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Published online by Cambridge University Press: 27 February 2017
As these words are written, the use of armed force to liberate Kuwait, and all the suffering and waste such use implies, becomes more likely. Given the primacy of the peaceful settlement of disputes in international law, I consider in this brief essay how the rule of law could play a role in this crisis. The UN Security Council’s call for the collection of information regarding possible war crimes by Iraqi officials and possible claims for damages arising out of the invasion was a welcome innovative effort, although it has yet to have any perceptible effect. That move, however, did not fully embrace the rule of law as a solution or make clear to Iraq the force that the rule of law can bring to bear. If the Security Council made an effort to implement the rule of law more forcefully, in my view it would greatly diminish the felt need to use armed force against Iraq.
1 SC Res. 674 (Oct. 29, 1990) (adopted 13-0-2, Cuba and Yemen abstaining). The portions of the resolution relating to financial claims provide:
8. Reminds Iraq that under international law it is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq;
9. Invites States to collect relevant information regarding their claims, and those of their nationals and corporations, for restitution or financial compensation by Iraq with a view to such arrangements as may be established in accordance with international law.
See also Lewis, U.N. Council Holds the Iraqis Liable on Kuwait Damage, N.Y. Times, Oct. 30, 1990,at Al, col. 6.
The resolution was in large part a British initiative that has not yet been pushed further. See Lewis, Thatcher Seeks U.N. Order on Reparations to Kuwait, N.Y. Times, Oct. 2, 1990, at A13, col. 5 (“Britain [on October 1] assumed the rotating presidency of the Security Council, a monthlong role that places it in an advantageous position to see its proposal carried out”). See also Bracken & Shubik, Baghdad Can Pick Up the Tab, N.Y. Times, Oct. 2, 1990, at A27, col. 1 (supporting the British initiative).
2 Such a process also could be generous to Iraq if only the frozen assets are relied upon to satisfy the claims because those assets likely would not begin to cover the claims involved. The amount of Iraqi assets located outside Iraq, and the proportion of that amount that is actually frozen, is unclear. The gross amount, however, is believed to be significantly less than the assets abroad of many other members of OPEC because of the Iran-Iraq War and Iraq’s estimated $50 billion foreign debt resulting from that war. The U.S. Commerce Department, for example, estimated that the total direct investment of Iraq in the United States as of 1988 was less than $500 million. In contrast, the Commerce Department estimated that the direct investment of Kuwait in the United States as of 1988 was $3.8 billion. See Farnsworth, Bush, in Freezing Assets, Bars $30 Billion to Hussein, N.Y. Times, Aug. 3, 1990, at A5, col. 1 (nat’l ed.).
3 See generally T. Schelling, the Strategy of Conflict 187–88 (1960).
4 See generally Trooboff, Foreign State Immunity: Emerging Consensus on Principles, 200 Recueil Des Cours 235 (1986 V).
5 In the United States, it would be difficult to argue that Iraq should not be accorded immunity inasmuch as the Foreign Sovereign Immunities Act (FSIA) does not provide any apparent basis for such a general denial and the Act is “the sole basis for obtaining jurisdiction over a foreign state in our courts.” Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct. 683 (1989). A distinction might be attempted on the ground that the norm violated in this case (the prohibition against aggression) is a norm of jus cogens. One tack would be to argue that there exists an implied waiver in the FSIA for violations of peremptory norms. See Belsky, Merva, & Roht-Arriaza, Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Calif. L. Rev. 367 (1989). See also Sohn, The United States and International Law, 1989–90 Am. Branch Int’l L. Ass’n, Proc. 26.
6 The UN Charter in Articles 39 and 41 gives the Security Council broad authority to call upon member states to take measures so as to maintain or restore international peace and security. That the term “measure” can include determinations regarding the immunity of a state seems clear. First, if the Security Council can authorize the use of armed force, it a fortiori should be able to authorize the use of the coercive power of courts. Second, the Security Council has taken several actions that are similar in that they necessarily affect the practice of municipal courts. See, e.g., SC Res. 661, para. 5 (Aug. 6, 1990) (which, in providing for an economic embargo, calls upon all states “to act strictly in accordance with the provisions of the present resolution notwithstanding any contract entered into or licence granted”); SC Res. 662, para. 2 (Aug. 9, 1990) (calling upon all states not to recognize Iraq’s annexation of Kuwait and “to refrain from any action … that might be interpreted as an indirect recognition of the annexation”). Potentially more restrictive is the requirement that the measure be undertaken so as to maintain or restore international peace and security. In this sense, I find it particularly noteworthy that the Security Council in its resolution calling upon states to collect information regarding possible claims thought it important to reaffirm the goal of the international community of maintaining international peace and security by seeking to resolve international disputes and conflicts through peaceful means.
7 Egyptian officials, for example, estimate the loss of wages by the more than one million expatriate Egyptian workers to be $ 1.1 billion per year. Kifher, Gulf Price Tag for Egypt: $2 Billion Loss to Economy, N.Y. Times, Sept. 4, 1990, at A10, col. 5.
8 The resolution, for example, could order the pooling of all currently frozen and future attached assets and direct all actions to enforce municipal judgments to a central body. Moreover, that administering body could be directed to give priority to, for example, judgments for human rights violations.
9 An economic embargo weakens in part the rule-of-law approach suggested in the text. Judgments can be rendered and frozen assets used to satisfy such judgments while an embargo is in place; but if a comprehensive embargo is effective, new Iraqi assets will not appear outside Iraq. On the other hand, if the embargo develops leaks, the rule-of-law approach potentially will have new assets to draw upon and may be able to seal the leaks effectively. In this sense, satisfaction of some judgments will need to await the end of the embargo. The complex interface between the embargo approach and the rule-of-law approach reflects the fact that the embargo is an aggregate approach that operates internationally, while the rule of law is a decentralized approach that operates transnationally. One line of inquiry would be the circumstances in which a rule-of-law approach, both in an economic sense and in terms of fairness, would be preferable to an embargo approach. The embargo, for example, can injure the implementing group as much as the target state or, as in the present case, may hit specific members of the implementing group particularly hard.
