IRAQ: The Sovereignty Issue

February 2, 2005

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Current political and economic issues succinctly explained.

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How much authority can Iraq’s interim government exercise?

President Bush said May 24 that the interim Iraqi government taking over for U.S-led occupying authorities on June 30 will be a “government of Iraqi citizens” with “full sovereignty.” It will, he said, run the day-to-day affairs of Iraq’s 26 ministries, prepare the country for national elections by January 2005, and help U.S. forces create Iraqi security services that will eventually take responsibility from foreign troops. But whether that amounts to “full sovereignty” is open to question. “We are essentially ceding legal authority to an interim government to be named with limited competency and questionable legitimacy,” says Lee Feinstein, senior fellow in U.S. foreign policy and international law at the Council on Foreign Relations.

What is “sovereignty”?

There is no single legal definition. It is usually defined in political terms, says Jose E. Alvarez, professor of international law at Columbia University. Black’s Law Dictionary defines sovereignty as “the supreme, absolute, and uncontrollable power by which any independent state is governed.” The definition adds that it is “the power to do everything in a state without accountability, to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.” The modern concept of sovereignty includes three basic components: international political sovereignty, legal sovereignty, and de facto sovereignty, says Noah Feldman, a law professor at New York University and a former adviser to the Coalition Provisional Authority in Iraq.

Which of these aspects of sovereignty will the interim government have?

Based on Bush’s speech and a U.S.-British draft U.N. Security Council resolution submitted May 24, it appears Iraq will have the first two components of sovereignty but not the third, some experts say. The interim government will be able to enter into relationships with other nations and receive foreign ambassadors in Baghdad. It will also be officially recognized as the legal government of the Iraqis. But the de facto sovereignty of the new government will be severely curtailed by the continuing presence of 138,000 U.S. forces in Iraq and the inability of the new Iraqi government to defend itself against armed challenges. In addition, it appears that the government can’t make laws or long-term international agreements before January 2005, when a national election for a transitional assembly is scheduled. U.S. officials have said the interim government won’t have these powers, and the U.N. resolution and President Bush’s May 24 speech were silent on the issue. “We are creating a situation in which the legal authority is in one place and the power is elsewhere,” Feinstein says.

What is President Bush’s plan for Iraq?

In his May 24 speech, President Bush outlined a five-step plan for the Iraqi transition to self-government. The speech contained no new details, but it summarized planning that has been under way since April by Bush administration officials and U.N. Special Envoy to Iraq, Lakhdar Brahimi. The five steps are:

  • Hand over authority to a sovereign Iraqi government chosen by the United Nations on June 30. Create a national council of Iraqis that is representative of the country’s religious and ethnic diversity. The council would have only advisory powers.
  • Help establish stability and security. No date was given for the transfer of security responsibilities to the Iraqis or for the pullout of U.S. troops.
  • Continue rebuilding Iraq’s infrastructure. The United States has already committed some $18.4 billion to Iraqi reconstruction and will continue to control these funds after June 30. Control of Iraqi oil revenues will pass to the interim government, but spending will be monitored by a U.N.-established international board.
  • Encourage more international support through a new U.N. Security Council resolution and other initiatives.
  • Move toward free, national elections. The first election—for a 275-member Transitional Assembly—is scheduled to take place by January 2005. After that, the Iraqi people will write a new constitution. A vote for a permanent government is scheduled to take place by December 2005.

How will the United Nations select members of the new government?

Via a process of consultation. Brahimi has met with political figures, civic leaders, religious authorities, members of the Iraqi Governing Council (IGC), and other Iraqis, and is compiling a list of candidates. He has also conferred with L. Paul Bremer III, the head of the Coalition Provisional Authority (CPA), and Robert D. Blackwill, an aide to National Security Adviser Condoleezza Rice. Brahimi is expected to consult U.N. Security Council members, Arab leaders, and others before disclosing his choices in order to ensure that they are widely acceptable. Brahimi is expected to name the government in the last week of May or early June.

How many Iraqis is Brahimi choosing?

Thirty—a president, two vice presidents, a prime minister, and 26 ministers. A key job for these officials will be preparing for the January 2005 elections. After that vote, the elected government will begin drafting a new constitution.

Will most Iraqis have a say in the choice?

No. As a result, some observers worry that the appointed government will command little public respect. U.S. and U.N. officials agree that true legitimacy won’t be achieved until Iraq has an elected government. “The key thing, I think, is going to be not when they have a sovereign appointed government, but when they have a sovereign elected government,” Deputy Secretary of Defense Paul Wolfowitz told Congress May 18. “The administration is hoping that this interim government buys time for two elections, one in the United States and one in Iraq,” Feinstein says.

How is power distributed among the top four posts?

President Bush said the prime minister will be the chief executive and the president will be the head of state—a largely ceremonial position. Iraq’s population is approximately 20 percent Arab Sunni, 20 percent Kurdish, and 60 percent Shiite. As a result, a Shiite is expected to serve as prime minister, and the other three posts will be divided among the three groups.

Will the leaders be technocrats or politicians?

Brahimi initially suggested that members of the caretaker government ought to be nonpartisan technocrats rather than political figures who could use government posts to position themselves for next year’s elections. But Iraqi politicians and U.S. officials balked; it now appears politicians will serve in the interim administration. “We think there’s probably a place for some politicians and people who are not necessarily technocrats. “They have a stake in Iraqi society,” said Marc Grossman, the undersecretary of state for political affairs, in congressional testimony May 13. Grossman said Bremer and Blackwill are in close contact with Brahimi to “make sure he understands our views on this issue.”

Which politicians are under consideration?

One name often mentioned for president is Adnan Pachachi, 80, a Sunni who served as foreign minister before the Baath Party came to power in 1968. Names floated for the vice president posts include Kurdish leader Jalal Talabani, the head of the Patriotic Union of Kurdistan, and Shiite leader Ibrahim Jafari, a medical doctor and leader of the Islamist Da’wa Party. Da’wa is a Shiite movement active in Iraq since the 1960s that sought Saddam Hussein’s overthrow and was brutally rooted out by his regime. Brahimi is reportedly considering a wide range of candidates for the powerful prime ministerial slot.

What will the U.S. role be after June 30?

The United States will still have a major presence in Iraq. U.S. officials are finalizing plans for a massive American embassy of some 1,000 Americans. It will be located in the heavily fortified “Green Zone”—where the CPA is located—in the center of Baghdad. Some 200 Americans and other foreign nationals will continue to work in Iraqi ministries as advisers, Ambassador Francis J. Ricciardone, the State Department’s coordinator for the Iraq transition, said May 19. Some 135,000 U.S. soldiers will remain to provide security and continue fighting foreign terrorists and local insurgents. Additional U.S. forces may be added if the violence in Iraq intensifies, said General John P. Abizaid, commander of American forces in the Middle East, in congressional testimony May 19. “This is not going to be a light American footprint,” says Marina Ottaway, a senior associate at the Carnegie Endowment for International Peace.

Is violence in Iraq likely to increase after June 30?

It’s unclear, but some U.S. military officials are predicting that it will. General Abizaid said May 19 he thought “the situation will become more violent” after the June 30 handover “because it will remain unclear what’s going to happen” between then and the end of the year. President Bush also said the violence could increase.

When will the Iraqi security forces be ready to secure the country?

Abizaid said it might take until April 2005 before U.S.-trained Iraqi security forces are fully functioning. There are currently some 200,000 Iraqis working with the U.S.-led coalition on security matters, but the majority has not been trained. “We are not going to hand off security on 1 July writ large across the country to the Iraqi security forces,” Lieutenant General Walter Sharp, director of strategic plans and policy for the Joint Chiefs of Staff, told Congress May 18. By July 1, he said, “we’ll have approximately 10 percent of the total required Iraqi police academy-trained, and another 20 percent trained by the shorter three-week program that our military does throughout the country.” President Bush, in his speech, did not give a specific date.

What limits will exist on Iraqi authority after June 30?

The draft U.N. resolution “endorses the formation of a sovereign interim government” to take office by June 30 that “would assume the responsibility and authority for governing a sovereign Iraq.” But that government won’t have full command of its own armed forces and won’t be authorized to expel U.S. and other forces without U.N. Security Council approval, experts say.

Which laws will be in effect after June 30?

U.S. officials say the laws jointly approved by the CPA and the IGC will remain in effect unless they are amended. As it stands now, the post-June 30 interim government will not have the authority to change laws, but the future elected government will. Among the laws that U.S. policymakers say will remain in force until elections in 2005 is the Transitional Administrative Law (TAL) or interim constitution. “It [the constitution] cannot be amended except by a transitional government, which would be in place with the election of a 275-person assembly in January,” Deputy Secretary of State Richard Armitage said May 18. Neither President Bush’s speech nor the draft resolution mentioned the TAL. However, the White House fact sheet that accompanied Bush’s speech states that it will still apply.

How much authority will Iraqis have over their military?

The draft U.N. resolution is ambiguous on this issue. It says that the multinational force and the Iraqi government will draw up “arrangements ... to establish a partnership between the multinational force and the sovereign interim government of Iraq and to ensure coordination between the two.” Iraqi troops may be able to refuse commands from the American military with which they disagree. But U.S. officials have made clear that Iraqis will have no command authority over U.S. forces. The TAL states that Iraqi forces will fall under the command of the multinational force—and therefore under U.S. command.

Can the interim Iraqi government ask U.S. forces to leave?

It’s unclear. According to the draft resolution, it can ask but U.S. forces do not have to comply. It says the transitional government of Iraq can ask the Security Council to “review” the mandate of the multinational force in Iraq at any time, but the Security Council must make the final decision—and both the United States and Britain have a veto. On the other hand, Secretary of State Colin Powell said May 25 that that U.S. and allied troops will remain in the country only with the consent of the interim Iraqi government.

The resolution also states that the multinational force will have the “authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq including by preventing and deterring terrorism.” It does not give an end date for foreign troops in Iraq, only saying that the U.N. Security Council will review the troops’ mandate in one year.

What is the rationale for refusing to grant the interim government broader authority?

U.S. officials say that because the interim government is unelected, it will lack sufficient legitimacy to make laws and enter into long-term agreements with foreign governments. Grand Ayatollah Ali al-Sistani, the most powerful Shiite cleric in Iraq, favors early elections and has insisted that the power of the unelected government be strictly limited. Some experts say U.S. officials’ main concern is about the degree of control they will have over the transition process. They “believe they are going to do it better themselves,” Feinstein says.

Are arguments over the resolution expected at the United Nations?

France, Germany, and Russia have said that the new Iraqi government should be given wide powers over its own affairs and that the multinational force be given a timetable to leave. The draft resolution appears to fall short on these issues, so there may be some diplomatic wrangling. Some experts predict, however, that arguments will be muted and the U.S. text will prevail. “The U.N. is risk-averse after the breakdown [over the Iraq war] last March ... and I think they will paper over their differences,” Feinstein says. On May 24, German Foreign Minister Joschka Fischer signaled that compromise on the resolution was likely. “I think here there really is broad agreement. A consensus is producible, possible, and desirable,” he told the Associated Press. But whether the new resolution will encourage other nations to send additional troops remains unclear. In an interview with The New York Times May 19, German Chancellor Gerhard Schroeder signaled that he will oppose sending NATO and German troops to Iraq even after the new resolution wins U.N. approval.

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