Statement of Professor Michael J

Statement of Professor Michael J. Matheson,

George Washington University Law School

Before the House Committee on Foreign Affairs,

Subcommittee on International Organizations, Human Rights and Oversight,

and Subcommittee on the Middle East and South Asia

January 23, 2008

U.S. Security Commitments to Iraq

I have been asked to give my thoughts on the proposed “security assurances and commitments” that are referred to in the Declaration of Principles concluded by the U.S. and Iraqi governments on November 26, 2007. [1] I would also like to mention a few other issues concerning the future legal status and obligations of Iraq that are raised by the Declaration, based on my experience in dealing with such matters as a career attorney in the Office of the Legal Adviser in the U.S. State Department. [2]

Security Commitments

The Declaration calls for bilateral negotiations to achieve a series of agreements between the two countries by July 2008 for the purpose of enhancing cooperation in the political, economic, cultural and security fields. According to the Declaration, this new relationship will take account of a number of principles, including “providing security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace.”

The question of what constitutes a “security commitment” to another country and what form such a commitment should take has been the subject of dialogue between the Executive branch and Congress for decades. In 1969, the Senate adopted the National Commitments Resolution, [3] which asserted that any “promise to assist” a foreign country “by the use of Armed Forces” would be a “national commitment” that could only be given by means of a treaty, statute or concurrent resolution.

The National Defense Authorization Act for Fiscal Year 1991 included a provision requiring the President to submit a report to Congress describing all existing “security arrangements with, or commitments to” other countries. [4] In 1992, President George H.W. Bush submitted a report listing current U.S. security commitments and arrangements. [5] He defined a “security commitment” as “an obligation, binding under international law, of the United States to act in the common defense in the event of an armed attack on that country.” He provided a list of current U.S. security commitments, almost all of which were contained in treaties concluded between 1947 and 1960, including the North Atlantic Treaty, the Rio Treaty (with Latin American countries), the Southeast Asia Treaty, and treaties with Australia, New Zealand, the Philippines, South Korea and Japan. [6]

The provisions of these treaties vary somewhat, but each contains language that contemplates the possibility of U.S. armed action in the event of armed attack against one of the treaty parties. For example, Article 5 of the 1949 North Atlantic Treaty says that the Parties agree “that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense . . . , will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.” [7] Article V of the 1960 Treaty of Mutual Cooperation and Security between Japan and the United States says that each Party “recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” [8]

The 1992 Presidential report contrasted such security commitments with “security arrangements” – that is, pledges by the United States to take some action in the event of a threat to the other country’s security, typically to consult with that country – but containing no commitment with respect to the use of U.S. Armed Forces. It listed a number of such arrangements, including those with Israel, Egypt and Pakistan. For example, it cited the 1975 Memorandum of Agreement with Israel, which stated that in the event of a threat to Israel’s security or sovereignty, the U.S. would “consult promptly with the Government of Israel with respect to what support, diplomatic or otherwise, or assistance it can lend in accordance with its constitutional practices.” [9] Pledges of this sort have also been called “security assurances”.

In addition to such “security commitments” and “security assurances”, there are a variety of other steps that the United States might take to enhance the security of a friendly country, including providing military assistance, sales of military items and technology, and stationing U.S. forces. Some or all of these steps may be taken in conjunction with security commitments or assurances.

It is not clear from the text of the U.S-Iraq Declaration of Principles which of these various steps the Bush Administration contemplates taking during the next year. The Declaration refers to “security assurances and commitments”, but it is not at all clear whether these terms were used in the technical sense described above, and in particular, whether the Administration actually has in mind promising that U.S. forces would be used to counter any armed attack against Iraq. It may well be that, in the end, the Administration will limit itself to a promise of consultation or other steps that would not constitute “security commitments” in the way that term has historically been used.

Form of Commitments

From the point of view of the U.S. Constitutional system, there are essentially three types of international agreements. First are treaties which enter into force after the Senate has given its advice and consent. Second are agreements authorized or approved by act of Congress. Third are agreements based solely on the Constitutional authority of the President as Chief Executive, as Commander-in-Chief, or in exercise of his foreign policy functions; these are sometimes called “sole executive agreements”.

The Constitution does not give clear guidance as to what form must be used for what type of obligations or commitments. Instead, the two branches are guided by historical practice and, hopefully, a sense of cooperation and mutual recognition by each of the proper role of the other branch in foreign affairs. The long-standing regulations of the State Department (usually referred to as the “Circular 175 Procedure”) set out a list of factors that should be considered in determining which of these alternatives to use in a particular case:

(1) The extent to which the agreement involves commitments or risks affecting the nation as a whole;

(2) Whether the agreement is intended to affect state laws;

(3) Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;

(4) Past U.S. practice as to similar agreements;

(5) The preference of the Congress as to a particular type of agreement;

(6) The degree of formality desired for an agreement;

(7) The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and

(8) The general international practice as to similar agreements. [10]

The regulations provide that where there is any question as to what procedure to follow, the matter is to be referred to the Legal Adviser’s Office of the State Department and other concerned bureaus and, if unresolved, to be referred to the Secretary of State for a decision. The regulations say that consultations on such a question “will be held with congressional leaders and committees as may be appropriate”; [11] and that “the appropriate congressional leaders and committees” are to be “advised of the intention to negotiate significant new international agreements, consulted concerning such agreements, and kept informed of developments affecting them, especially whether any legislation is considered necessary or desirable for the implementation of the new treaty or agreement.” [12]

With respect to security commitments and assurances, the history described above gives useful guidance as to the form these commitments or assurances should take. Security commitments in the technical sense have generally been undertaken by treaty, or at a minimum by act of Congress. [13] Certainly a binding commitment to use armed force in defense of Iraq would call for such action. On the other hand, properly limited security assurances – such as a simple promise to consult – have taken various forms, including sole executive agreements and policy statements, and the President could offer them on the basis of his own Constitutional authority.

Other types of commitments would have to be evaluated within the context of any relevant existing legislation, which might or might not require further Congressional action, depending on the content of the commitments and the applicable statutory restrictions. For example, particular attention would have to be paid to any commitments of U.S. funds, any commitments to provide military assistance or arms sales, any forgiveness of obligations to the United States, and any immunities or exceptions from the application of U.S. law.

But even if a proposed commitment falls within the President’s independent Constitutional authority, this does not mean that Congress should play no role in extending such commitments to Iraq. Given the obvious importance of the future U.S.-Iraq relationship and in particular the role of U.S. forces in the future security of Iraq, it would seem at a minimum that the Administration should engage in serious consultation with Congress on both the form and substance of the agreements that will implement the U.S.-Iraq Declaration of Principles. Hopefully that consultation would produce a reasonable degree of consensus on the type of commitments the United States should offer and the manner in which Congress will be involved in their conclusion.

Future Legal Status of Iraq

I would also like to comment on some aspects of the Declaration of Principles that relate to the future legal status of Iraq. The Declaration says that, after a one-year extension of the mandate of the current multinational force, “Iraq’s status under Chapter VII and its designation as a threat to international peace and security will end, and Iraq will return to the legal and international standing it enjoyed prior to the issuance of U.N. Security Council Resolution No. 661 (August, 1990) . . . .” Iraq has, of course, been subject to a complex system of Security Council resolutions issued after August 1990 under Chapter VII of the UN Charter. While the goal of returning Iraq to normal status as a sovereign nation is worthwhile, I suggest that care be taken not to eliminate any parts of the current Chapter VII regime that might still be in U.S. interests.

For example, Security Council resolutions provide for a continuing deduction of 5% of Iraqi oil export revenues to pay compensation awarded by the UN Compensation Commission to those suffering loss from the Iraqi invasion and occupation of Kuwait (including American claimants). [14] Since considerable amounts remain yet to be paid, the question arises as to whether it would be appropriate to effectively end this process now.

Likewise, Security Council resolutions continue to impose constraints on the acquisition and possession by Iraq of various items related to its previous military programs, including biological, chemical and nuclear materials and long-range missile systems. [15] Iraq has treaty commitments not to acquire some of these items, but not others, and could in the future withdraw from such treaty commitments. Therefore the question arises as to whether the United States would be satisfied to end the more rigorous UN requirements at this time.

Further, the Security Council has guaranteed the boundary demarcation between Iraq and Kuwait that was completed under UN auspices after the 1990-91 Gulf War. [16] Maintaining the integrity of this boundary continues to be important, and so the question arises as to whether the Council’s guarantee should be terminated.

It is unclear whether the Bush Administration actually intends to dispense with these aspects of the UN regime, but in light of the language of the Declaration of Principles, each of these questions merits attention and a considered policy decision, so as not to result in unintended consequences.

[2] I served in the Legal Adviser’s Office for 28 years, retiring in 2000 as the Department’s Acting Legal Adviser. Since then, I have taught international law at the George Washington University Law School and at the Johns Hopkins School of Advanced International Studies. I have also served as the American member of the UN International Law Commission.

[3] S.Res. 85, 91^st Cong., 1^st Sess., June 25, 1969.

[4] Sec. 1457, P.L. 101-510; codified in 50 USC 404c.

[5] See Treaties and Other International Agreements: the Role of the United States Senate, a study prepared for the Senate Foreign Relations Committee by the Congressional Research Service, 103d Cong., 1^st Sess., November 1993, p. 206-07.

[6] The State Department also maintains a list of “U.S. Collective Defense Arrangements”, consisting of these treaties. See www.state.gov/s/l/treaty/collectivedefense.

[7] April 4, 1949; 63 Stat. 2241; TIAS 1964; 34 UNTS 243.

[8] June 23, 1960; 11 UST 1652; TIAS 4510; 373 UNTS 186.

[9] September 1, 1975; 32 UST 2150; TIAS 9828.

[13] Apparently security commitments were given to the Marshall Islands and Micronesia under Compacts of Free Association approved by Congress. See note 4 above at p. 206.

[15] See, e.g., UNSC Res. 687 (1991), 1483 (2003). In Resolution 1762 (2007), the Council terminated the mandate of the UN Monitoring, Verification and Inspection Commission (UNMOVIC) and the IAEA with respect to overseeing compliance by Iraq, but reaffirmed the applicability of these constraints.