Newsgroup: it.politica.internazionale
Titolo: Permanenza delle truppe USA in Iraq. Problemi legali

http://www.asil.org/insights/insigh135.htm
 (art. completo di note, qui
eliminate).
Legality of a Request by the Interim Iraqi Government for the Continued
Presence of United States Military Forces
By Christopher J. Le Mon
June 2004
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            According to United Nations Security Council Resolution 1511,
the Coalition Provisional Authority (CPA), the recognized occupying power in
Iraq, will dissolve on June 30, and an interim Iraqi government will begin
to exercise Iraqi sovereignty. The United States, however, has repeatedly
stated that its troops will remain in Iraq after the handover, pursuant to
an expected request by the Iraqi government.  Given the questions
surrounding the legitimacy of any Iraqi government, what would be the legal
status of such a request?
            Intervention by invitation essentially involves the consent by
an inviting state to justify action that would, absent such consent, violate
the U.N. Charter's prohibition on the use of force.  Only where the inviting
government is recognized as embodying the sovereign rights of the state will
an invitation therefrom provide a legal basis, in and of itself, for
military action according to the terms of the invitation.
            On June 30, the sovereignty exercised by the interim Iraqi
government will not be complete in the Westphalian sense, since the
government will not, at the time of its creation, effectively control the
territory of Iraq.  In the era prior to the adoption of the U.N. Charter,
the degree of territorial control would have determined the legality of any
invitation issuing from a government.  This determination, made by what were
called the "standards of belligerency," was a corollary to the "effective
control test," by which governmental recognition depends on territorial
control.  By operation of these standards, a government that controlled the
vast majority of its territory, though fighting a rebellion, could legally
invite outside intervention, while one that faced an established
insurrection could not.  Instead, a "revolutionary government which
[wielded] effective power, with a reasonable prospect of permanency, over
the whole-or practically the whole-territory of the State [was] entitled to
recognition."
            Since the adoption of the Charter, however, in situations
involving civil wars-where governmental legitimacy is most challenged-the
government representing the state at the United Nations has been deemed to
possess sufficient external legitimacy to legally invite foreign military
intervention.  This construction may be inferred from the judgment of the
International Court of Justice in its well-known Military and Paramilitary
Activities case, where the Court distinguished between permissible
intervention at the request of the U.N.-recognized government and
impermissible intervention at the request of the opposition in a situation
of struggle for control of the country.   Perhaps recognizing this, Security
Council Resolution 1511 referred to the exercise of Iraq's sovereignty,
determining that the Iraqi Governing Council "embodies the sovereignty of
the State of Iraq during the transitional period until an internationally
recognized, representative government is established and assumes the
responsibilities of the [Coalition Provisional] Authority."  Now that the
Iraqi Governing Council has itself dissolved, there is a gap in bodies
capable of exercising Iraqi sovereignty.
            The Security Council is currently considering a new resolution
on the authority of the interim Iraqi government that will begin to function
on June 30.  If the resolution explicitly decides that the interim Iraqi
government exercises the sovereignty of the state of Iraq, it would
authoritatively impart external legitimacy upon that government.  Under
Article 25 of the Charter, members of the U.N. are required to accept and
implement all decisions (as distinguished from recommendations) of the
Security Council; accordingly, a state refusing to recognize the Iraqi
government would be in violation of its Charter obligations.  Since the
interim Iraqi government would be recognized as a matter of law, the
legality of its invitation to the United States would be established as
well.  Additionally, should such government request the departure of foreign
troops, noncompliance by the United States would (unless authorized by the
Security Council) constitute an illegal use of force, since it would
contravene the request of the recognized government of Iraq.
            If the Security Council, acting under Chapter VII of the
Charter, authorizes the continued presence of foreign forces in Iraq, an
objection by the interim Iraqi government to their continued presence would
be insufficient to defeat the legality of such authorization.  Indeed,
measures involving the use of force, which the Council can authorize under
Chapter VII, are needed precisely in those instances where a government
refuses to voluntarily abide by decisions of the Security Council.  It
remains to be seen whether Chapter VII  will be the preferred means of legal
authorization for the continued military presence of the United States and
its allies after June 30.  It would not provide as sharp a contrast with the
military occupation before June 30 as would an invitation by the interim
Iraqi government.  A Chapter VII operation, however, could immunize U.S. and
other foreign personnel from the jurisdiction of the International Criminal
Court, if the Security Council renews its annual requests that the ICC
refrain from investigating or prosecuting individuals for acts or omissions
relating to an operation established or authorized by the United Nations.

would contravene the request of the recognized government of Iraq.
Vero.
-Stefano

 Non ci sono piu' imperi, regni et similia.
L'imperatore del Giappone e la regina d'Inghilterra ringranziano :D
Pangloss
-- 
"Too Old to Rock'n'Roll, Too Young to Die"
Ian Anderson

L'imperatore del Giappone e la regina d'Inghilterra ringranziano :D
Esiste ancora l'Impero Nipponico o il Regno d'Inghilterra?
-Stefano