Wednesday, August 24, 2005

Iraq's Constitution and International Law

Some versions of the proposed text for Iraq's Constitution have been posted here. Now Prof. D'Amato has already suggested there are possible conflicts between the proposed text's commitment to Islamic law and to international law. Which naturally leads to the legal question: in a conflict between domestic Iraqi law and international law, which law will prevail in the new post-Constitution Iraq?

In the Transitional Law, that is to say the interim constitution currently in force, international law holds an honored place. The Preamble announces that,

These people, affirming today their respect for international law, especially having been amongst the founders of the United Nations, working to reclaim their legitimate place among nations, have endeavored at the same time to preserve the unity of their homeland in a spirit of fraternity and solidarity in order to draw the features of the future new Iraq...

Even more importantly, Article 23 of the Transitional Law holds that:

The enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people. They enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed and to which it has acceded, and others that are deemed binding upon it, and in the law of nations. Non-Iraqis within Iraq shall enjoy all human rights not inconsistent with their status as non-citizens.

In other words, the transitional constitution is quite internationalist, and appeared to incorporate all human rights recognized by international treaties and customary international law. I haven't seen any mention of similar language in the proposed permanent Constitution. This may or many not matter. For now, I'll let our readers draw their own conclusions if similar internationalist language does not appear in the final Iraqi Constitution.


Blogger F said...

To be honest I don't think there's a particular difficulty here - the people of Iraq are perfectly entitled to decide to make international law a relatively subsidiary element of their national law inasmuch as they decide to be a dualist nation, if they choose to do this then that's fine. On the other hand a commitment within the Constitution itself to respecting international law in its dealings with other nations is far more important from my perspective.

The thing that concerns me most about the proposed Constitution, however, is the heavy American/Coalition influence in it.For example a Constitutional commitment to fight terrorism and not allow terrorists to use Iraq as base or passage. I wonder whether this really needs to be placed in the text of the Constitution, particularly given the (infamous) difficulties with defining terrorism historically. That appears to me to be clearly influenced by Coalition pressures and the insurgency (is defending your own country against an oppressive occupant [/perceived oppressor] an insurgency?? Hmm...), but to my mind Constitutions should be more general statements of national intent and rights and administration (language, separation of powers etc...) which are then fleshed out by judicial interpretation and legislation.

It worries me

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