Editor's Summary  -  January 1998
(update June 2008: www.solami.com/rebirth.htm ¦ .../iraqsplit.htm ¦ .../aldeeb.doc)

Having obtained in writing the UN's green light to demonstrate the technical feasibility to pump oil from non-government-controlled Northern Iraq for meeting humanitarian needs ⁽¹⁾ Sardar Pishdare proceeded forthwith to the area to prepare the terrain and organize the local leaders' support for the implementation of his "Project Backdoor" (English for Pishdare - sic!). Al Hickerson, an American oilman Gina Lewis introduced to us, had come to Geneva to advise us on some fundamentals of the petroleum industry and to give us a hand in our venture. Nobody had been able to answer his recurring question "Who owns the oil in the Kurdish region of Iraq?" And it was three years before completion - and some 16 years before we actually became aware - of the one study which offers some precious guidance on this crucial question, i.e. Sami Aldeeb's ground-breaking inquiry into "RES IN USU OMNIUM EN DROIT MUSULMAN ET ARABE: Question du feu (le pétrole)". Nevertheless, Al promised to bring in the necessary equipment on his own as soon as he knew what the situation is really like on the ground. So Sardar, accompanied by an expert from Occidential Petroleum Co., had gone to the area fairly packed over the Christmas and New Year's holidays.

     Meanwhile, in Geneva, Sadruddin Aga Khan had returned from Iraq. The "explosions" inside his hard wood-panelled UN office could almost be heard across town. We were made to understand that Project Backdoor was seen as upsetting existing plans and the order of things as decided by the powers that be, so that it had no chance of ever taking off the ground, no matter how rational and effective this project promised to be for addressing the urgent humanitarian needs there. Piqued by this non-sensical turn-around and attitude of the UN bureaucracy, we leaned back and - with Al's persistent property question still echoing in our ears - we took another look at the area in question in an old German historical atlas ⁽²⁾. There, mention of the "Mosulgebiet" (about double the size of and covering all of the "liberated Kurdish area") immediately raised our intense curiosity. For our experience in international matters and our instinct told us that there must be interesting and probably still valid documents about the conditions under which the League of Nations had attached this territory to the then-dependent Kingdom of Iraq.  The libraries being closed over the holidays and the League of Nations archives as the most authoritative source opening only after its annual inventory on January 16, we were left to wait a little longer. In summary, here is what we then found (for detail, see official documents):

1.     The Mosul Vilayet was an integral part of the Ottoman Empire. South, it borders on Iraq's Baghdad Vilayet, to the West on Syria, to the North on Turkey and to the East on Iran. It includes the Diala District, as defined in the League of Nations inquiry of 1925. According to the last available census (1920), its surface is 91009 km², and its inhabitants were 579713 Sunnites, 22180 Shiites, 14835 Jews and 55470 Christians (Report by HM's Government to the League Council on the Administration of Iraq for the year 1929, p.71).

2.      The Council of the League of Nations conditionally attached the Mosul Vilayet in 1925 to the Kingdom of Iraq, rather than to Turkey, and provided for international protection to the Mosul Vilayet's ethnic and religious communities. The Kingdom of Iraq, by decision of the League of Nations' General Assembly, gained its independence on 3 October 1932. As a condition of its independence, Iraq had made its formal Declaration of 30 May 1932 vis-à-vis the League of Nations (E/CN.4/Sub.2/1992/NGO/27). Iraq thus incurred international obligations which it could not alter unilaterally, and from which it could be relieved only by the League of Nations or, in the event, by the United Nations acting as the League's succesor in accordance with UN General Assembly resolution 24 (I) of 12 February 1946.

3.     The conditions under which Iraq obtained its independence have never been altered. The circumstances which gave rise to these international minority protection and other obligations have essentially remained. According to testimony published by the UN Human Rights Commission's Special Rapporteur on Iraq (e.g. E/CN.4/1993/45, §§89-126; E/CN.4/1995/138, p.8), past and present human rights conditions in Iraq have provided no justification for abrogating any of Iraq's related international obligations.

4.     The UN Secretariat, in its "Study on the Legal Validity of the Undertakings Concerning Minorities" of 1950 (E/CN.4/367, p.51) had concluded:

    "1.     As regards ordinary causes of extinction of obligations, since Iraq was bound by a Declaration made before the Council of the League of Nations, the dissolution of the latter suspended the obligation, which would return into force only if the United Nations decided to take the place of the League of Nations.
     2.     As regards change of circumstances, there seems to be no special circumstance affecting the position of Iraq."

    "These obligations represent the very essence of the sacred trust of civilization. Their raison d'être and original object remain. Since their fulfilment do not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ [i.e. the Council of the League of Nations] ceased to exist. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon." (I.C.J. Reports 1950, p. 133).

    "With respect to ... the obligation ['related to the machinery for implementation' which was 'closely linked to the supervision and control of the League'] the Court was of the opinion that effective performance of the 'sacred trust of civilization' required that the administration should be subject to international supervision and that this necessity for supervision 'continues to exist despite the disappearance of the supervisory organ under the mandate system. It cannot be admitted that the obligation to submit to supervision has disappeared merely because the supervisory organ has ceased to exist ...'" (I.C.J. Reports 1950, p. 136)

7. H.E. Tariq Aziz, as Foreign Minister of Iraq, declared to the UN Special Rapporteur on Iraq:"Iraq would be the first to recognize Kurdish independence" (E/CN.4/1992/31, §108). Since 1991, Iraq de facto has withdrawn its control, administration and protection from most parts of the Mosul Vilayet. In order to avoid a regionally destabilizing vacuum and to enhance the credibility of international minority protection rights and obligations, setting up an unprejudicial effective interim administration for the Mosul Vilayet has become important.

8. The leaders of the Mosul Vilayet's Assyrians, Kurds and Turkomans thus founded the Mosul Vilayet Council in May 1992 as the Mosul Vilayet's "supreme secular authority of the Mosul Vilayet, wherein all indigenous Arabs, Armenians, Assyrians, Kurds and Turkomans have the right to be equitably represented by their own leaders"(Declaration of Separation from Iraq, 20 October 1992). All of its autochthone tribes and political, religious, ethnic and other constitutive groups have since joined this undertaking to responsibly exercise their right to self-determination by signing the Unity Declaration of 31 May 1994.

__________________
(1)    letter of 19 November 1991, signed by Henrik Olesen, Director of the then-absent Sadruddin Aga Khan's "Office of the Executive Delegate of the UN Secretary-General for a UN Inter-Agency Humanitarian Programme for Iraq, Kuwait and the Iraq/Turkey and Iraq/iran border areas"
(2)    Atlas zur Weltgeschichte, 2, Deutscher Taschenbuch Verlag, München 1966, S.166
..

    The Frontier Treaty between Turkey and the Kingdom of Iraq of June 5, 1926, was ratified on July 18, 1926; it is claimed to have then come into force (2). Though settling "as definitive and inviolable the frontier line" between Turkey and Iraq, some questions relating to the status, in international law, of the Mosul Vilayet (3), and its oil resources were thus answered, while others - some apparently asked neither then nor until now - were left open. That, however, does not appear to make them now irrelevant, untimely or unhelpful.

     Art.14 of the 1926 Treaty provided for the Turkish Government to receive from the Iraq Government, for 25 years, 10% of "all royalties" accruing to it under specified provisons of the March 14, 1925 concession it granted to what later became the Iraq Petroleum Company(4). This is seen to have effectively provided compensation for the transfer of ownership to Iraq of specified "property and possessions" contained in the Turkish Empire's "Civil List", as detailed in article 60 of the Peace Treaty of Lausanne of July 24, 1923 (5).

     Of course, said article 60, paragraph 1, provides that "The States in favor of which territory was or is detached from the Ottoman Empire after the Balkan wars or by the present Treaty shall acquire, without payment, all the property and possessions of the Ottoman Empire situated therein." However, that same article also limits this ownership transfer by specifying:

     "The provisions of this Article will not modify the juridical nature of the property and possessions registered in the name of the Civil List or administered by it, which are not referred to in the second and third paragraphs above."(6)

     Automatic State monopolies on land, mineral and other properties used to be the trademarks of Communist societies; neither the Turkish Constitution, nor the Turkish Mining law of 1886/1906 provided for them. Rather they accomodated private petroleum seepage rights, such as those accorded by ancient firman to the Naftchi family concerning an oil field at Baba Gurgur near Kirkuk (7). Even the Sultan, in 1890, found it necessary to secure "for himself a number of the known oil-bearing lands" (ibid., p.13). Thus, the Iraqi State's ownership claims to mineral resources subjected to Iraq's conditional sovereignty cannot be based on prior rights and the rules of succession - nor do nationalization or other coercive measures add up to more than a farce of legal ownership.

     To begin with then, neither pre-independence laws, customs or practice, nor either of the two above-mentioned fundamental treaties of 1923 and 1926, support the Iraqi State's practice of disposing of Iraq's mineral wealth as if it were the legal successor to land and mineral resources ownership rights. The aboriginal residents of the Mosul Vilayet traditionally owned and transferred titles to land, water and mineral resources by way of tribal customs. The tribes retained these rights and settled claims among their members, other tribes and third persons which may legally have obtained ownership of related titles. Having been an integral part of the Ottoman Empire, Turkish ownership laws and customs applied there at least until the League of Nation attributed its Mandate for Iraq to Great Britain. During the period of the Mandate, the land, water and mineral resources rights, if they changed hands at all (8), are not seen as having been subject to any automatic aligning - except perhaps in favor of the aboriginal owners, i.e. the local tribes and their leaders. Iraqi law in force prior and after Independence was to protect these rights.

     Under these circumstances the concessions the Iraq Government granted in 1925 may have been based and applied on erroneous assumptions. Be that as it may, those and later concessions concerning the Mosul Vilayet (just as later their nationalization) are not seen to have legally altered the land and mineral resources ownership by, mostly, the local tribes and families and their leaders. Thus, when it was granted independence in 1932, Iraq's constitutive Declaration of May 30, 1932 (9), became important for the effective protection not only of human and minoriry rights, but also of private property. For in art.14,1 of said solemn Declaration, the Iraqi Government unambiguously stated (10):

"all rights of whatever nature acquired before the termination of the mandatory regime by individuals, associations or juridical persons shall be respected".

 "Any Member of the League of Nations may call the attention of the Council to any infraction of these provisions. They may not be modified except by agreement between Iraq and the Council of the League of Nations acting by a majority vote.
    Any difference of opinion which may arise between Iraq and any Member of the League of Nations represented on the Council, with regard to the interpretation of the execution of the said provisions, shall, by an application by such Member, be submitted for decision to the Permanent Court of International Justice."

    Conclusion: Unless proven otherwise, the original tribes of the Mosul Vilayet are seen to be the legal owners of its oil fields, in as much as sovereignty transfers do not bestow automatic legal ownership of private property, and as the acquisitions of related rights by Iraq in line with its international obligations have been or will be voided, e.g. due to breach of Iraq's obligations.
 

NOTES

(1)     CORUM - Center for Free Zones and Paneuropean Studies
        POB 2580 - CH-1211 Geneva 2 (e-mail: swissbit@solami.com; fax: +4122-7400362)
(2)      With Iraq becoming an independent subject of international law on October 3, 1932 (date of termination of the League of Nations' Mandate administered by Great Britain, and of Iraq's admission as Member of the League of Nations) the coming into force of this Treaty may not have occured until then - but also not later, due to Great Britain's status as a party to same and the corresponding provision of Iraq's constitutive Declaration of May 30, 1932. This difference of dates might become significant, e.g. if further research turned up evidence that the oil concessions granted by Iraq prior to its independence infringed on ownership rights protected by that Declaration, e.g. those of the aboriginal inhabitants of the Mosul Vilayet, but perhaps also those claimed by Turkish subjects who lawfully had acquired related rights.
(3)      On December 16, 1925, the Council of the League of Nations conditionally decided in favor of the present frontier line between Turkey and Iraq. It attached strict conditions for the long-term protection of minorities and commercial rights, providing garantees for the Kurdish population regarding the local administration (Official Journal of the League of Nations, February 1926, p.191-2). On March 11, 1926, the Council put this decision into force (ibid., April 1926, p.502-3). In his critical review of this decision - which, in effect, attributed the Mosul Vilayet to Iraq rather than to Turkey - P.E.J. BOMLI concludes it to be "nul and void" and that Iraq's territorial sovereignty over the Mosul Vilayet rests exclusively on its Frontier Treaty with Turkey of June 5, 1926 ("L'Affaire de Mossoul", H.J., Paris 1929, p.245). See also: "Sovereignty Questions Regarding the Mosul Vilayet - An Inquiry on Northern Iraq", CORUM Geneva, 1992.
(4)      "Royalty payments to the 'Iraq Government from 1926 to the end of 1951 ... amounted to £1,900,000" (Stephen H.LONGRIGG, "Oil in the Middle East", Oxford University Press, 1961, p.188).
(5)     League of Nations Treaty Series (LNTS), vol.28, 1924, p.53
(6)      In the late twenties, this has given rise to claims by the heirs of Sultan Abdul Hamid, i.e. "an ever-growing body of Turkish princes and princesses" who, in the words of LONGRIGG (op.cit. p.68),

"stood together in their assertion that all the oil rights transferred by Abdul Hamid to his Privy Purse were their rightful property. They claimed that the decree of 1908, re-transferring the properties to the State, had not been ratified by Parliament; that of 1909 had been neither ratified nor officvially published, and both were extorted under duress. The successor Sultan had in January 1920 issue a decree, re-transferring all to the Privy Purse, and in 1922 the Court of Qasamat had recognized the heirs' claims. The latter added that the Turkish Republic had no power or right to assign these properties ...
      Their lawyers were active at Lausanne in 1923 and subsequently at Geneva. In 1926 began the formation of companies to acquire and seek to validate these claims - the Anglo-Hellenic Finance Corporation, the Valideh Trust Limited and the Aegean Trust Limited. Many applications were made to the 'Iraq Government, which ignored them, and to the Turkish [after 1929: Iraq] Petroleum Company. In 1930 both the Anglo-Turkish Mixed Arbitral Tribunal and the Italo-Turkish Mixed Arbitral Tribunal declared the claim to be beyond their competence. Four other companies were subsequently registered in Canada to deal with the claims, and American lawyers found a fluctuating but agreeable income from the diminishing purses of the princes and princesses."

 "The resolution of the last League Assembly of April 18th, 1946, shows that all League Members agreed for the Mandates to remain in force until new arrangements were reached between the Mandatories and the United Nations." [nota bene: Iraq became a Member of the United Nations on 21 December 1945, i.e. while it was still a Member of the then still existing League of Nations, and without having then or since sought, obtained or effectuated any reduction in the formal international obligations it incurred volontarily, as a conditio sine qua non of its independence, and laid out bindingly in said Declaration]. "The Court however holds that the rule that provisions must be interpreted according to their natural and ordinary meaning cannot be applied if it leads to 'a meaning incompatible with the spirit, purpose and context' of the clause or instrument in question. The recourse of individual Members of the League to the Permanent Court, in addition to the administrative supervision by the organs of the League, served as 'the final bulwark of protection by recourse to the Court against possible abuse or breaches ..."

The UN Security Council resolution 688 (1991) is reviewed in light of actual conditions and foreseeable needs in Iraq. The effects of, and the options concerning the Memorandum of Understanding are discussed. Also, the conditions under which Iraq acquired independence on 3 October 1932 (date of termination of Britain's Mandate and Iraq's admission to the League of Nations) are reviewed with particular regard to the people of the Mosul Vilayet. Iraq's violations of these "obligations of international concern" open the way to appropriate solutions reflecting Iraq's limited sovereignty.

THE PROBLEM: Mainly due to the UN's unreserved signature and tacit ratification of its 1991 MEMORANDUM OF UNDERSTANDING (MOU) with Iraq (wherein it is unreservedly acknowledged that resolution 688 "has not been accepted" by Iraq), the UN's humanitarian programmes in Iraq - in fact if not in law - have been based not on 688 but on the MOU which gives Iraq otherwise unavailable discretionary powers hampering and even jeopardizing UN relief works (1). With the need for at least continuation of these works demonstrated beyond reasonable doubt by various UN reports (2) and other accounts, further dependence on the present Iraqi leadership's good faith, goodwill and effective cooperation is not seen to be compatible with either the rôle or stature of the involved United Nations organs. For this could also seriously undercut the prestige and credibility of the United Nations as an effective instrument for international peace, security and relief.

THE SOLUTION: Baghdad-independent alternative or complementary legal instruments to those now in place, ie. 688 and the MOU. The latter will run out automatically 30 June 1992. It should not be prorogated, even if Baghdad deigns to extend it, lest the people it is designed to protect are to be left without effective protection and minimum human rights standards, and the world community be subjected to still further humiliations and complications. Such new legal instruments may consist of corresponding Security Council texts which may be making creative use of existing texts, such as the UN Statute on Trust Territories, in combination with the still valid IRAQI DECLARATION of 30 May 1932. And they may be brought to bear in the sense of the "exceptional response" recommended by the Special Rapporteur of the UN Human Rights Commission. That Commission, on 5 March 1992, with 35 votes for and Iraq's vote against, adopted a resolution condemning human rights abuses in Iraq, and requesting its Special Rapporteur "to develop further his recommendation for an exceptional response" notably to the policies of "genocide-type" treatment of the Kurdish people by the Iraqi authorities. Measures short of formally withdrawing recognition from the present Iraqi Government: enforcing international minority rights and protection guarantees with Human Rights Monitors, National Sponsorship for Non-Self-Governing Territories, Trusteeship System, UN troops, Neutralized Zones, etc; Security Council review of the conditions under which Iraq gained independence, under which the League of Nations attached the Mosul Vilayet (northern region) to Iraq rather than to Turkey, and under which Iraqi oil property rights were - or were not legally - acquired by the State of Iraq; etc.
 

With its resolution 688 of 5 April 1991 (3), the Security Council

In the "FURTHER REPORT OF THE SECRETARY-GENERAL ON THE STATUS OF COMPLIANCE BY IRAQ WITH THE OBLIGATIONS PLACED UPON IT UNDER CERTAIN OF THE SECURITY COUNCIL RESOLUTIONS" (S/23687, 7 March 1992), on the subject of resolution 688, it is stated:

Experiences made, imperatively call for a fundamental policy review, with the objective of enhanced effectiveness of the UN's various humanitarian efforts in Iraq. Existing measures must be checked against resolution 688, so as to strengthen - rather than weaken - this reference date in international humanitarian law. An assertive 688-based policy is thus called for, seeking to abrogate the MOU at the earliest possible moment, and to replace it - rather than to renew it - with an independent interim regime, in line with UN rights and obligations, as appropriate responses.

In order to secure the widest possible political support, the world community's response to the Iraqi authorities' actions and inactions should be specific, with the envisaged independent interim regime based on generally recognized legal fundaments. The 4^th Geneva Convention on the protection of civilians in war and the UN Charter are seen to avail themselves to that effect. Appropriate structures may be built on that basis in application of the still valid constituent IRAQI DECLARATION of 30 May 1932 (5). Having been stowed away in the Archives of the League of Nations, this fundamental document has only recently been re-discovered. It provides for the effective protection of human, minority (religious, ethnic, language) and property rights by way of "obligations of international concern" which, as "fundamental laws of Iraq", are specifically declared to take precedence over any present or future Iraqi "law, regulation or official action". Moreover, these obligations have explicitly been "placed under the guarantee of the League of Nations" (with related rights and obligations now seen to be residing with the UN Security Council, in line with the principles reflected in articles36 and 37 (6) of the Statute of the International Court of Justice as well as with those principles which have repeatedly been confirmed and strengthened by various UN institutions, notably in the case of South Africa's League of Nations Mandate on South-West Africa(7)).
 

ON IRAQ'S LIMITED SOVEREIGNTY IN THE MOSUL VILAYET

In line with art.3 of the Treaty of Lausanne of 24 July 1923 (8), and art.22 of the Covenant of the League of Nations(CLN) (9), the Council of the League set up a special Commission of Inquiry (CI) on the Mosul Vilayet which was disputed by Turkey and Iraq (the subject of a League Mandate entrusted to Great Britain (10)). This Commission was to assemble and examine the relevant facts and to submit its recommendations to the Council of the League.

After extensive consultations among the different ethnic groups (11) who have inhabited this contested Mideastern crossroad for centuries, the CI completed its report 16 July1925 (12).

The Turkish Government has strongly opposed the formal attachment of the Mosul Vilayet to Iraq, citing notably its Turkish and Kurdish inhabitants' right to self-determination as well as historical and conventional rights (13). Although it has eventually accepted the border with Iraq as stipulated by the Council of the League, and in 1946 and later has concluded bilateral agreements with Iraq pertaining to border questions, some see Turkey to have never formally renounced its claims to the Mosul Vilayet which it considered to be an integral province of its national territory.

Also, the League's Commission of Inquiry of 16 July 1925 - "Question of the Frontier between Turkey and Iraq" C.400. M.147 - authoritatively concluded in these terms:

Iraq is the first League-mandated country to gain independence, but that might explain only partially the apparent tiptoeing. The documents, reports and correspondences undug so far in the Archives of the League, moreover, do not support the view that over the years the notoric ethnic tensions between Arabs, Turks and Kurds have subsided to a level affording to reduce or even abolish the above strict reservations and conditions recommended by the CI. On the contrary, the League Council found itself compelled to enact these recommendations in every detail and at every step and, in the end, even to complement and to stiffen them - regardless of how much, in law and in practice, these safeguards effectively have encroached on Iraq's sovereignty. Indeed, those who, in the late twenties and early thirties, were charged with the task of monitoring the situation must have quickly come to the conclusion that - short of an outright amputation of the contested territory - an early termination of Britain's Iraq Mandate could not responsibly be envisaged without a new set of strict, verifiable and permanent safeguard measures, particularly for the inhabitants of the Mosul Vilayet.

Eventually, the partisans of Iraq's early national independence developed a formula for a solemn irrevocable international Iraqi guarantee which made key human rights the subject of Iraqi "obligations of international concern ... placed under the guarantee of the League of Nations", over-riding Iraqi national law, and thus going in some points even beyond the measures stipulated by the League's Commission of Inquiry. As an integral part of Iraq's ascension to national independence they were then seen to adequately cover the foreseeable contingencies. Following are some excerpts from this apparently not widely known - and heeded - key document (16) (see annex; fn 5) with the title:

CONCLUSIONS

Iraq, by fiat of the League of Nations, on 3 October 1932, was formally, but only conditionally, relieved of the tutelage bonds entailed in the Mandate the League had entrusted to Great Britain. As such it became on that date a closely observed, yet independent subject of international law, thus being subject only - but nevertheless fully - to the international obligations entered into by Iraq's constitutional authorities.

The above Declaration of 30 May 1932, is seen to constitute such an instrument unconditionally and permanently binding Iraq on the international level. The beneficiaries of these rights are the Iraqi, notably the Kurdish citizens living in the Mosul Vilayet. These rights have been declared officially to constitute for the Iraqi Government solemn "obligations of an international concern [that are] placed under the guarantee of the League of Nations." They take precedence over all present and future Iraqi laws and regulations, and interested third nations are thus empowered to initiate proceedings in the appropriate international fora, ie. the United Nations and/or the International Court of Justice.

This Iraqi Declaration is thus seen to be a constituent element - and a still indispensable one at that - of both Iraq's existence as an independent subject of international law and of Iraq's territorial integrity. Moreover, its collatoral, ie. Iraq's far-reaching obligations flowing from it can also fairly be assumed to have in no way suffered a diminution in international law. The question then arises on the degree of effective compliance or non-compliance, and on eventual consequences and remedy measures.

The UN Human Rights Commission, no less than the Security Council, on various occasions, has condemned Iraq for wide-spread, systematic and officially sanctioned human rights violations particularly vis-à-vis Kurds (17). These violations involve fundamental modern texts of international humanitarian law which have been duly ratified by Iraq, such as the 4^th Geneva Red Cross Convention and Additional Protocols. But these violations are also seen to be compatible neither with Iraq's 1932 Declaration, nor with the minority protection guarantees thus incumbent upon the United Nations. Pointedly, the Council of the League of Nations linked the attachment of the Mosul Vilayet to Iraq to strict conditions.

Has Iraq thus forfeited whatever limited sovereignty rights it was entrusted with regarding the Mosul Vilayet? This may be a matter for the International Court of Justice to decide. Until then - with the burden of proof resting clearly with Iraq, and in light of the prevailing human rights circumstances and the genesis of the Mosul Vilayet's conditional attachment to Iraq - the United Nations, in international law, are not seen to be obliged to respect whatever territorial claim Iraq may have beyond the internationally recognized borders surrounding the Basra and the Baghdad Vilayet. Accordingly, the Mosul Vilayet, in international law and for the time being, may be treated as a NON-SELF-GOVERNING TERRITORY in the sense of articles 73 and 74 of the UN Charter, with those members of the Security Council so wishing eventually assuming corresponding responsibilities (18).
 

OPTIONS FOR PROMPT REFLIEF, REDRESS AND RECONSTRUCTION

Non-Self-Governing or Trust Territories and/or Neutralized Zones?

The UN Charter (articles 75 to 91) provides for an international trusteeship system (19) under the authority of the United Nations. On the surface of it, none of those articles is seen to fit the case of the Mosul Vilayet. A closer look provides better insights.

In the above light, the Security Council, upon further analysis, may conclude that the League of Nations Mandate entrusted to Great Britain, on Iraq's independence day of 3 October 1932, lapsed only conditionally. That could provide some legal mileage for developing various options. In the event, they could affect either the whole of Iraq, or only the Mosul Vilayet and/or those areas on the northern border of the Tigris wherever officially perpetrated violations of internationally guaranteed minority protection rights cannot be safely ruled out. Placing these territories promptly under the UN trusteeship system is the least what those officially abused minorities may expect from the UN.

In view of the special legal circumstances of the Mosul Vilayet, a step-by-step approach may also provide a practical pathway, eventually leading to independence by way of the status of a non-self-governing territory in the sense of articles 73 and 74 of the United Nations Charter. This may or may not involve, as an immediate first step, the establishment of a Neutralized Zone in the sense of article 15 (20) of the 4^th Geneva Convention of 1949. And it may or may not take advantage of the entry vehicle to the UN trusteeship system provided for in the Charter (art. 77, 1c). At any rate, evidence suggests that the present "safe haven" in Northern Iraq, being a part of the Mosul Vilayet, in international law, is neither a legal no-man's land nor need it be treated as being subject to Iraq's internationally recognized sovereignty.

As to the best choice among the various available instruments for effectively relieving the plight of the Iraqi civilian minorities in Northern and Southern Iraq, all those discussed are based on solid legal grounds, yet the experience with these instruments and the available infrastructure for their application vary greatly. Security is seen to be a prime concern in each case. The interim solution(s) eventually adopted on the basis of the UN Charter would seem to offer no significant problem in that regard. For the Security Council, using authority granted to it in articles 39ss of the Charter, could in each case provide for adequate physical protection of the populations concerned with all the necessary means, including UN troops.

In the case of Neutralized Zones - which may be set up promptly anywhere in Iraq - Iraq's obligations under resolution 688 (art.3), together with art.15 of the 4^th Geneva Convention, are seen to provide the legal basis for unilaterally (21) established neutralized zones for the protection of civilians. These zones might be exclusively administered by the International Committee of the Red Cross ICRC and the League of Red Cross and Red Crescent Societies. And the inhabitants of these zones might be protected by police forces (22) flying the Red Cross flag; in the event, they might be drawn in particular from Allied Forces.
 

NOTES

(*)6 April 1992, this paper was prepared by the CORUM Research Group under the direction of J.A.Keller; it expands on earlier studies - "Sovereignty Questions Regarding the Mosul Vilayet", 2 February 1992, and "Who - in International Law - Now Owns the Oil in the Mosul Vilayet", 27 February 1992, by CORUM, POB 2580, 1211 Geneva 2, Switzerland (fax: 004122-7338671,e-mail: swissbit@solami.com). Without necessarily sharing the views expressed, have thus contributed in one way or another notably: A.Albonetti, P.Dimier, B.Elbert, C.Vieira dos Santos, P.Martin, E.Querio, F.Ruiz, M.Soleiman, L.Takla, P.Wainwright. The editor, of course, is alone responsible for eventual errors & omissions. He wished to express his gratitude for the assistance and numerous services provided by the Secretariat of the United Nations Office in Geneva, by Mr.Pierre Pelou (Director of the UN Geneva Library), by the League of Nations archivist Mme Ursula Ruser, and by T.Dimitrov, N.Leneman, J.Ribes, S.Rodin, W.Simon, M. and N.Wasser

vilayets  surface km2  Sunnites    Shiites     Jews   Christians    total
Baghdad     141227      524414      750421    62565      20771     1360304
Basra       138741       42558      721414    10088       2551      785600
Mosul        91009      579713       22180    14835      55470      703378
total       370977     1146685     1494015    87488      78792     2849282

(12)"Question of the Frontier between Turkey and Iraq", Commission of Inquiry Report, 16 July 1925, League of Nations Publication C.400, M.147, 1925 (www.solami.com/Turkey-Iraq.pdf)
(13)     With the arrival of the nationalists under Kemal Pacha (Atatürk) on the political, military and diplomatic scene in Turkey, their successful campaigns and territorial policies ruled out many of the concessions their predecessors had found themselves constrained to make in the Peace Treaty of Sèvres of 10 August 1920 (which thus never came into force, yet, is formally referred to in art.XIV of the British-Iraqi Alliance of 10 October 1922). However, these policies do not appear to have been fundamentally against the creation of autonomous regions or even independent states on "core-Turkish" territory, notwithstanding rejection of the Sèvres Treaty which, in art.62-64, explicitly provided for the eventual creation of an "independent Kurdish State" involving notably Turkish Kurdistan and the Mosul Vilayet. For one thing, these Turkish policies are seen to be largly inspired by President Woodrow Wilson's principle of self-determination, as expressed notably in point 12 of his 14 Points on World War I peace terms:

     "The Turkish portions of the present Ottoman Empire should be assured a secure sovereignty, but the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development, ..." in: SCOTT, J.B., "Official Statements of War Aims and Peace Proposals" Carnegie Endowment Washington 1921, p.238.

    "We accept that in the case of the three Sandjaks [Kars, Erdehan and Batoum] which united themselves by a general vote to the mother country when they first were free, recourse should again be had, if necessary, to a free popular vote." (art.2; HUREWITZ, op.cit, p.210)

    "... The Council, on January 28th, declared itself prepared in principle to pronounce the termination of the mandatory regime upon admission of Iraq to the League of Nations, provided that Iraq should in the meantime have entered into undertakings before the Council, the nature of which were specified in the Council's decision.
     6.     These undertakings have been assumed by Iraq in a Declaration the text of which was approved by the Council in its Resolution of May 19th, 1932, and which has been signed and ratified by Iraq and deposited with the Secretary-General. The text of this Declaration is annexed to the present memorandum. ...
     12.     The Declaration referred to in paragraph 6 above ensures the full observance of all international engagements assumed by the Iraqi Government or by the Government of the United Kingdom on behalf of Iraq."

    1.     The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:
a.  territories now held under mandate;
b.  territories which may be detached from enemy states as a result of the Second World War; and
c.  territories volontarily placed under the system by states responsible for their administration.
    2.     It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms.

    The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.

(a)  wounded and sick combatants or non-combatants;
(b)  civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.
     When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone."

     "may be defended against certain dangers, and may, for example, have sufficient police to ensure order and to prevent the entry of irresponsible groups, whether or not they belong to the enemy. ... The prohibition of military defence thus excludes only a systematic military defence, or network of fortifications." (emphasis added).

In view of the Iraqi Government's outright rejection of the UN Security Council Resolution 688, and in light of its persistent practices which are seen to be compatible neither with humanitarian law nor with Iraq's statutory and other international obligations, the Office of the UN Secretary General's Executive Delegate is looking into the "interesting possibilities" outlined by Kurdish leader Sardar Pishdare, has taken note of his plan (2) "to demonstrate the technical feasibility of making these wells [located in Kurdish-controlled Iraq North of the 36th parallel] produce, and of applying the proceeds to Iraq's humanitarian needs" and is awaiting "the technical feasibility results" (letter of Nov. 19, 1991).

NOTE: Apparently in response to this non-military enforcement of humanitarian UN Resolution 706, the Iraqi Petroleum Minister Oussama al-Hitti, at a Baghdad press conference December 25, 1991, revealed the Iraqi government's conditional willingness to consider applying this "non-applicable" - and thus repeatedly rejected - key UN Resolution 706; nevertheless, he wanted it to be re-negociated by the Iraqi Foreign Minister in line with Iraqi policy. Yet, a corresponding February meeting with UN officials in Vienna was called off unexplained by Iraq.

The sudden collapse of Communist dogmas, institutions and networks comes at an unexpected moment in history on top of basic questionings and re-orientations notably among Muslims living in societies which, due to economic or social gradients, have not been noted for their stability. Like in the case of Algeria and some former USSR republics, the free flow of things might thus aggravate already volatile political, economic and social conditions - to the point of entirely uncontrollable developments possibly affecting the basic regional setup and, for some years at least, Western oil supply interests. The clear-sighted search for and the determined promotion of a generally and mutually stabilizing catalyst for the Mideast is thus urgently called for.

NOTE: Traditionally pragmatic, open and Western-friendly Muslims, the Kurds with their strong European roots, in most relevant ways, would seem to avail themselves best for this key rôle, even from the point of view of their Iranian, Turkish and Arab neighbors. The powers that be might thus want to consider supporting the above-mentioned "UN feasibility study" regardless of what actions and inactions the Iraqi Government may pursue ... and to seek inspiration from the somewhat analoguous case of Switzerland where, in 1815, the powers that were agreed to what is still valid and mutually beneficial (3).

_______________

(1)"Dominent Middle East oil reserves critically important to world supply" Oil & Gas Journal, 9/23/91, p.62
(2)     Indications are that all Kurdish tribes and leaders (Massoud Barzani, Ali Homam Ghazi, Jalal Talabani, etc.) support both this plan and Sardar Pishdare's leadership for its development and execution.
(3)    As discussed at greater length by the same author in his contribution to the European Confederation Conference, "On the Ideal Nation", Austria, France, Great Britain, Prussia, Russia, at the Paris Congress on November 20, 1815, adopted the time-tested Swiss neutrality formula devised by Charles Pictet-de Rochemont:

"The neutrality and inviolability of Switzerland and its independence of all foreign influences are in the true interests of the politics of Europe as a whole." (reproduced in: CPJI 1930, C 17-1 II, p.1191)