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The Security Council and Iraq: An Incremental Practice

Published online by Cambridge University Press:  27 February 2017

Thomas D. Grant
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Type
Agora (Continued): Future Implications of the Iraq Conflict
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American Journal of International Law , Volume 97 , Issue 4 , October 2003 , pp. 823 - 842
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Copyright © American Society of International Law 2003

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References

* Fellow, Lauterpacht Research Centre for International Law and Senior Research Fellow, Wolfson College, Cambridge University. The author thanks Dr. Damon Wischik, Trinity College, Cambridge, for providing conceptual guidance on and executing the graphic in this essay.

1 Report of the Secretary-General Pursuant to Paragraph 24 of Security Council Resolution 1483 (2003), UN Doc. S/2003/715; see also UN Press Release SC/7821 (July 22, 2003) (containing synopsis of 479 1st meeting of Security Council);UN Press Release SC/7831–IK/372 (July 29, 2003) (containing Non–Paper on the Implementation of Paragraph 23 of Resolution 1483 (2003)); UN Press Release SC/7843 (Aug. 14, 2003) (containing synopsis of 4808th meeting of Security Council); UN Press Release SC/7850 (Aug. 20, 2003) (containing synopsis of 4811th meeting of Security Council); UN Press Release SC/7851 (Aug. 21, 2003) (containing synopsis of 4812th meeting of Security Council). UN press releases are available online at <.

2 SC Res. 1483, para. 9 (May 22, 2003), 42 ILM 1016 (2003).

3 On practice prior to commencement of operations against Iraq, see Sean D., Murphy, Contemporary Practice of the United States, 97 AJIL 419, 422 (2003)Google Scholar (detailing exhaustion of efforts by the United States, the United Kingdom, and Spain to obtain further Security Council action); id., 96 AJIL 956 (2002); Frederic L., Kirgis, Security Council Resolution 1441 on Iraq’s Final Opportunity to Comply with Disarmament Obligations, ASIL Insights, Nov. 2002, available at <Google Scholar.

4 Though, as will be seen below, until the adoption of Security Council Resolution 1511 of October 16, 2003, some question remained as to the identity of the GCI as the “interim authority” specified in Resolution 1483.

5 But see U.S. Dep’t of State, Factsheet (May 22, 2003) (no reference to ex post validation), at <. Asked whether the United States considers Resolution 1483 “a legitimization ex post of the war in Iraq,” Kim R., Holmes, assistant secretary of state for international organization affairs Google Scholar, replied:

It recognizes the specific authorities and responsibilities and obligations applicable under international law of the occupying powers.... You can interpret that in other terms, legitimacy or not. Each country will have its own view of that.

We do believe . . . that we were operating under the legal right of Resolution 1441. . . And we believe that this resolution is certainly an affirmation of, a recognition of, the fact that we are the authority inside Iraq . . .

. . . [S]ome of these theological debates that existed at the time of the debate over the second resolution they have passed, we have now gone past that, we have now had the Council come together. They have shown unity on the need to rebuild Iraqi society . . . .

Kim R., Holmes, Foreign Press Center Briefing (May 23, 2003), at <Google Scholar.

6 Resolution 1244 “ [a]uthorize[ed] Member States and relevant international organizations to establish the international security presence in Kosovo.” SC Res.1244, para. 7 (June 10, 1999), 38 ILM 1451 (1999). An annex to the resolution acknowledged a “substantial North Adantic Treaty Organization participation” in the international security presence. Id., Annex 2, para. 4; see also SC Res. 1132 (Oct. 8, 1997); SC Res. 1162 (Apr. 17, 1998) (“[c]ommend[ing]” the ECOWAS Military Observer Group (ECOMOG) for its deployment in Sierra Leone in support of restoration of peace and security).

7 E.g., SC Res. 687 (Apr. 3, 1991), 30 ILM 846 (1991); SC Res.1284 (Dec. 17, 1999), 39 ILM 760 (2000); SC Res. 1441 (Nov. 8, 2002), 42 ILM 250 (2003); w SC Res. 1483, supra note 2, para. 10.

8 SC Res. 1483, supra note 2, paras. 12–14.

9 Id., para. 16.

10 Id., para. 18.

11 IMF Country Rep. No. 03/100, at 10–12 (2003) (regarding National Fund of the Republic of Kazakhstan); IMF Country Rep. No. 03/154, at 14, 18–19 (2003) (regarding State Oil Fund of the Republic of Azerbaijan, with comparison to Kazakh fund); IMF Country Rep. No. 03/209, at 78–79 (2003) (regarding Oil Revenue Control and Surveillance Board, Chad), all available at <.

12 SC Res. 1483, supra note 2, paras. 7, 23.

13 On the problem generally and a proposal for lawmaking in response, see Ndiva, Kofele–Kale, The Right to a Corruption– Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime Under International Law, 34 Int’l Law. 139 (2000)Google Scholar.

14 SC Res. 1483, supra note 2, para. 3.

15 Though it does not address the related problem that would arise were a rival government to be constituted on the territory of Iraq itself. This problem does not to date appear to have materialized in a meaningful way. See Hamza, Hendawi, Iraqi Shiite Divisions Give U.S. a Political Challenge, Chattanooga Times Free Press, Oct. 19, 2003, at A1 Google Scholar (regarding declaration by Muqtada al-Sadr purporting to establish a government in opposition to the CPA/GCI), available in LEXIS, News Library, US File.

16 The controversy over locus of authority in Cyprus, among other complications, triggered litigation concerning the validity of phytosanitary certificates, requisite to the export of fruits and vegetables from the territory to the European Union. R v. Minister of Agriculture, Fisheries & Food, ex parte S.P. Anastasiou (Pissouri), 1994 ECR1–3087. For an earlier controversy of similar nature, see Government of the Republic of Spain v. SS Arantzazu Mendi, 1939 A.C. 236 (H.L.). See also Somalia v. Woodhouse Drake & Carey (Suisse) SA, [1993] 1 All E.R. 371 (High Ct.). A good analysis of the implications of nonrecognition in private law is found in Joe, Verhoeven, Relations intemationales de droit privé en l’absence de reconnaissance d’un État, d’un gouvemement ou d’une situation, 192 Recueil Des Cours 19 (1985 III)Google Scholar.

17 William W., Burke–White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467 (2001)Google Scholar; William W., Burke–White, A Community of Courts: Toward a System of International Criminal Law Enforcement, 28 Mich.J. Int’l L. (forthcoming 2003)Google Scholar; Laura A., Dickinson, The Promise of Hybrid Courts, 97 AJIL 295 (2003)Google Scholar.

18 SC Res. 1483, supra note 2, pmbl., paras. 8, 16.

19 Joint Statement of President George W., Bush and Prime Minister Tony Blair of the United Kingdom (Apr. 8, 2003)Google Scholar, 39 Weekly Comp. Pres. Doc. 420 (Apr. 14, 2003).

20 Though the Australian position seemed intermediate, both encouraging a UN political role and preferring to restrict it to the humanitarian dimension. Compare Marian, Wilkinson & Tom, Allard, Australia Baulks at US Plans for a Postwar Iraq , Sydney Morning Herald, Feb. 25, 2003, at 8 Google Scholar (reporting that Australia sought greater UN involvement than U.S. administration planned), available in LEXIS, News Library, Non–US File, and Australian PM Assesses Campaign to Date, Future UN Role, Radio Australia, Mar. 28, 2003 (reporting statement by John Howard that UN role should increase after hostilities), available in LEXIS, News Library, Non–US file, with Mark, Forbes, Howard Commits to Postwar Role, Age (Melbourne), Apr. 11, 2003, at 1 Google Scholar (reporting that Howard suggested that the United Nations “would not be part of the authority, but could have a role in providing humanitarian assistance”), available in LEXIS, News Library, Non–US file.

21 But note the views of Security Council member states and members of the GCI that called for target dates for the coalition’s withdrawal. The theme—acceleration of the transition process—would be taken up in the Council’s Resolution 1511. See infra text at notes 73–76.

22 See, e.g., Thomas D., Grant, A Postwar Plan, Balto. Sun, Apr. 6, 2003, at 5C Google Scholar (op–ed), available in LEXIS, News Library, US File.

23 On the United Nations as territorial administrator, see Ralph, Wilde, The Complex Role of the Legal Adviser When International Organizations Administer Territory, 95 ASIL Proc. 251 (2001)Google Scholar; Ralph, Wilde, From Danzig to East Timor and Beyond: The Role of International Territorial Administration, 95 AJIL 583 (2001)Google Scholar.

24 The sponsors of Resolution 1500 (Aug. 14, 2003) were Angola, Bulgaria, Cameroon, Chile, Guinea, Spain, the United Kingdom, and the United States. It was passed by a vote of 14–0, with Syria abstaining.

25 Frederic L., Kirgis, Security Council Resolution 1483 on the Rebuilding of Iraq, ASIL Insights, May 2003 Google Scholar, reprinted in Asil Newsletter (Am. Soc’y Int’l L., Washington D.C.), May/July 2003, at 3, available <.

26 UN Doc. S/2003/715, supra note 1.

27 On the structure and personnel of UNAMI, see id., paras. 100–04.

28 UN Press Release SC/7843, supra note 1 (statement of Adolfo Aguilar Zinser to the Security Council).

29 UN Doc. S/PRST/2003/13.

30 SC Res. 1502, pmbl. (Aug. 26, 2003); see also SC Res. 1511, para. 18 (Oct. 16, 2003) (“[unequivocally corulemn[ing]” terrorist attacks against multiple targets from August 7 through October 14, including the assassination of Dr. Akila al–Hashimi of the GCI).

31 UN Press Release SC/7851, supra note 1 (for example, statements of Cameroon, Chile, Germany, Guinea, Pakistan, and Syria).

32 UN News Service, Iraq: UN–Organized Donor Conference to be Held in Madrid on 24 October (Aug. 22, 2003), at <Google Scholar.

33 UN Doc. S/2003/715, supra note 1.

34 See statements to the Security Council by Zhang Yishan (for China), viewing Resolution 1483 as a “good foundation” for a UN role in the political process; and Jean–Marc de la Sablière (for France), viewing Resolution 1483 as encouraging an “ambitious approach” by the United Nations, UN Press Release SO/7821, supra note 1.

35 UN Doc. S/2003/715, supra note 1, para. 9.

36 UN Press Release SC/7821, supra note 1.

37 Id.

38 UN Press Release SC/7843, supra note 1.

39 Id.

40 Id.

41 Id.

42 UN Press Release SC/7821, supra note 1.

43 John D., Negroponte, UNSC Resolution 1483 to Lift Sanctions on Iraq (May 22, 2003), at <Google Scholar (U.S. representative’s explanation of vote in Security Council).

44 UN Press Release SC/7821, supra note 1.

45 See id. (query of Martin Belinga-Eboulou (for Cameroon)).

46 Consider the July 22 statements of Gunter Pleuger (for Germany) and Munir Akram (for Pakistan) in id.

47 UN Press Release SC/7843, supra note 1.

48 UN Press Release SC/7821, supra note 1.

49 SC Res. 1500, supra note 24, para. 1.

50 The secretary-general himself, before the adoption of Resolution 1500, had already welcomed the establishment of the GCI by the CPA on July 13. UN Doc. S/2003/715, supra note 1, paras. 24, 107.

51 SC Res. 1500, supra note 24, para. 1.

52 UN Press Release SC/7843, supra note 1. Note that the expression “occupying Powers” itself is not without controversy. The United States earlier struggled against the characterization, however obvious it may have seemed, that the coalition is an “occupying power.” 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, UN Doc. S/2003/538 (coalition powers not using term “occupying power” in connection with their presence in Iraq); Jordan J., Paust, The U.S. as Occupying Power over Portions of Iraq and Relevant Responsibilities Under International Law, ASIL Insights, Apr. 2003 Google Scholar; John, Zarocostas, U. S. Rebuts Annan’s Criticisms on Iraq, UPI, Apr. 24, 2003 Google Scholar, available in LEXIS, News Library, US File. The International Court of Justice (ICJ), in the Namibia case, might have elaborated the criteria of military occupation but, in the circumstances, did not. Judge Ammoun in a separate opinion touched on the matter in passing, in connection with defining the nature of the South African presence in the mandated territory. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 89 (June 21) (Ammoun,J., sep.op.).See generally Eyal, Benvenisti, The International Law of Occupation (1993)Google Scholar; Ernst, Fraenkel, Military Occupation and the Rule of Law (1944)Google Scholar; Christopher, Greenwood, The Administration of Occupied Territory in International Law, in International Law and the Administration of Occupied Territories 241 (Emma Play faired., 1992)Google Scholar; Alain, Pellet, The Destruction of Troy Will Not Take Place, in id. at 169 Google Scholar.

53 UN Doc. S/2003/715, supra note 1, para. 10 (“Most regional leaders believed that the swift establishment of the Iraqi interim administration would be a step in the right direction.”).

54 Id., para. 24.

55 Statements of Russia and Guinea, UN Press Release SC/7821, supra note 1.

56 SC Res. 1511, supra note 30, para. 4.

57 In the Rights of Nationals case, the ICJ stated, “It is not disputed by the French Government that Morocco, even under the Protectorate, has retained its personality as a State in international law.” Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Merits, 1952 ICJ Rep. 176, 185 (Aug. 27). The ICJ explained that “Morocco remained a sovereign State but it made an arrangement of a contractual character whereby France undertook to exercise certain sovereign powers in the name and on behalf of Morocco.” Id. at 188. Sovereignty, the Court found, continues even when a state is not fully exercising all its incidents. See also Lighthouses in Crete and Samos, 1937 PCIJ (ser.A/B) No. 71, at 103; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595, 746–47, para. 82 (July 11) (Kreca, J. ad hoc, dissenting):

In principle, there are situations in which State organs do in fact cease from exercising power (e.g., cases of military occupation, civil war and, to a certain extent, various forms of constitutional crises), but do not cease to exist. State organs as elements of State organization cease to exist when the State on whose behalf they are acting ceases to exist.

58 UN Press Release SC/7821, supra note 1. Ahmad Chalabi, founder of the Iraqi National Congress and member of the GCI, also used the expression “restoration of Iraqi sovereignty.” Ahmad, Chalabi, The View from Iraq, Wash. Post, Aug. 31, 2003, at B7 Google Scholar.

59 UN Press Release SC/7821, supra note 1.

60 Id.

61 UN Press Release SC/7843, supra note 1.

62 UN News Service, UN Envoy Sees Rapprochement Between Iraqi Council and Arab League (Aug. 13, 2003), at <Google Scholar.

63 See Hans, Kelsen, Recognition in International Law: Theoretical Observations, 35 AJIL 605, 613 (1941)Google Scholar (“From a juristic point of view, the distinction between de jure and de facto recognition has no importance.”); Ian, Brownlie, Recognition in Theory and Practice, in The Structure and Process of International Law 627, 636 (Ronald St J., Macdonald & Douglas M., Johnston eds., 1983)Google Scholar (“[T]he standard works, in giving prominence to the ‘de jure’/‘de facto’ usage are not only committing atrocities of analysis, but are three decades out of date as a matter of the ordinary description of state practice.”) The complexities of a sprawling and inconsistent practice, as well as a prolix and, in aggregate, unenlightening secondary literature, are well reviewed in Stefan Talmon, Recognition of Governments In International Law: With Particular Reference To Governments In Exile 44–111 (1998).

64 The United Nations in the past has certainly exercised influence on policies of nonrecognition in controversial situations. John, Dugard, Recognition and the United Nations 3 (1987)Google Scholar (noting examples of Katanga, (Southern) Rhodesia, Transkei, Bophuthatswana, Venda, Ciskei, and the Turkish Republic of Northern Cyprus; and the claims of South Africa (pre–1991) regarding Namibia and of Israel regarding East Jerusalem and the Golan Heights); see also East, Timor (Port. v. Austl.), 1995 ICJ Rep. 90, 103–05 (June 30)Google Scholar (addressing, with reference to Security Council and General Assembly practice, implied recognition of Indonesian claims to East Timor).

65 UN Doc. S/2003/715, supra note 1, para. 98(j); see also id., paras. 10, 108 (concerning the “regional dimension,” including the contacts initiated by the secretary–general and his special representative with Arab governments at Amman, Jordan, June 21–23, 2003).

66 Briefing to the UN Security Council by Mr. Sergio Vieira, de Mello, Special Representative of the Secretary–General for Iraq (July 22, 2003)Google Scholar, UNIC/Press Release/123–2003, available at < (“In turn, I urged all Iraq’s neighbours to play their supportive role to the full, to embrace the Governing Council and provide it with whatever assistance it may request.”).

67 The resolution was sponsored by Cameroon, Spain, the United Kingdom, and the United States.

68 SC Res. 1511, supra note 30, para. 2.

69 Id., para. 1 (second emphasis added).

70 Id., para. 8.

71 Permanent Representative Akram of Pakistan stated after the adoption of Resolution 1511 that the multinational force should have had a “distinct identity” from the occupying forces and that its lack of a “distinct identity” meant that Pakistan would not contribute troops. UN News Service, Members Hail Security Council Unanimity on Iraqi Resolution, Comment on Text (Oct. 16, 2003), at <.

72 Representatives of various Security Council member states indicated that progress toward reconstruction and democracy in Iraq required international unity and that this imperative, as much as or more than agreement on the substantive terms of the resolution, had led to its unanimous adoption. See, for example, the statements of Sergey Lavrov (Russian Federation), Gunter Pleuger (Germany) , Jean-Marc de la Sablière, and Wang Guangya (People’s Republic of China). The representatives of the United States, the United Kingdom, and Spain emphasized the value of the resolution as a unanimous statement. Id.

73 SC Res. 1511, supra note 30, pmbl. (second emphasis added).

74 Id., para. 1 (second emphasis added).

75 Id., pmbl. (second emphasis added).

76 Id., para. 7.

77 Robert McCorquodale rightly notes the reporting requirement as definitional with respect to non–self–governing territories: “The term ‘non–self–governing territories’ . . . . refers to those territories on the United Nations’ list of non–self–governing territories for which States must make regular reports under Article 73 (e) “ Robert, McCorquodale, Negotiating Sovereignty: The Practice of the United Kingdom in Regard to the Right of Self-Determination, 1995 Brit. Y.B. Int’l L. 283, 290–91 Google Scholar. This statement might at first blush appear circular, but it fairly captures an irreducible component of decolonization under Chapter XI: accountability at the international level for territories under colonial administration—or, expressed just as instructively in the negative, estoppel from claiming the matter to be one of municipal governance immune from international competence in consequence of “sovereign” supremacy.

78 The matter of the substance of transmissions was controversial in early sessions of the ad hoc committee on the transmission of information under Article 73(e). The USSR proposed that the agenda of the ad hoc committee be amended to include “information . . . on participation of the local populations in local organs of government,” which administering powers stated might be acceptable as a voluntary matter only. A further Soviet proposal for a right of petition by the peoples of non–self–governing territories was rejected by the committee by a vote of 11–3, with 2 abstentions. Information Transmitted Under Article 73(e) of the Charter: Report of the Ad Hoc Committee, UN Doc. A/385, at 3 (1947).

79 Article 88 provides:

The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire.

80 GA Res. 1541 (XV), annex, princ. II (Dec. 15, 1960).

81 Id., princ. VI.

82 For a recent reprise of earlier proposals, see Suzanne, Nossel, A Trustee for Crippled States, Wash. Post, Aug. 25, 2003, at A17 Google Scholar. For a summary of earlier proposals and replies of interested states, see Review of the Role of the Trusteeship Council: Report of the Secretary–General, UN Doc. A/50/1011 (1996). Not least of the hurdles to renewing the Trusteeship Council’s mission is Charter Article 78, which provides that the “trusteeship system shall not apply to territories which have become Members of the United Nations.”

83 One distinction is that Iraq, unlike any of the territories proceeding to independence under Chapters XI, XII, and XIII, has already traveled through an international process to independence—as a mandate under British “tutelage” (1919–1932), only loosely supervised by the League of Nations and much resented in Iraq.

84 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), para. 5 (Dec. 14, 1960), provides:

Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

See also GA Res. 1542 (XV), para. 2 (Dec. 15, 1960) (declaring that an obligation under Article 73(e) exists with respect to the overseas territories of Portugal and that “it should be discharged without further delay”); GA Res. 1535 (XV), para. 3 (Dec. 15, 1960) (“increased tempo of change”). The emphasis on speed was not temporary. It recurred in connection with further specific colonial territories. See, e.g., GA Res. 35/20, pmbl., para. 1 (Nov. 11, 1980) (on Belize). In the context of General Assembly decolonization practice generally, see GA Res. 43/47 (Nov. 22, 1988) (identifying the start of the twenty–first century as the deadline for ending colonialism); GA Res. 47/23 (Nov. 25, 1992) (on the need to eliminate colonialism by 2000 and to enable the peoples concerned to exercise their right to self–determination as soon as possible); GA Res. 48/52 (Dec. 10, 1993) (repeating language of GA Res. 47/23).

85 See James, Crawford, The Creation of States in International Law 363–64, 337–55 (1979)Google Scholar (discussing, respectively, Right of Passage over Indian Territory (Port. v. India), Merits, 1960 ICJ Rep. 6 (Apr. 12), and sovereignty in context of revocation and termination of mandates and trusteeships).

86 UN Press Release SC/7821, supra note 1. Sir Jeremy Greenstock (for the United Kingdom) similarly characterized the GCI as a “representative partner with which the international community could engage.” Id.