Fox: Constitutional Violations and the Validity of Treaties: Will Iraq Give Lawful Consent to a Status of Forces Agreement?

Gregory H. Fox (Wayne State Univ. - Law) has posted Constitutional Violations and the Validity of Treaties: Will Iraq Give Lawful Consent to a Status of Forces Agreement? Here's the abstract:

The United States and Iraq are about to conclude a Status of Forces Agreement (SOFA) designed to replace UN Security Council resolutions as the legal basis for a continued U.S. troop presence in Iraq. But it appears the Iraqi Prime Minister and the Iraqi Parliament are divided on the desirability of a SOFA, the former favoring the agreement and the latter opposing it. Because the United States has pushed very hard to complete an agreement, one possible scenario is that the Iraqi Parliament will refuse to ratify the SOFA. What would happen if the Iraqi Prime Minister nonetheless signed the agreement, representing that his signature was sufficient to bind the state of Iraq?

Few dispute that such an act would violate the 2005 Iraqi constitution, which requires parliamentary approval of all treaties. This article inquires into the international legal effect of such a national law violation. It concludes that under Article 46 of the Vienna Convention on the Law of Treaties, the SOFA would be voidable at the discretion of future Iraqi governments. Three arguments support this conclusion.

First, the 2005 Iraqi constitution clearly requires Parliamentary approval of treaties. The United States has been acutely aware of this requirement throughout the negotiations, and for it to claim that a SOFA lacking parliamentary approval was nonetheless valid would be an act of blatant bad faith. The U.S. made the new Iraqi constitution possible by deposing the Saddam regime, set the constitutional drafting process in motion during its control of the country from May 2003 to June 2004 and was intimately involved in the drafting process itself. The international law of treaties allows such "manifest" violations of national law to serve as a basis for voiding treaties.

Second, one of the reasons international law has taken account of national law violations in assent to treaties is to support the democratic institutions involved in treaty ratification. To affirm a treaty assented to in violation of separation of powers principles would be to abet the degradation of those principles. Democracy promotion has emerged as an important international goal since the end of the Cold War, giving new life to this aspect of treaty law. That goal has particular resonance for a U.S.-Iraqi agreement. The United States has made democracy promotion its central justification for the 2003 invasion and has spent countless dollars and political capital creating functional democratic institutions in the country. For the U.S. to claim the benefit of an agreement defying those institutions' doctrinal core - the constitution - would also be an act of extraordinary bad faith.

Third, the profound implications of a SOFA for the Iraqi people require input from their elected representatives. Under current Security Council authorization, Iraq may demand the U.S. troops leave at any time. Under a SOFA withdrawal may be substantially more difficult and, at a minimum, take much more time. In addition, the SOFA's likely provision of immunity to U.S. troops (and potentially private contractors) from the jurisdiction of Iraqi courts may, in reality, mean complete impunity. Iraqi victims will bear the consequences of such a lack of accountability. Both these issues involve difficult political decisions. The Iraqi Parliament, elected on the understanding that it would pass judgment on all treaties, should not be excluded from these decisions with the stakes this high.