Windreader1--October 30, 2010
Once again it may be helpful to review the status of Iraq and Chapter VII as I am seeing more references in chats and rumors regarding the removal of Chapter VII. Some of the statements even indicate next week. Assessing the possibility of such action requires another examination of the legal ramifications of Chapter VII as well as the status of the outstanding resolutions still in force. YES, it is rather lengthy but this is not a ten words or less issue.
All procedures enacted by the Security Council are issued by passing a resolution. Not all resolutions are enacted under Chapter VII. If the resolution does not carry the statement “Acting under Chapter VII” then compliance by the country or entities involved is strictly voluntary. An example is UNAMI (United Nations Assistance Mission to Iraq). UNAMI was set up under a separate set of resolutions and the program was never enacted under Chapter VII.
Chapter VII is the legal enforcement arm of the Security Council in which the Security Council can enforce both military and economic actions i.e.: sanctions against a country. Once a resolution enacting Chapter VII has been approved all countries must comply with the terms of the resolution. A recent example are the resolutions that deal with N. Korea. The Security Council placed an embargo against any ships transporting nuclear materials to N. Korea. Countries now have the legal authority to stop a suspected ship on the high seas. Without the Chapter VII sanction such action could be considered as piracy. Another example is the immunity provided to the DFI. All countries holding any frozen assets or revenues that belong to Iraq are mandated to ensure that the funds are protected. The authorization provided by Chapter VII is the difference between what is a legal act vs. an illegal act.
Changes to legal sanctions set up under Chapter VII must follow established legal procedures. This is similar to a court action. Any “behind the scenes” agreement between a prosecuting attorney and a defense attorney must be submitted as a motion to the judge in open court. The judge would rule on the motion and the ruling then officially recorded. Any action by the Security Council affecting Chapter VII sanctions must follow a similar legal procedure. A draft resolution will be written and will be assigned its own tracking number. Even the draft resolutions become public record. The format of the resolution must follow precise legal guidelines. All prior resolutions dealing with the sanction will be listed first under the phrase “recalling all previous resolutions”. This does not mean that all the previous resolutions are canceled. It is a legal link. In other words, the previous resolutions listed provide the Security Council the legal right to enact a change under the Chapter VII section of the resolution. The draft resolution is then submitted to the Security Council for a formal vote. The vote must take place in the Security Council Chambers and be officially recorded. If the resolution passes, then a new number is assigned to the approved resolution. Please keep in mind this is an extremely complex legal process. Chapter VII sanctions affect the legal rights of the country involved.
Resolution 1859 (2008) stipulated a review of all existing resolutions. It states “Decides to review resolutions pertaining specifically to Iraq, beginning with the adoption of resolution 661 (1990), and in that regard requests the Secretary-General to report, after consultations with Iraq, on facts relevant to consideration by the Council of actions necessary for Iraq to achieve international standing equal to that which it held prior to the adoption of such resolutions;” The review is crucial to identify the legal procedures still in effect and what Iraq must complete to return to international status. I believe over 70 resolutions have been adopted since 1990 with multiple legal procedures or sanctions enacted. Consider the review as being similar to a title search when purchasing a property. The 2008 resolution review process was not addressed in 2009. Resolution 1905 (2009) dealt only with procedural changes to the administration of the Development Fund for Iraq (DFI).
So having said all that exactly what is still outstanding. The first resolution is 661 (1990) which stated the whole process. Resolution 1859 is still outstanding as it ordered the review. The arms embargo was set up under Resolution 687 (1991) and 707 (1991). This is extremely important and involves the International Atomic Energy Agency. Iraq has been required to take two steps to complete the requirements from the IAEA and the Security Council. They are the ratification of the Additional Protocol and the signing of the Hague Code of Conduct.
All countries are required to ratify an Additional Protocol implemented by the IAEA. Iraq has submitted the paperwork establishing a provisional implementation of the Additional Protocol. However, it is not in force until Parliament ratifies or votes on the issue. This is a quote from Resolution 1936 (UNAMI) issued on Aug 5, 2010. “Recognizing the importance of Iraq achieving international standing equal to that which it held prior to the adoption of resolution 661 (1990), welcoming Iraq’s application of the Additional Protocol provisionally pending ratification and reaffirming the importance of the ratification by Iraq as soon as possible, welcoming also the intention of the Government of Iraq to sign the Hague Code of Conduct against Ballistic Missile Proliferation, and calling on the Government of Iraq to take all other necessary steps to meet its outstanding obligations, including to work with due haste and diligence to close the Oil for Food program;”. Effective August 11, 2010 Iraq signed the Hague Code of Conduct. However, the Additional Protocol cannot be voted on until there is a new government. The Security Council has stated in numerous publications that this is a requirement for the removal of Chapter VII. Iraq formally requested the removal of Chapter VII based on the provisional implementation but to date the Security Council has not indicated that is sufficient.
The remaining resolutions are Resolution 883 (1993) Iraq-Kuwait Boundary, Resolution 1284 (1999) Missing Kuwaiti and third-country nationals and the repatriation of Kuwaiti property and Resolution 1483 (2003) and 1905 (2009) Development Fund for Iraq. What can be said about the issues regarding Kuwait other than they continue to defy logic and reason. Iraq has repeatedly failed to follow the directives of the Secretary General and the Security Council. Kuwait blows hot and cold. News articles continually contradict each other as to the agreements with Kuwait. The Secretary General, however, has reinforced the fact that these issues must be resolved in almost every report that has been issued. Suffice it to say continued delays could affect the removal of Chapter VII.
That leaves the last resolutions 1483 (2003) and 1905 (2009) dealing with the DFI. This is where it really gets interesting. Iraq requested the 2009 resolution which extended the immunity for the funds in the DFI account for another year. Additionally for the first time it referenced the IMF. “Calls upon the Government of Iraq to put in place the necessary action plan and timeline by 1 April 2010 and to ensure the timely and effective transition to a post-Development Fund mechanism by 31 December 2010, which takes into account IMF Stand-By Arrangement requirements and includes external auditing arrangements and enables Iraq to meet its obligations as established in the provisions of paragraph 21 of resolution 1483 (2003);” This was passed in December 2009. In February 2010, the IMF approved a two year standby arrangement of approximately $3.64 billion (USD). To date, Iraq has received two payments totally approximately $1.204 billion (USD). The fact that the standby arrangement was included would ensure that the immunity is extended to the IMF loan.
The immunity continues to be a major concern. This is an excerpt from the second quarterly report from Iraq. “CBI got the approval of FRBNY regarding the CBI accounts to be opened with it through a letter from the president of FRBNY (attachment 1) sent to the Governor of CBI on 19 May 2010. As for the completion of the efforts of the Government of Iraq to determine the available protection for CBI reserves and the Government’s fund, according to the jurisdiction of the States with which Iraq is planning to open accounts, and the contacts made by the Iraqi authorities either with FRBNY or other banks, the protection provided is not up to the immunities provided by a Security Council resolution under Chapter VII of the Charter of the United Nations. The Government of Iraq will continue its efforts to take the appropriate decision after further contacts with the relevant authorities. The Government of Iraq can determine its position in this regard in its next quarterly report, in the light of contacts with the banks and the agreements reached in regard to the claims inherited from the previous regime.” Iraq has also stated they may request another extension of the immunity. The immunity cannot be extended unless it is enacted under Chapter VII.
Other unresolved issues that are still being monitored by the Security Council are the oil metering system, the status of the Paris Club debts and agreements with countries outside the Paris Club and the Oil for Food Program. The oil metering system has been of concern to the Secretary General and the Security Council as this affects the oil revenues. As of the last meeting between the IAMB and COFE, (Oct 14-15) the oil metering system is 25% behind the scheduled target dates. Per the minutes of an Oct 5th COFE meeting the next report is due to the Security Council on November 10, 2010. According to the minutes the above DFI issues will be addressed in that report. When the Security Council November schedule is posted next week, there should be a scheduled meeting.
This brings me back to the original question. Is the removal of Chapter VII imminent? I don’t believe it is. Many individuals are looking at Resolution 1905 expiring in December and thinking that once it expires that Chapter VII goes away. That is just not the case. Keep in mind that all these issues must have legal closure. Resolution 1859 (2008) can continue in force just as it has in 2009 and 2010. The Security Council does not have to take any action. The question then becomes is the Security Council ready to move on that legal closure on all the outstanding issues? Additionally, here is a food-for-thought question. Can the Security Council take a chance on removing Chapter VII considering the lack of a stable Iraqi government and the ties to Iran? It will be very interesting to see what does transpire with the Security Council as the Presidency for November is the United Kingdom and December is the United States. The next reports will be important as they may provide a better indication of how close Iraq may be to the removal of Chapter VII.
Once again it may be helpful to review the status of Iraq and Chapter VII as I am seeing more references in chats and rumors regarding the removal of Chapter VII. Some of the statements even indicate next week. Assessing the possibility of such action requires another examination of the legal ramifications of Chapter VII as well as the status of the outstanding resolutions still in force. YES, it is rather lengthy but this is not a ten words or less issue.
All procedures enacted by the Security Council are issued by passing a resolution. Not all resolutions are enacted under Chapter VII. If the resolution does not carry the statement “Acting under Chapter VII” then compliance by the country or entities involved is strictly voluntary. An example is UNAMI (United Nations Assistance Mission to Iraq). UNAMI was set up under a separate set of resolutions and the program was never enacted under Chapter VII.
Chapter VII is the legal enforcement arm of the Security Council in which the Security Council can enforce both military and economic actions i.e.: sanctions against a country. Once a resolution enacting Chapter VII has been approved all countries must comply with the terms of the resolution. A recent example are the resolutions that deal with N. Korea. The Security Council placed an embargo against any ships transporting nuclear materials to N. Korea. Countries now have the legal authority to stop a suspected ship on the high seas. Without the Chapter VII sanction such action could be considered as piracy. Another example is the immunity provided to the DFI. All countries holding any frozen assets or revenues that belong to Iraq are mandated to ensure that the funds are protected. The authorization provided by Chapter VII is the difference between what is a legal act vs. an illegal act.
Changes to legal sanctions set up under Chapter VII must follow established legal procedures. This is similar to a court action. Any “behind the scenes” agreement between a prosecuting attorney and a defense attorney must be submitted as a motion to the judge in open court. The judge would rule on the motion and the ruling then officially recorded. Any action by the Security Council affecting Chapter VII sanctions must follow a similar legal procedure. A draft resolution will be written and will be assigned its own tracking number. Even the draft resolutions become public record. The format of the resolution must follow precise legal guidelines. All prior resolutions dealing with the sanction will be listed first under the phrase “recalling all previous resolutions”. This does not mean that all the previous resolutions are canceled. It is a legal link. In other words, the previous resolutions listed provide the Security Council the legal right to enact a change under the Chapter VII section of the resolution. The draft resolution is then submitted to the Security Council for a formal vote. The vote must take place in the Security Council Chambers and be officially recorded. If the resolution passes, then a new number is assigned to the approved resolution. Please keep in mind this is an extremely complex legal process. Chapter VII sanctions affect the legal rights of the country involved.
Resolution 1859 (2008) stipulated a review of all existing resolutions. It states “Decides to review resolutions pertaining specifically to Iraq, beginning with the adoption of resolution 661 (1990), and in that regard requests the Secretary-General to report, after consultations with Iraq, on facts relevant to consideration by the Council of actions necessary for Iraq to achieve international standing equal to that which it held prior to the adoption of such resolutions;” The review is crucial to identify the legal procedures still in effect and what Iraq must complete to return to international status. I believe over 70 resolutions have been adopted since 1990 with multiple legal procedures or sanctions enacted. Consider the review as being similar to a title search when purchasing a property. The 2008 resolution review process was not addressed in 2009. Resolution 1905 (2009) dealt only with procedural changes to the administration of the Development Fund for Iraq (DFI).
So having said all that exactly what is still outstanding. The first resolution is 661 (1990) which stated the whole process. Resolution 1859 is still outstanding as it ordered the review. The arms embargo was set up under Resolution 687 (1991) and 707 (1991). This is extremely important and involves the International Atomic Energy Agency. Iraq has been required to take two steps to complete the requirements from the IAEA and the Security Council. They are the ratification of the Additional Protocol and the signing of the Hague Code of Conduct.
All countries are required to ratify an Additional Protocol implemented by the IAEA. Iraq has submitted the paperwork establishing a provisional implementation of the Additional Protocol. However, it is not in force until Parliament ratifies or votes on the issue. This is a quote from Resolution 1936 (UNAMI) issued on Aug 5, 2010. “Recognizing the importance of Iraq achieving international standing equal to that which it held prior to the adoption of resolution 661 (1990), welcoming Iraq’s application of the Additional Protocol provisionally pending ratification and reaffirming the importance of the ratification by Iraq as soon as possible, welcoming also the intention of the Government of Iraq to sign the Hague Code of Conduct against Ballistic Missile Proliferation, and calling on the Government of Iraq to take all other necessary steps to meet its outstanding obligations, including to work with due haste and diligence to close the Oil for Food program;”. Effective August 11, 2010 Iraq signed the Hague Code of Conduct. However, the Additional Protocol cannot be voted on until there is a new government. The Security Council has stated in numerous publications that this is a requirement for the removal of Chapter VII. Iraq formally requested the removal of Chapter VII based on the provisional implementation but to date the Security Council has not indicated that is sufficient.
The remaining resolutions are Resolution 883 (1993) Iraq-Kuwait Boundary, Resolution 1284 (1999) Missing Kuwaiti and third-country nationals and the repatriation of Kuwaiti property and Resolution 1483 (2003) and 1905 (2009) Development Fund for Iraq. What can be said about the issues regarding Kuwait other than they continue to defy logic and reason. Iraq has repeatedly failed to follow the directives of the Secretary General and the Security Council. Kuwait blows hot and cold. News articles continually contradict each other as to the agreements with Kuwait. The Secretary General, however, has reinforced the fact that these issues must be resolved in almost every report that has been issued. Suffice it to say continued delays could affect the removal of Chapter VII.
That leaves the last resolutions 1483 (2003) and 1905 (2009) dealing with the DFI. This is where it really gets interesting. Iraq requested the 2009 resolution which extended the immunity for the funds in the DFI account for another year. Additionally for the first time it referenced the IMF. “Calls upon the Government of Iraq to put in place the necessary action plan and timeline by 1 April 2010 and to ensure the timely and effective transition to a post-Development Fund mechanism by 31 December 2010, which takes into account IMF Stand-By Arrangement requirements and includes external auditing arrangements and enables Iraq to meet its obligations as established in the provisions of paragraph 21 of resolution 1483 (2003);” This was passed in December 2009. In February 2010, the IMF approved a two year standby arrangement of approximately $3.64 billion (USD). To date, Iraq has received two payments totally approximately $1.204 billion (USD). The fact that the standby arrangement was included would ensure that the immunity is extended to the IMF loan.
The immunity continues to be a major concern. This is an excerpt from the second quarterly report from Iraq. “CBI got the approval of FRBNY regarding the CBI accounts to be opened with it through a letter from the president of FRBNY (attachment 1) sent to the Governor of CBI on 19 May 2010. As for the completion of the efforts of the Government of Iraq to determine the available protection for CBI reserves and the Government’s fund, according to the jurisdiction of the States with which Iraq is planning to open accounts, and the contacts made by the Iraqi authorities either with FRBNY or other banks, the protection provided is not up to the immunities provided by a Security Council resolution under Chapter VII of the Charter of the United Nations. The Government of Iraq will continue its efforts to take the appropriate decision after further contacts with the relevant authorities. The Government of Iraq can determine its position in this regard in its next quarterly report, in the light of contacts with the banks and the agreements reached in regard to the claims inherited from the previous regime.” Iraq has also stated they may request another extension of the immunity. The immunity cannot be extended unless it is enacted under Chapter VII.
Other unresolved issues that are still being monitored by the Security Council are the oil metering system, the status of the Paris Club debts and agreements with countries outside the Paris Club and the Oil for Food Program. The oil metering system has been of concern to the Secretary General and the Security Council as this affects the oil revenues. As of the last meeting between the IAMB and COFE, (Oct 14-15) the oil metering system is 25% behind the scheduled target dates. Per the minutes of an Oct 5th COFE meeting the next report is due to the Security Council on November 10, 2010. According to the minutes the above DFI issues will be addressed in that report. When the Security Council November schedule is posted next week, there should be a scheduled meeting.
This brings me back to the original question. Is the removal of Chapter VII imminent? I don’t believe it is. Many individuals are looking at Resolution 1905 expiring in December and thinking that once it expires that Chapter VII goes away. That is just not the case. Keep in mind that all these issues must have legal closure. Resolution 1859 (2008) can continue in force just as it has in 2009 and 2010. The Security Council does not have to take any action. The question then becomes is the Security Council ready to move on that legal closure on all the outstanding issues? Additionally, here is a food-for-thought question. Can the Security Council take a chance on removing Chapter VII considering the lack of a stable Iraqi government and the ties to Iran? It will be very interesting to see what does transpire with the Security Council as the Presidency for November is the United Kingdom and December is the United States. The next reports will be important as they may provide a better indication of how close Iraq may be to the removal of Chapter VII.