SEOUL — Let’s start with the obvious but often overlooked topic of what isn’t taking place in Iraq today. Commentary to the contrary, sovereignty is not being handed back to Iraqis on June 30; it isn’t even on the table.
The United States, as the occupying power, never possessed sovereignty in the first place under international law. Sovereignty cannot be alienated (displaced) by an occupying power, so it cannot be transferred to a provisional government. Rather, sovereignty remains suspended until restored through elections of a government that reflects the popular will of its citizens and thus possesses legitimacy.
More fundamentally, sovereignty is an attribute of statehood that comes in two forms: the Louis XIV “etat, cest moi” variety, and popular sovereignty based on democratic and constitutional principles. But both are based on the assumption that the state in question is supreme within its borders. Clearly, this is not the case if it is colonized or occupied, or if the vestiges of colonialism or occupation remain beyond the formal legal transfer of power.
By contrast, what is now taking place in Iraq and what will reach its climax on June 30 is the limited transfer of power. U.S. military forces will still be there and the occupation apparatus will remain intact, although it will be downsized and “cosmeticized” into a huge U.S. diplomatic and reconstruction mission.
Presumably, the Coalition Provisional Authority will then melt away, to be replaced by a separate security arrangement between the U.S. and the provisional government that allows for a continued U.S. role in Iraqi security. And that government will remain necessarily provisional until a permanent constitution is drafted and approved by a constituent assembly and popular elections are held sometime during the next two years. This is not to disparage the effort now being made but rather to place it in its proper political context.
A free and fair electoral process is crucial because that is the only way that legitimacy can be conferred on a government, thereby making it effective. Otherwise, a government’s right to rule is open to challenge domestically and in terms of international law.
An effective government is a sine qua non for statehood, along with a population to rule and a territory to administer. Recognition by its peers, or other sovereign states, in the international arena is generally symbolized by membership in the United Nations, which makes statehood hard to refute.
Legitimacy and effectiveness generally go hand in hand, reinforcing each other. Although the strong presumption is that an effective government is also legitimate, in the real world, matters are not so cut and dried.
For example, during the Cold War, the U.S. viewed the so-called peoples’ democracies in Eastern Europe that were militarily imposed by the Soviet Union as illegitimate Soviet satellites (although the U.S. recognized most of them diplomatically).
However, three of these states, e.g., the Baltic republics that had been forcibly incorporated into the Soviet Union, were referred to as “captive nations.” Although they were not recognized, exile groups maintained legations in Washington to symbolize U.S. disapproval of their annexation.
The process that begins July 1 will last until a permanent constitution is approved by an Iraqi legislative body and elections are held to establish a legitimate government. The U.S. is basically bowing out of this process (other than to help maintain security) and has invited the U.N. back in to oversee it.
This is the most critical phase, where the struggle for Iraqi democracy will be won or lost. Can the Shiites, Sunnis and Kurds bury their political differences or at least live with them in a power-sharing arrangement within a federal structure? They have begun to take that the first positive steps as reflected in the interim constitution agreed to last week in Baghdad and just approved by the American head of the Provisional Authority, Paul Bremmer.
But this draft constitution is still only a piece of paper and political life must be breathed into it. That will come at a heavy cost, as demonstrated by the horrific bombings that claimed 180 lives on March 2 in an attempt to keep the divide between Iraqi groups from closing. The struggle for democratic government in Iraq will go on for a long time given the lack of democratic traditions, infrastructure, political institutions, culture and leadership that can inspire the growth of democratic values.
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