When the U.S.-led Coalition Provisional Authority (CPA) dissolves on June 30, it will leave behind a series of enactments designed to remake significant parts of the Iraqi legal order. While the juridical and political basis for the CPA's enactments is shaky, any succeeding Iraqi authority is likely to hesitate before repealing them wholesale.
On May 16, 2003, the CPA issued Regulation 1, assigning itself "all executive, legislative and judicial authority necessary to achieve its objectives." Under this regulation, the CPA has issued, as of early June 2004, seven subsequent regulations, 89 orders, and thirteen memoranda, all with full legal force. These rules address banking, the media, de-Baathification, nongovernmental organizations, and incitement, among other matters. More recently, CPA officials have rushed to cover additional areas, such as traffic, procurement, intellectual property, elections, and the judiciary, before June 30. Some display a liberal economic and political spirit; others are purely administrative.
The CPA has relied on an expansive (and sometimes implausibly ambitious) reading of its authority. The 1907 Hague convention on the Laws and Customs of War requires occupying powers to respect the laws in force in the country, and United Nations Security Council Resolution (UNSCR) 1483, cited as a basis for CPA Regulation 1, called for compliance with the Hague convention. UNSCR 1483 did charge the CPA with restoring security and creating "conditions in which the Iraqi people can freely determine their own political future," allowing the CPA its more generous reading of its powers. But the subsequent UNSCR 1511, often cited in CPA legal documents, stresses both the provisional and shared nature of CPA responsibility by "reaffirming" the "temporary nature" of the "specific responsibilities" given to the CPA. In addition, UNSCR 1511 recognized the Iraqi Governing Council (IGC) and its ministries as embodying "the sovereignty of the state of Iraq during the transitional period." Thus the scope and intended longevity of CPA legal enactments—as well as the CPA's apparent laxity in consulting the IGC—seem to violate the spirit and even the letter of the international legal basis for CPA authority.
The political basis of CPA actions appears no more certain than the legal foundation. Almost all CPA orders were issued in English; they have been translated into Arabic only after going into effect. In all but a few matters, they have been drafted in secret, with little public consultation. Ayatollah Sistani has already expressed the view that the new Iraqi government should not feel bound by decisions taken under occupation.
Yet the CPA has crafted its enactments as if it expects to see many live beyond June 30. The March 2004 Transitional Administrative Law, the interim constitution, provides that CPA "laws, regulations, orders, and directives issued?pursuant to its authority under international law shall remain in force" until rescinded or amended by subsequent legislation. More subtly, some of the CPA's recent orders create regulatory and administrative bodies whose CPA-appointed senior officials have been made very difficult to remove. If the United States successfully implants a network of advisors in key ministries while maintaining a strong military presence, the result will resemble Great Britain's informal empire of the 1930s in Egypt, Iraq, and Transjordan.
But even if the United States beats a hastier retreat, any succeeding Iraqi government, no matter how nationalistic, will probably not remove all the CPA's legal enactments at once. Because the CPA's life has been short and many of its orders are barely operational, its legal changes have yet to fully insinuate themselves in the Iraqi polity. Yet critical institutions such as the judiciary, the electoral commission, and the Central Bank have begun functioning based on CPA orders. Thus, rather than abolish all CPA enactments immediately and reverting to all pre-2003 laws, any succeeding government will likely draft its own legislation piece by piece. Even under the optimistic electoral timetable now in place, a parliamentary body will not be seated until next year, and it will likely be some time before it is prepared to take up the host of issues handled in CPA enactments.
In almost all cases in the Arab world in which governments have been overthrown or colonial powers have departed, the new regime has affirmed the legal order it found when it assumed power. Indeed, the CPA itself, in Regulation 1, followed this pattern by affirming all pre-existing laws (unless they obstructed the work of the CPA).
Thus, succeeding Iraqi governments are likely to proceed carefully in discarding CPA enactments. Nonetheless, their nationalist sensibilities will be offended when they turn their attention to specific provisions. When Iraqi political and legal officials discover that multinational troops still are effectively granted extraterritorial status; that their vehicles must be given priority in traffic; that the official name of the country in some documents has been changed (from the "Iraqi Republic" to the "State of Iraq"); and that international agreements may—even absent an explicit provision—override requirements for open and competitive bidding in procurement, they will probably conclude that the CPA orders, while often liberal, are inconsistent with full sovereignty.
Nathan Brown is professor of political science and international affairs at George Washington University and author of Palestinian Politics after the Oslo Accord (Berkeley, CA: University of California Press, 2003).
