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Can Iraq be placed under United Nations Trusteeship?
What legal or political obstacles do exist for the direct or adapted
application of the United Nations Trusteeship System to parts or the whole
of Iraq? What arguments speak in favour of it and who would be entitled
to invite the United Nations for negotiations?
As to international law, every people of an existing or developing State has a claim to self-determination. In the days of decolonization after World War II, the term "people of a developing State" meant the native people in the colonies. (1) And a typical example of a "people of an existing State" claiming self-determination is a people under occupation. (2) Therefore, the Iraqi people is despite its occupation by the Coalition still a people of an existing State in that sense and thus entitled to the right to self-determination by international law.
According to the United Nations "Friendly
Relations Declaration" of October 24, 1970 (Res.2625/XXV),
the peoples of existing or developing States can observe their right to
self-determination in four different ways:
(1) by establishing a sovereign and independent State;
(2) by associating freely with an independent State;
(3) by integrating freely with an independent State; or
(4) by emerging into any other political status freely determined by the people. (3)
As long as the people under occupation has not agreed to the annexation of a territory, it is still entitled to the right to self-determination. (4)
The right to self-determination can be exercised through a referendum. However, if circumstances do not allow a referendum to be carried out in a way that could reliably reflect the free will of the people, representatives traditionally recognized as legitimate, i.e. representatives of ethnic, religious and other constituent tribes and communities, are seen to be entitled to carry out this task.
In the case of the Iraqi people, it appears indicated to examine the fourth option which covers any status not falling under any of the preceding three options. It says that any political status based on a free decision by the Iraqi people stands essentially unopposed by international law and must, therefore, be respected by the international community.
Nevertheless, international law’s peremptory norms limit the choice of status. Such limitations to the exercise of the right to self-determination become relevant in circumstances jeopardizing the protection of elementary human rights and of international humanitarian law, respect for the prohibition of force and/or the maintenance of international peace. From these limitations derive rights and obligations for the occupation powers in particular and the international community in general: They are at the same time entitled and obliged to commit themselves to the protection of the above-mentioned peremptory norms. Actions designed to fulfil these obligations are justified restrictions of the right to self-determination as long as they are limited to what is necessary.
In case of danger to international peace and security due to the risk of a conflict in an occupied State to spill over into one or more neighbouring States, the exercise of the right to self-determination must, in principle, await the emergence of conditions excluding said danger. However, and particularly if the occupation itself is the reason for the inner-state conflict, the very exercise of the right to self-determination need not fuel but may in fact significantly contribute to the resolution of said conflict. A criterion therefore is also whether the withdrawal of the troops and the ending of the occupation would lead to peace or to civil war – in any case, such a prediction needs a sufficient level of certainty. (5)
Moreover, rights and obligations are not restricted to ensuring security and peace by military and police only. The occupied people can and must be informed on the various constitutional options to secure peace and security after the era of occupation – a right and obligation which is compatible with the right to self-determination and which is occasionally referred to as nation building. For better understanding, and as it touches on the principle of non-interference, it is advisable for the international community to fully analyse and draw on the experiences made in earlier cases of nation building. (6)
We therefore come to the conclusion that nation
building is permitted in the light of the right to self-determination as
long as the offered solutions (a) ensure the protection of and compliance
with the peremptory norms of international law and (b) are subject to a
free decision either by the people themselves in a referendum or by the
traditionally legitimized representatives of their ethnic, religious and
other constituent communities. These are the conditions under which Iraq
can be placed under United Nations Trusteeship.
2. The United Nations Trusteeship System
What, if any restrictions apply if the United Nations Trusteeship System is to effectively provide for Iraq’s current and foreseeable stabilization, rebuilding and reconciliation needs?
The United Nations Charter, in its Chapters XII and XIII, sets out the objectives and conditions under which the UN Trusteeship System may be brought into play. It concerns “the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements.” Chapter XI, the “Declaration Regarding Non-Self-Governing Territories” (Articles 73 and 74), is applicable to “territories whose peoples have not yet attained a full measure of self-government”. Under both regimes, the main objective is to promote the well-being of these territories in the best interest of the inhabitants and by that to maintain international peace and security (Articles 73, 74 and 76). (7) Contrary to Chapter XI which concerns open-ended colonial-type situations, the United Nations Trusteeship System refers to “trust territories” whose inhabitants are to be lead to “self-government or independence” (Article 76 [b]). In the latter case, the realization of the goals lies no longer in the hands of the State ruling the non-self-governing territory concerned, but with an administering authority based on an international organisatory act.
This system follows the mandate system of the League of Nations. Therefore, the norm laying down the sphere of application first mentions “the territories now held under mandate” (Article 77  [a]). This is also an option for the territories “detached from enemy States as a result of the Second World War” (Article 77  [b]). And finally, territories can be placed under the system “voluntarily” by the “States responsible for their administration” (Article 77  [c]). In correspondence with Article 2 (1), the principle of sovereign equality of all members of the United Nations, Article 78 states that territories which have become members of the United Nations are excluded from the Trusteeship System.
The objectives of Article 76 are notably:
- the maintenance of international peace and security,
- the furtherance of political, economic, social and educational advancement of the inhabitants of the territories,
- the assurance of human rights and freedoms, and
- the equal treatment of all members of the United Nations and their citizens.
These objectives make the United Nations Trusteeship System look like the ideal case of a restriction of the right to self-determination. For these are exactly the conditions under which a restriction of the right to self-determination are seen to be justified. In addition to that, one might state that in accordance with the principle of proportionality this solution is only justified if there is no other measure constituting a less severe restriction of the right to self-determination. But the principle of proportionality is not relevant here: Any solution ensuring the peremptory norms of international law is permitted – provided, of course, that it is based on the free will of the people concerned.
Can the Iraqi people place Iraq under the United Nations Trusteeship System voluntarily? To answer this question, a closer examination of two norms is needed: Article 77 (1) (c) and Article 78.
Article 77 (1) (c) is about those territories
under Article 73 and 74, which were neither held under mandate since the
days of the League of Nations (like Cameroon, Togo, Transjordan etc.) (8),
nor detached from enemy States as a result of World War II (Somaliland).
Up to this day, however, this Article has never been used. In its
current state, Iraq is a non-self-governing State, because the Iraqi People
has lost and not yet re-attained self-governance to a full extent.
On the surface then, this means the Coalition could place Iraq under United
Nations Trusteeship. Yet, Iraq is still a member of the United
Nations, for which reason – according to Article 78 – proceeding under
Art. 77 (1) (c) seems to be inadmissible.
But Article 78 is not meant to be understood in a way which would forbid a member of the United Nations to place itself temporarily under UN Trusteeship. For the founding members of the United Nations, it must have been unthinkable that a UN member could ever come into a situation where it found its fundamental interests to be best served by seeking temporary refuge under this healing UN foam carpet.
Article 78 was introduced only to dispel the doubts of Syria and Lebanon who had been mandates of France but did not sign treaties to prolong this mandate in 1944/45. When they declared war on Germany in February 1945, they qualified for participation in the San Francisco Conference. Article 78 ensured that they could not be placed under United Nations Trusteeship. (10) Thus, it is inadmissible to place any member of the United Nations under Chapter XII and XIII of the UN Charter – at least, if it happens against its will. But the sovereign rights of any member of the United Nations remain supreme in as much as they cannot automatically be subordinated to international conventions. Accordingly, any UN member’s sovereign right to place itself, in the event, under trusteeship voluntarily, remains untouched under Article 78.
This leaves us with one last obstacle, which is to examine whether Article 77 (1) (c) is applicable to the case where a people decides to place itself under the United Nations Trusteeship System. The analysis of the founding process shows that this case was not discussed. (11) Therefore, we cannot draw the conclusion that the San Francisco Conference did not want such cases to be administered by the United Nations Trusteeship System. As mentioned above, it was nothing less than unthinkable in those days where every people of an existing or developing State was craving for self-determination. This does not make it any easier to arrive at a satisfactory interpretation.
A defendable solution might be found along the following lines: The State of Iraq is currently not able to exercise its functions. In their present non-self-governing conditions the Iraqi people find themselves to inhabit an occupied territory. As such, and in principle, Iraq comes under Chapter XII-XIII of the UN Charter. Although, for the reasons stated above, it would be inadmissible for the Coalition to place Iraq under United Nations Trusteeship, no legal obstacle is seen to stand in the way for the Iraqi people themselves, in the event, to do so voluntarily.
Finally, consideration should be given to
the fact that otherwise, there would be a second category of non-self-governing
territories which could not be placed under United Nations Trusteeship
for the promotion of the objectives of Article 76. So far no
indication has appeared which would justify the assumption that the authors
of the UN Charter ever intended or, had they thought of it, would not have
explicitly ruled out such a discrimination among members States.
Such a discrimination could hardly be justified and would appear to be
contradictory to the main objectives of the UN Charter.
First, the United Nations Trusteeship System
has no inherent restrictions which could stand in the way for Iraq to exercise
its sovereign rights to voluntarily and temporarily place itself under
UN Trusteeship according to Article 77 (1) (c).
Second, the right of the Iraqi people to self-determination allows for them to see to it that their legitimate representatives enter into negotiations with the United Nations with a view to conclude and bring into force such Trusteeship Agreements which effectively provide for Iraq’s stabilization, rebuilding and reconciliation with due consideration of the peremptory norms of the international law. (12)
* Research Community of Law (FR-HSG), University of St. Gallen (Switzerland). Since 2005: Kessler, Wassmer & Giacomini, attorneys-at-law, Schwyz (Switzerland), Patrick.Sutter@gmx.net (in word format: www.solami.com/opinion.doc)
1 For details see PATRICK SUTTER, Nation building: Stabilität durch Selbst- oder durch Fremdbestimmung?, in: Patrick Sutter (ed.), Selbstbestimmung und Recht, Festgabe für Rainer J. Schweizer zum 60. Geburtstag, Zurich 2003, 205, at 208-215.
2 See FELIX ERMACORA, Autonomie als innere Selbstbestimmung, Archiv für Völkerrecht 38 (2000), 285, at 290.
3 See CHRISTOPH GUSY, Selbstbestimmung im Wandel: Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat, Archiv für Völkerrecht 30 (1992), 385, at 399-401; ERMACORA, supra note 2, at 288 and 290-291. (www.un.org/documents/ga/res/25/ares25.htm ¦ www.solami.com/ARES2625.pdf).
4 GUSY, supra note 3, at 401-402. On the example of the Palestinian people see PATRICK SUTTER, Die Rolle der UNO und des Völkerrechts im Palästina-Konflikt: Ein Überblick, Jusletter 2 June 2003, at 29-30. See also art.47 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC Geneva, 12 August 1949 (www.icrc.org/ihl.nsf/WebCONVART?OpenView&Start=1&Count=150&Expand=4#4);
for the ICRC commentary to art.47, see www.icrc.org/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/c4712fe71392afe1c12563cd0042c34a?OpenDocument. In the case of Iraq, during March 2004, a citizens group reportedly collected some 1.7 mio signatures in support for the United Nations to organize a referendum on whether the conditional attachment of the Mosul Vilayet to Iraq in 1926 shall be made permanent or reversed (www.solami.com/petition.htm).
5 On this in detail see SUTTER, supra note 1, at 215-220. On the particular situation in Iraq see PATRICK SUTTER, Völkerrecht und Truppenrückzug aus dem Irak: Die Rechte und Pflichten einer Besetzungsmacht, Neue Zürcher Zeitung, 31 March 2004, at 9.
6 See on an integrative concept of comparative law SUTTER, supra note 1, at 226-238.
7 On the long history of the idea of a “sacred trust” see CHETLUR VENKATRAMANA LAKSHMI-NARAYAN, Analysis of the principles and system of international trusteeship in the Charter: A study of the origin, principles and application in international law, Thesis, University of Geneva 1951, at 11-22; DIETRICH RAUSCHNING, United Nations Trusteeship System, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Volume IV (2000), 1193, at 1193-1194.
8 For an overview see LAKSHMI-NARAYAN, supra note 7, at 86-102; DIETRICH RAUSCHNING on Art. 77 Rdnr. 3-14, in: Bruno Simma (ed.), Charta der Vereinten Nationen, Kommentar (1991); RAUSCHNING, supra note 7, at 1195-1196.
9 LAKSHMI-NARAYAN, supra note 7, at 103-108; RAUSCHNING, supra note 8, at Rdnr. 13; RAUSCHNING, supra note 7, at 1196-1197.
10 LAKSHMI-NARAYAN, supra note 7, at 86; DIETRICH RAUSCHNING on Art. 78 Rdnr. 1-3, in: Bruno Simma (ed.), Charta der Vereinten Nationen, Kommentar (1991).
11 See already Section B paragraph 3 of the Working Paper at the San Francisco Conference (LAKSHMI-NARAYAN, supra note 7, at 37) and its further evolution to the final version of Chapter XII and XIII of the UN Charter (LAKSHMI-NARAYAN, supra note 7, at 47-59).
12 The question of how a United Nations Trusteeship should be designed is not subject to this article. The key document on this question, however, is Resolution 24 of the General Assembly of 12 February 1946: www.solami.com/UNGA.htm#1946 ¦ www.solami.com/Sorbonne.html.