic L. Kirgis
June 06, 2003
            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).
[5] General Assembly Res. 46/137, para. 2 (1991).
[6] For a summary of the content of these obligations, see ASIL Insight, The U.S. as Occupying Power Over Portions of Iraq and Relevant Responsibilities Under the Laws of War (April 2003).
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. 
Iraq: How to Reconcile Conflicting Obligations of Occupation and Reform
Thomas D. Grant
June 2003
When L. Paul Bremer III, the lead U.S. administrator for the transition in Iraq, told a Washington Post reporter late last month "Occupation is an ugly word, not one Americans feel comfortable with, but it's a fact," [1] he stated the obvious: forces of the United States and its coalition allies stand in effective control of post-Saddam Iraq (or much of it). However, Mr. Bremer's statement raises a legal question without an obvious answer: how can restrictive language in the Fourth Geneva Convention and its implicit assumption that any occupation should be purely temporary and not for imposing a particular form of government be reconciled with obligations to rebuild and reform Iraq?
The 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War provides that an Occupying Power (capitals provided in the Convention) may not "alter the status of public officials or judges in the occupied territories . . . should they abstain from fulfilling their functions for reasons of conscience" (art. 54). It also requires the Occupying Power to leave the penal laws of the occupied country unchanged, subject to narrow exceptions (art. 64). The earlier Hague Regulations concerning the Law and Customs of War on Land also restrict the occupant from changing local law. Both treaties are expressly invoked in paragraph 5 of Security Council resolution 1483 of May 22, 2003.
But the resolution plainly conceives the coalition effecting on Iraqi politics, law, and institutions an overhaul, the scope of which will be nothing short of radical. In conjunction with the UN and an Iraqi interim administration, the coalition is called on to create "conditions in which the Iraqi people can freely determine their own political future" (resolution para. 4); "establish national and local institutions for representative governance;" and "encourag[e] international efforts to promote legal and judicial reform" (para. 8). Scarcely any of the political, legal, or institutional infrastructure for this existed under the Ba'ath dictatorship, so it is not immediately clear how the coalition will both fulfill the task of reform identified in Res. 1483 and abide by the 'no change' rule implied in the treaties.
One argument that might be made to avoid conflict is that the coalition powers do not constitute 'occupying powers' for purposes of the Convention. This, however, would have to account for language in the preamble to Res. 1483. The preamble-though the preamble only-refers to the coalition powers in Iraq as 'occupying powers,' 'recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers.' The British and American Permanent Representatives, in a letter delivered to the President of the Security Council on May 8, do not use the term 'occupying power' at all. [2] It is far from clear that absence of the term is meant to characterize the coalition presence one way or the other. Substantive paragraphs 4 and 5 of Res. 1483 refer to obligations under international law-including, expressly, the Geneva Conventions and Hague Regulations which contain important provisions relevant to occupation-but any conclusion to be drawn from paragraphs 4 and 5 as to the status of the coalition Authority has to be drawn by inference; the paragraphs do not contain the term 'occupying power.' Inclusion of the term 'occupying power' in the substantive paragraphs of Res. 1483 would have clarified the situation. One may speculate whether its absence reflects a compromise at the drafting stage.
It may be wondered, too, whether the status 'occupying power' is relevant, where no alternative locus of authority exists. The Hague Regulations and the Fourth Geneva Convention, in references to the 'legitimate' authority and its on-going rights, might be seen to address situations where one military force continues in opposition against another-that is, situations where a force has lost effective control over territory but remains, to some degree, a viable entity, either continuing organized resistance from the unoccupied parts of its territory or establishing an exile presence with which to continue prosecuting, if only legally, a claim, broadly recognized, that its state holds de jure the rights of governance. The treaty obligations attach to the other force, which stands in occupation and must exercise certain incidents of local administration. The coalition in Iraq presents a case distinct from certain past cases of occupation, in the sense that, though the Iraqi state continues to hold all rights to its territory, there remains now no governmental organ that can exercise those rights-apart from the coalition itself. Yet the case of occupied Germany, much in the minds of the drafters of the Geneva Conventions in 1949, very much resembled that of Iraq, in the sense that, there too, no viable alternative locus of authority existed. The view will gain adherents that the coalition does constitute an Occupying Power and thus faces the restrictions inherent in that status. It is already the view prevalent amongst publicists, [3] and amongst governments and international organizations may become so as well. [4]
The 'Coalition Provisional Authority' (as the May 8 letter titles it) or the 'Authority' (as Res. 1483 titles it) therefore will be challenged to fulfill obligations incumbent upon and respect limits inhering in the status of an occupying power.
A number of approaches present themselves. For one, the Authority may note that the restrictive language of the Fourth Geneva Convention is tempered by reservations permitting certain changes pursuant to good governance during occupation. For example, judges-whom the Convention permits to resign for reasons of conscience-may be replaced by the Occupying Power in the interests of maintaining the functions of the judiciary. The Occupying Power may take other legal and administrative measures to protect its own personnel, the Convention making allowance for such measures in light of the dangers an occupant well may face.
Yet the reservations to the restrictive language were tailored narrowly, and they were not intended in the nature of a license. Pictet noted in particular that the Occupying Power may not change the laws of the occupied territory 'simply to bring them into accord with its own juridical conceptions.' [5] This approaches the heart of the matter: Occupation was conceived as a temporary status, and effects it might have on a territory transitory. The specific provisions of the Fourth Convention restrict change by an Occupying Power, while leaving some margin for measures necessitated by circumstance. A purpose implied at root beneath the Fourth Convention, however, seems to have been to prevent an occupant from imposing its will through permanent constitutional change. In this, the reform mission expressed in Res. 1483 remains in tension with the treaty obligations of the Occupying Powers, even as they avail themselves of the reservations to the restrictive language of the Convention.
An alternative approach may be to bring Iraqi political organs rapidly into play as supervening instances over the Authority. Changes in governance in Iraq then might be characterized as the decisions of the interim administration-an organ defined in Res. 1483 as constituted by Iraqis and thus, perhaps, not under the limits facing an occupying power. But the Authority is itself bid in the reform process to act, suggesting that the responsibilities of the process are not meant to be discharged by the interim administration acting alone. Moreover, the interim administration itself seems to be conceived in the resolution as a creature of the Authority.
The better view may be that Res. 1483 has created a 'carve out' from the Hague Regulations and Fourth Geneva Convention, leaving other provisions of the treaties in force, but suspending with respect to the Authority those provisions that otherwise would curb its license to change the laws, institutions, and personnel of the occupied state. This would reconcile the conflict noted above, without draining paragraph 5 of Res. 1483 of content.
It does not seem too remarkable a proposition, that a resolution of the Security Council could carve out such provisions. The Security Council has sweeping dispositive authority, as evidenced by its resolutions establishing a legal basis for such ambitious programs as the independence of East Timor or administration of Kosovo, not to mention power to create upon the member states obligations, which, owing to Article 103 of the Charter, enjoy primacy over treaty obligations, where the two conflict. If it has used the authority wisely, the Council will be seen to have carved from the treaties an exemption just broad enough to permit an Occupying Power to execute in Iraq the mission the Council itself has defined. 
About the Author:  
Thomas D. Grant is a public international lawyer and fellow of Wolfson College and the Lauterpacht Research Centre for International Law, Cambridge University.
[1] 'Adjusting to Iraq,' Sunday, June 1, 2003, p. B06.
[2] Note citation by PBS to the May 8 letter as 'the first time the United States has referred to its role in Iraq as an 'occupying power."' (visited Saturday, June 07, 2003). The text of letter in fact does not contain the expression 'occupying power.' See S/2003/538. Letter dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council.
[3] See, e.g., Jordan J. Paust, 'The U.S. as Occupying Power Over Portions of Iraq and Relevant  Responsibilities under International Law,' ASIL Insights, April 2003.
[4] The UN Secretary-General took the view on April 24, 2003. Reported in Jonathan Fowler, 'US Bridles as UN's Kofi Annan Calls It "Occupying Power"', Associated Press, April 24, 2003.
[5] Jean S. Pictet, Commentaire: IV La Convention de Genève relative a la protection des personnes civiles en temps de guerre (Comité International de la Croix-Rouge, 1956), p. 360. Exceptions to the requirement to leave local laws intact were also incorporated into the Hague Regulations of 1907, but, those, too, in the view of contemporary publicists, were to be applied narrowly. See Thomas Erskine Holland, The Laws of War on Land (Oxford: Clarendon Press, 1907), p. 53.