Aid and trade

The reconstruction of post-war Iraq calls for a delicate balance between the obligations of the occupying forces and the sanctions imposed by the UN. Anita Esslinger reports

The recent announcement by the US government easing certain US sanctions on Iraq brings into focus some difficult legal issues concerning the obligations of UN member states, such as the US, with respect to UN-mandated sanctions and the responsibilities of the US and the UK under the international laws of war.

Background of US and UN sanctions

At the time of the Iraqi invasion of Kuwait, UN Security Council Resolution 661 of 6 August 1990 was adopted under Chapter VII of the UN Charter, which allows the Security Council to call upon UN members to apply measures, such as the complete or partial interruption of economic relations, when the council determines the “existence of any threat to the peace, breach of the peace, or act of aggression”.

Resolution 661 called on member states to prohibit: the importation of all commodities and products originating in Iraq – most notably oil and petroleum products; dealings in any commodities or products originating in Iraq and any activities that would promote the exports or transhipments of such products from Iraq; the sale or supply of any commodities or products, regardless of origin (excluding certain medical supplies and, in humanitarian circumstances, foodstuffs) to Iraq, including any activities which promote or are calculated to promote such sale or supply; and the supply of any funds or other financial or economic resources to the government of Iraq, or any commercial, industrial or public undertaking in Iraq, except for payments exclusively for humanitarian purposes.

In light of the measures adopted in Resolution 661, the US President issued an executive order that built upon an earlier order containing broadly similar prohibitions imposed unilaterally by the US. In addition to US emergency powers acts authorising the President to impose sanctions generally, the UN Participation Act (UNPA) was cited as authority for the order. The UNPA authorises, but does not mandate, the President to apply measures to give effect to UN Security Council resolutions.

Recognising the effect of sanctions on living standards in Iraq, Security Council Resolution 986 was eventually adopted, and under the Oil for Food Programme a mechanism for financing exports of humanitarian items to Iraq was provided. This was accomplished by permitting the importation of Iraqi oil as long as payments for the oil were placed in a UN-controlled fund. This mechanism also provided funding for the UN Compensation Commission, including reparations for “direct loss, damage… as a result of Iraq's unlawful invasion and occupation of Kuwait” pursuant to Security Council Resolution 687.

The lifting of sanctions

Under Article 27(3) of the UN Charter, the lifting of UN sanctions requires the vote of nine members of the Security Council, including the concurring votes of the permanent members. As has been widely reported in the press, there are considerable wranglings about the positions of various permanent members of the Security Council on this matter, the veto of any of which could prevent the lifting of sanctions.

It might be argued that the legal basis for the initial imposition of sanctions – threat to the peace, breach of the peace or an act of aggression by the state against which sanctions are directed – no longer exists with the removal of the prior regime. Some have argued that until UN inspectors can return to Iraq and make a finding that weapons of mass destruction have been destroyed, or no longer pose a threat, there is no basis for a determination that the threat no longer exists. This seems to be at odds with the situation on the ground.

There may be other practical reasons for wanting to continue at least some sanctions, such as the prohibition on the importation of oil other than in a controlled situation that ensures spending on humanitarian items and the continued funding of the UN Compensation Fund. However, the UN Charter does not, for example, appear to give the UN or the Security Council separate specific authority to deal with war reparations. Some have suggested that the UN has 'inherent powers' in this regard.

But regardless of the validity of the legal basis for the continuation of UN sanctions, the procedural requirements have not yet been met for their lifting.

It is in this context that President Bush announced the intention to ease certain US sanctions against Iraq. In furtherance of this announcement, the US Treasury Department has issued general licences that, with some significant limitations apparently aimed at consistency with UN sanctions, authorise US government agencies, plus their contractors and their grantees, to engage in all transactions that are within the scope of their official duties, as well as a licence permitting the exportation and re-exportation of goods to Iraq. Specific US government licences must be obtained for exports or re-exports to Iraq of dual-use goods and technology. Where such exports or re-exports are not in support of US government humanitarian assistance or reconstruction efforts in Iraq, then a submission must be made to the 661 committee. The current easing of US sanctions did not address the importation of Iraqi oil.

Even with these limitations, some commentators have been concerned as to whether the US actions might run foul of UN sanctions. US Treasury officials have said that the US will continue to abide by UN sanctions and have indicated that the easing of US sanctions will not conflict with UN sanctions. They also stated that obligations placed on the US under international law to provide for the welfare and security of the Iraqi people justify any apparent inconsistency with UN sanctions with respect to companies hired by the US government to handle reconstruction and humanitarian work.

In the UN Charter, the members agree to accept and carry out the decisions of the Security Council. However, under the international laws of war, including the Fourth Geneva Convention, an occupying power also has certain responsibilities to provide for the needs of the civilian population and to restore and maintain law and order. Commentary to the Fourth Geneva Convention suggests that there may be limitations under international law on the right of an occupying power to change the laws of an occupied country or its form of government based solely on the military strength of the occupying power. However, beyond the obligation to accept relief operations of impartial humanitarian organisations, it is not clear that there is any legal obligation to seek, for example, a UN transitional administration set up by the Security Council.

As noted in the commentary to the Restatement of Foreign Relations, which describes the foreign relations law of the US, modern international law is rooted in acceptance by the states that are the principal entities of the international political system. The UN can influence the development of international law, but only when such influence is accepted by the states. There is no executive institution to enforce international law and no international judiciary with general, comprehensive and compulsory jurisdictions. International law is law in the US, but it is subject to the US Constitution and to repeal by other US laws. When international law is not given effect because of later-in-time domestic law, the international obligations remain and the US might be in default.

In recognition of some of the difficult issues posed in the easing of sanctions without UN approval, the US, the UK and Spain have circulated a draft resolution for the Security Council, proposing the lifting of UN sanctions. The draft shows the US's and UK's recognition of their obligations as “occupying powers” under international law and seeks UN Security Council endorsement of certain responsibilities. The final text of any resolution will, of course, be the result of political agreement among the members of the Security Council.

Anita Esslinger is a partner in the London office of Bryan Cave