Научная статья на тему 'PROBING IRAQ STATE SINCE 2003 THROUGH INTERNATIONAL LAW: IS IT ABSENT SOVEREIGNTY OR SEMI-SOVEREIGNTY?'

PROBING IRAQ STATE SINCE 2003 THROUGH INTERNATIONAL LAW: IS IT ABSENT SOVEREIGNTY OR SEMI-SOVEREIGNTY? Текст научной статьи по специальности «Политологические науки»

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sovereignty / invasion / opaques / oscillating

Аннотация научной статьи по политологическим наукам, автор научной работы — Sultan Abdullah Albokashy, Hasani Mohd Ali, Shahrul Mizan Bin Ismail

During the wave of movements to end colonialism in the 20th century, the League of Nations was the first to recognise Iraq as a legal sovereign state. It also became a place where early development laboratory projects for examining sovereignty. In light of this regard, this article suggests to probe Iraq sovereignty from the prospective of International Law. In order to accomplish this, I begin by analysing the deviation of sovereignty meaning specially after U.S.A invasion of Iraq. The analysing also included Iraqi sovereignty and the multinational corporations and the accidents that these companies were committed. The study adopted a descriptive and content analysis as an effective approach. The results indicated that Iraqi sovereignty is still oscillating from its existing in reality and its absence. The Iraq law system also lack to law frames that could delineate the international investment in Iraq. The international law is influenced by opaques in dealing with Iraq as a special case of sovereignty.

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Текст научной работы на тему «PROBING IRAQ STATE SINCE 2003 THROUGH INTERNATIONAL LAW: IS IT ABSENT SOVEREIGNTY OR SEMI-SOVEREIGNTY?»

RUSSIAN LAW JOURNAL Volume XI (2023) Issue 3

PROBING IRAQ STATE SINCE 2003 THROUGH INTERNATIONAL LAW: IS IT ABSENT SOVEREIGNTY OR SEMI-SOVEREIGNTY?

1 SULTAN ABDULLAH ALBOKASHY *, 2 HASANI MOHD ALI *, 3 SHAHRUL MIZAN BIN ISMAIL

1 albokashysultan@gmail.com ORCID : 0000-0002-7633-0175,

2 hmohdali@ukm.edu.my ORCID : 0000-0001- 7015-0635, 3 shahrulmizan@ukm.edu.my ORCID : 0000-0001-8892-1549.

1,2,3

Faculty of Law, National University of Malaysia.

Abstract

During the wave of movements to end colonialism in the 20th century, the League of Nations was the first to recognise Iraq as a legal sovereign state. It also became a place where early development laboratory projects for examining sovereignty. In light of this regard, this article suggests to probe Iraq sovereignty from the prospective of International Law. In order to accomplish this, I begin by analysing the deviation of sovereignty meaning specially after U.S.A invasion of Iraq. The analysing also included Iraqi sovereignty and the multinational corporations and the accidents that these companies were committed. The study adopted a descriptive and content analysis as an effective approach. The results indicated that Iraqi sovereignty is still oscillating from its existing in reality and its absence. The Iraq law system also lack to law frames that could delineate the international investment in Iraq. The international law is influenced by opaques in dealing with Iraq as a special case of sovereignty.

Keywords: sovereignty, invasion, opaques, oscillating

1.0 INTRODUCTION

Iraq has become a living laboratory for the study of sovereignty during the past few decades. Because of the nature of the events that have transpired in Iraq, it is important to recognise that country as a special instance. The sovereignty of Iraq has been undermined, and this is due to a number of different factors. The fact that this country was occupied by other countries is among the most significant of these factors. A new domestic regime was put in place. The assistance of the invading forces was essential in the establishment of the new authority. There were also crucial events that took place in the decades that came before this one: for more than a decade, various ethnic and sectarian factions dominated different sections of Iraq.

Iraq, with all its peculiarities, is a prototypical colonial invention. Many Western ideas and institutions were heavily introduced there. Three former Ottoman provinces came together to form this colonial project. By redesigning national boundaries and establishing provinces based on

inhabitants' nationalities, the Western model was applied to these areas(Bacik,G. 2007).

Consequently, there is a wealth of information to be found in Iraq's historical background. This study does not imply that an Iraq has failed because it has not adopted Western policies and practises. What we have here is not a failure but rather a distinctive quality resulting from unique historical and cultural circumstances.

As mentioned above that Iraq was invaded by other countries which was USA, in fact, there were previous motivation to do that. The creation of the state, relations with neighbouring countries, and interactions with the international system's superpowers are all seen through the lens of oil. Moreover, The United Nations' interactions with Iraq have been marked by a conundrum brought on by the friction between diverse norms of international law, which can often be in conflict with one another. Even after ten years of sanctions before the invasion, many unanswered problems remain,

including how international law's most fundamental principles can be enforced without weakening the sovereignty of a State or severely impacting a population that had nothing to do with the sanctioned behaviour (Schrijver, N. 1993). The United States' strong desire for regime change in Iraq after 9/11 reveals that the country's abundant oil supply was a major factor in justifying the invasion of Iraq in 2003. For all reasons, the American invasion was an imperialist assault against Iraq's sovereignty, independence and territorial integrity (Akyuz, Z. C. 2011). Due to this occupation Overall, the Iraqi situation contains all the issues and data essential to a study of sovereignty, and this is true even if we ignore the historical dimension.

2.0 THE DEVIATION IN THE MEANING OF SOVEREIGNTY

Prior to the establishment of the United Nations, a number of academics asserted that the failure of the League of Nations to adhere to the idea that states should maintain their total sovereignty was one of the most important factors in the organization's demise (Eloranta, J. 2011). Due to the fact that the idea of sovereignty has already been abused in order to legitimise the internal tyranny of nations as well as the anarchy on the international level, the growth of international law has been stunted as a result of this. Numerous international conferences have been held, but none of them have been successful in resolving the unresolved difficulties between the nations or the dominance of powerful nations over less developed countries. Consequently, the war has developed into the definitive arbitrator in the power dynamics that exist between sovereign states (Mohammed H. Ghanem 1979, p 90-91).

This feature of jurisprudence did not conceal the danger that there was a risk of the United Nations falling apart if countries excessively adhered to their sovereignty. In addition to this, it demanded the engagement of nations on the international level in such a way that would contribute to the successful accomplishment of international cooperation (Ibid). On the other hand, the international regulation that was brought about by the UN Charter seems to place a focus on the sustaining of the idea of the sovereign equality within all countries (Ibid). It is important to point out that Article 2, Paragraph 1 of the United Nations Charter stipulates that" The organization is based on the principle of the sovereign equality of all its Members" (Article 2, Paragraph 1, the United Nations Charter). It is essential to realise that the provision of Article 23 paragraph 1 does not correspond with the notion of sovereign equality that exists among the members of the United Nations. In this respect, Aljomrd asserted that the Charter of the United Nations eschewed addressing sovereignty plainly, save for the term "the sovereign equality" of nations, which was the only exception to this rule (A. Aljomrd, nd).

In fact, after the collapse of the Soviet Union there was a change in the contours of international relations as a result of the appearance of indicators and signs that began to emerge on the horizon. The ambition of the United States of America, at the time of the fall of the Soviet Union, to formulate its own distinctive policies on the world level (Mohammed and Arkan,2017). Sovereignty as a concept needs to be framed in a way that meets the international scene, therefore governments must reevaluate the issue of sovereignty in a more realistic manner because of effects acting to decrease and narrow it. Accordingly, the notion needs refinement based on current international interactions, including ongoing conflicts and developing elements in all interested locations, in order to be more realistic (Al-Haj, 2013). Additionally, international monetary organisations like the International Monetary Fund (IMF) can play a crucial role in achieving this goal (International Monetary Fund (IMF) report,2016). The seriousness of this responsibility will be reflected in the state's ability to manage its finances. In addition to this, it is also possible to carry it out through various corporate institutions and multinational corporations in a manner that has the possibility of having an effect on the idea of sovereignty (Schrijver, 1999).

3.0 IRAQ SOVEREIGNTY AND MULTINATIONAL CORPORATIONS

In the early 1970s, the justification of a "new international economic system" included a stress on improved regulation of the actions of multinational corporations. At the time, conditions were more amenable to stricter oversight of multinational corporations. Although developed countries were concerned that developing countries would react negatively to transnational corporations' abuses or interference in local political processes, the "Group of 77" nonaligned (developing) countries insisted on their permanent sovereignty over natural resources and on the need to improve the supervision of transnational corporations' activities (Van, 2010). The concept of sovereignty is still suffered from ambiguity specially after the announcement of the draft Multilateral Agreement on Investment (MAl). The word "sovereignty" does not appear at all in the MAl draft, which has raised concerns not only among developing countries but also among Western countries. This agreement was a proposal for an agreement hammered out in private between OECD members in the years 1995 and 1998. The initiative's stated goal was to create a new body of universal investment rules that would give businesses unrestricted freedom to conduct financial activities wherever in the world, regardless of local regulations or people's legal rights (www.globalpolicy.org 2018). The proposal provided for the power of businesses to sue national governments in cases where national health, labour, or environmental legislation posed a threat to their business interests. When the document was made available to the public in 1997, the potential difficulty in regulating foreign investors was a major point of contention for civil society groups and underdeveloped countries, leading to significant condemnation of the agreement.

The political and economic situations in Iraq are extremely difficult. A country that is already fractured along ethnic and sectarian lines is struggling even more as a result of the conflict against Islamic State (IS) (Phillips, 2015). Reconstruction on a massive scale is required in order to achieve stabilisation and peacebuilding goals. Additionally, the country must work toward the development of an economic model that will lessen its reliance on oil by increasing economic diversity and bolstering the private sector. The ability of the Iraqi government to attract and mobilise investment is central to these problems. Rebuilding and revitalization of the economy are required direct investment from both domestic and international sources. Thus, The Iraqi government reached out to the Organisation for Economic Co-Operation and Development (OECD) in 2007 asking for assistance in the form of research, policy dialogue, and capacity building to help identify and promote policy improvements. Since that time, the OECD Iraq Project has provided assistance to the Iraqi government in a wide variety of economic policy efforts. These projects include the development and implementation of economic zones, public procurement, and infrastructure funding (Le Billon, 2005). During the final stage of the Iraq Project, which took place between December 2013 and June 2016, and was supported financially by the Swedish International Development Cooperation Agency (Sida), the primary objective was to enhance Iraq's investment and business climate.

However, the country is confronted with a number of difficulties, the most serious of which are issues of security and sovereignty, as well as the ongoing effort to gain control of the country's conflict-ridden regions (Diamond, 2004). Given these challenges, it is all the more important to establish a robust legal system that provides robust protections for property and contracts, as well as safeguards against political risks, to help mitigate the enormous security threats that exist in the majority of the territory (Costantini, 2013). Additionally, a shift is required from a public-sector-dominated economy to a more diversified one, where private investment can add to economic growth, job creation, and participation in worldwide value chains (Ahmed, 2019). Reforms that make Iraq more attractive to investors are now being implemented there. The establishment, financing, and insurance of projects now benefit from a more robust legal framework, which provides guarantees to alleviate security risks and intends to expedite procedures to enable investment projects. This makes it easier to undertake investment projects. However, Access and titles to land that can be used for investment projects provide a significant obstacle for

international investors in Iraq (Bartnick, 2017). Foreign investors need to defend their rights to land not only to get compensation for damages in time of conflict, but also because of the prevailing status of contested sovereignty over the region and the security dangers (OECD, 2016).

Another factor that contributes to the ambiguity is the lack of other legislation in areas that are of importance to international investors. The Iraqi Legislative Action Plan for the Implementation of WTO Agreements is the legislative "road map" for Iraq's future membership into the "world trade organization WTO". It mandates the enactment of competition and consumer protection legislation, which are essential for creating a fair playing field for businesses (https: / /www. state. gov/ reports / ,2019). The Competition Law and the Consumer Protection Law were both enacted into law by the Council of Representatives (COR) in 2010, however the commissions that are allowed under these laws have not yet been established. Investors do not have any legal protection against unethical business practises such as bid rigging or abusing a dominating position in the market if these commissions are not in place to protect them (ibid).

The process through which the government of Iraq promulgates legislation is generally murky and lends itself easily to arbitrary application. Publication in the official government gazette is obligatory for any regulations that impose taxes or fees on individual residents or private companies. In contrast, internal ministerial regulations are not required to be published.

On the other hand, several components of the British imperial machinery moved marine operations to new bases both during and after the First World War. For example, the machinery of the British Empire has a long-time control on Basra Port and they took extraterritorial institutional authority. Even after end the British Mandatory in 1932 the British political and commercial entities attempted to protect their interests by claiming institutional control over ships in transit (both to Iraq and Iran) and by invoking Iraqi sovereignty over Iraqi territory (Keshavarzian, 2016). Furthermore, central to British efforts to retain the wealth and power of the extraterritorial port, and the following global challenges they sparked, were increasing claims not merely to institutional authority but also to sovereign rights. The fact that they were successful in both endeavours demonstrates the spatial ambiguity that exists within the territorially permeable Shatt al-Arab estuary. The British were frequently reactive, but occasionally proactive, with such issues as the transition from river to sea (Young, 2019).

Based on international law conventions, knowledge is at the heart of complicity, whether that knowledge be knowledge of the crime itself or the foreseeability of the risk that the crime will occur. Typically, the knowledge of the crime or the foreseeability of the risk of the crime acts as the lever of responsibility.

Multinational corporations (MNCs) have played a significant role in the development of Iraq's economy, particularly in the oil and natural gas sectors. However, the presence of MNCs in Iraq has also been a source of controversy, as some have argued that MNCs have not always respected Iraq's sovereignty and have prioritized their own profits over the interests of the Iraqi people.

One issue is that MNCs have often been able to negotiate favorable terms for the extraction of Iraq's natural resources, leading to criticism that the Iraqi government has not received a fair share of the profits from these resources. This has led to concerns about the erosion of Iraq's sovereignty, as the country has not been able to fully control and benefit from its own resources. Another issue is that MNCs have sometimes been accused of ignoring or violating Iraqi laws and regulations, particularly in relation to environmental and social impacts (Cernic, 2008). This has led to concerns about the ability of the Iraqi government to effectively regulate the activities of MNCs and protect the interests of its citizens (Avant, 2005). Overall, the presence of MNCs in Iraq has had both positive and negative impacts on the country's sovereignty. Efforts to address these issues and balance the benefits and costs of MNCs will likely continue to be an important area of debate and concern in Iraq.

Multinational corporations (MNCs) can have both positive and negative impacts on fragile states, such as Iraq. On the positive side, MNCs can bring economic benefits to fragile states, including job creation, access to new technologies and markets, and infrastructure development. However, MNCs can also have negative impacts on fragile states, particularly if they are not regulated effectively.

One issue is that MNCs may prioritize their own profits over the interests and needs of the communities in which they operate (ibid). This can lead to negative social and environmental impacts, and can undermine the sovereignty of fragile states by reducing their ability to shape their own development paths. Another issue is that MNCs may not always respect the laws and regulations of fragile states, particularly if the states do not have strong governance systems in place. This can lead to concerns about corruption and the erosion of the state's authority.

After U.S.A invasion of Iraq, new type of multinational corporations was appeared, they were known as "privatized military firms (PMFs)". Companies in this sector are range from one-person consultancies run by retired generals to multinational conglomerates that rent out entire squadrons of fighter planes or teams of commandos. These businesses are currently active in more than fifty different nations. They were the deciding factor in the outcomes of conflicts in Angola, Croatia, Ethiopia/Eritrea, and Sierra Leone. The United States Military is becoming one of the industry's most important customers. There are currently about ten times as many private contractors as U.S. military soldiers in the Gulf as there were during the 1991 battle (Kenneth Bredemeier,2003).

In Iraq , the subsequent era of occupation, private companies played responsibilities comparable to those they already perform, in addition to new roles, such as training the post-Saddam army, paramilitary, and police forces (Singer, 2003). In point of fact, a significant number of the businesses that had solid footholds in the industry, such as Bechtel and Halliburton, were able to acquire the multi-billion dollar rebuilding contracts in part due to the fact that they already possessed the necessary security credentials (Mike, 2003).

However, there are certain legitimate security and legal concerns that have been brought to light by the rapid expansion of this new industry. In the course of their business, certain companies have been responsible for serious violations of human rights, and these same companies have been hired by authoritarian regimes, terrorist groups, rebel armies, and drug cartels Mohamad (Bazzi, 2001). In the same context of misbehave of these firms, interrogators and interpreters working for the PMF contractors at the Abu Ghraib jail in Iraq allegedly participated in the raping and torturing of detainees in 2004, or were present during these atrocities (George R. Fay,2004). In a separate incident that took place in 2004, a PMC language specialist was initially hired as a site manager, but he ended up serving with the 82nd Airborne Division and "patrolling downtown Mosul, one of Iraq's most dangerous cities... kicking in doors, rounding up suspected insurgents, and 'shooting and being shot at' as he helped make the streets safer" (David & Bruce ,2005). Furthermore, between the years 2005 and 2007, the private security company Blackwater was "engaged in at least 195 'escalation of force' episodes in Iraq... that featured the firing of rounds by Blackwater employees," according to a Blackwater report. Despite a contractual obligation that Blackwater employ only defensive action, the company's own reports indicate that its soldiers opened fire first in more than 80 percent of these occurrences (http://oversight.house.gov/documents about Blackwater,2007). Blackwater workers were only allowed to use firearms in self-defense and as a last resort, but on September 16, 2007, they killed seventeen unarmed Iraqi citizens and injured twenty others in one of the most high-profile events involving "privatized military contractors" PMCs in Iraq (Josh Meyer,2008).

The use of third parties has contributed to an increase in the level of internal conflicts within certain regimes, as well as military coups and mutinies. A particularly worrisome feature is that the industry's standing in the legal arena remains vague, which, given the great significance of the field in which they function and the potential for significant abuses, is extremely concerning (Kassebaum, 1999).

Overall, the presence of MNCs in fragile states like Iraq can be both a blessing and a challenge. Ensuring that MNCs operate in a responsible and transparent manner, and that the benefits of their presence are fairly distributed, will be important in order to maximize the positive impacts of MNCs on fragile states.

The preceding discussion makes it abundantly clear that matters pertaining to sovereignty are discussed with the utmost care and frequently take the form of assurances that the international action in question will not violate the "sovereignty" of the states that are in question, despite the fact that it does violate such sovereignty in practise.

CONCLUSION

The preceding discussion makes it abundantly clear that matters pertaining to sovereignty are discussed with the utmost care and frequently take the form of assurances that the international action in question will not violate the "sovereignty" of the states that are in question, despite the fact that it does violate such sovereignty in practise. As a whole, Iraq's economic and civil laws aren't up to par with those of other developed countries. Regarding anti-competitive business practises, there are limited restrictions. There is a lack of a comprehensive legal framework for investments. As a result of what has been discussed above, one of the many alternatives provided by the legislation is for the government of Iraq to take the initiative urge Iraqi Law system to issue new and clear rules that could enhance Iraq sovereignty. This is the course of action that should be taken. Furthermore, international law should have transparence in terms of Iraq sovereignty and provide extra rules that restrict multinational corporations activities in hos countries such Iraq.

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